CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (October 1-31, 2009)
There were no relevant California Supreme Court cases.
Grants Of Review:
People v. Hajjaj REV GTD (9/30/2009, S175307) 175 CA4th 415: Did the trial court err in dismissing this case for violation of defendant’s statutory right to a speedy trial when a courtroom became available on the last day for trial, but the courtroom was too far away for trial actually to commence on that day?
People v. Wagner REV GTD (9/30/2009, S175794) 175 CA4th: (1) Did the trial court err in dismissing this case for violation of defendant’s statutory right to a speedy trial on the ground no criminal courtroom was available? (2) Should criminal cases facing dismissal on speedy trial grounds be given precedence over civil cases pursuant to PC 1050(a), either as a matter of law or under the circumstances of this case?
People v. Anderson REV GTD (10/14/2009, S175351) 2009 Cal. App. Unpub. LEXIS 5473: Was defendant entitled to a jury instruction, without a request, on accident as a defense to robbery, and, if so, was the court’s failure to give the instruction prejudicial?
People v. Rodriguez REV GTD (10/28/2009, S172198) 2009 Cal. App. Unpub. LEXIS 9455: Briefing deferred pending decision in People v. Brookfield REV GTD (1/17/2007, S147980) 2006 Cal. App. Unpub. LEXIS 9129 and People v. Jones REV GTD (1/17/2007, S148463) 2006 Cal. App. Unpub. LEXIS 9600, which include the following issue: Is a violation of PC 246 for shooting at an inhabited dwelling, which was committed for the benefit of a criminal street gang within the meaning of PC 186.22(b)(4)(B), a “felony punishable by … imprisonment in the state prison for life” within the meaning of section 12022.53(a)(17), such that sentence can be enhanced under section 12022.53(b) or (c) for the personal use and intentional discharge of a firearm? [This matter should have been reported in the CSC summary for the week of July 6, 2009.]
People v. Hernandez REV GTD (9/9/2009, S175615) 175 CA4th 940: On 10/22/2009 the court ordered briefing deferred pending decision in People v. Stevens REV GTD (2/13/2008, S158852) 156 CA4th 537, which presents the following issue: Did the trial court abuse its discretion in requiring a uniformed, armed deputy sheriff to sit immediately beside the defendant during his testimony?
People v. Martinez REV GTD (9/30/2009, S074624) – On 9/30/2009 the court requested the parties to file supplemental letter briefs addressing the following question in this automatic appeal: Are the police required to stop questioning and clarify a suspect’s ambiguous statement concerning an invocation of the right to remain silent?
The following case was transferred for reconsideration in light of People v. Brookfield (2009) 47 C4th 583:
People v. Rodriguez(10/28/2009, S172198) 2009 Cal. App. Unpub. LEXIS 9455
California Courts of Appeal (October 1-31, 2009)
People v. Strider (9/29/2009, B204571) 177 CA4th 1393: Trial court’s conviction of defendant for drug possession with a firearm is reversed; fenced yard was not a public place within the meaning of PC 12031.
People v. Smith (9/29/2000, A118208) 177 CA4th 1478: Robbery – “Inside Job”: Where the retail store owner consented to a taking of store property by third persons (an “inside job” set up by the owner), that occurs while store is under control of employees who are unaware of the owner’s consent; the owner’s consent does not vitiate the “felonious taking” element of robbery.
People v. Gordon (10/2/2009, B209075) 177 CA4th 1550: Defenses – Collateral Estoppel: Under principles of collateral estoppel, defendant could not be prosecuted for possession of firearm in court trial following severance of counts after jury acquitted him of all charges relating to the incident where he allegedly possessed the gun, since contested issue of identity crucial to guilt in both proceedings was necessarily decided in his favor in the jury trial that preceded the court trial. (See Ashe v. Swensen (1970) 397 US 436, 443 [25 LEd2d 469; 90 SCt 1189].)
People v. Galan (10/5/2009, B209903) 178 CA4th 6: Discovery – Denial Of Pitchess Motion: Where defendant’s undisputed extrajudicial statements are reasonably consistent with officer’s description of event, Pitchess discovery is foreclosed, because notwithstanding defense counsel’s declaration to contrary, client implicitly acknowledged officer was truthful.
People v. Cavallaro (10/6/2009, H032499) 178 CA4th 103: Mandatory lifetime sexual offender registration (PC 290) of a defendant convicted of PC 288(c)(1) (lewd and lascivious acts on 14- and 15-year-old victims at least 10 years younger than defendant) is not a violation of equal protection.
People v. Coyle (10/9/2009, C058218) 178 CA4th 209: Murder – Multiplicity: Three convictions for murder based on a single criminal act were improper. Coyle was charged with three counts of first-degree murder with gun enhancements: murder in the course of a robbery, murder in the course of a burglary, and murder, all against the same victim. He was convicted on all three counts, with special circumstances in the first two and an inherent finding of malice in the third, and sentenced to life without parole (LWOP) tripled under the Three Strikes law. The appellate court agreed with appellant’s contention that he could not be properly convicted on all three counts, because they all alleged the same crime, merely under alternative theories. However, it agreed with the People’s contention that the judgment could be consolidated to reflect a single conviction with all of the findings inherent in the three convictions returned at trial. Accordingly, the court reversed and vacated two of the three murder convictions, and modified the third conviction to reflect the robbery murder and burglary murder special circumstances, a finding of malice, and true findings as to all accompanying firearm enhancements. The court also accepted the prosecutor’s concession that a sentence of LWOP cannot be tripled under the Three Strikes law, and accordingly modified the sentence on the murder count to a single LWOP.
People v. Bleich (10/9/2009, D053808) 178 CA4th 292: Factual Innocence – Standard And Burden Of Proof: Petition for factual innocence was properly denied where appellant failed to sustain her burden that she should not have been subjected to criminal prosecution.
People v. Vasquez (10/13/2009, B213000) 178 CA4th 347: Requirements For The Gang Enhancement: PC 186.22(b) is an enhancement for crimes done for a gang. There are two Ninth Circuit cases (Briceno v. Scribner (9th Cir. 2009) 555 F3d 1069; Garcia v. Carey (2005) 395 F3d 1099) which say that because PC 186.22(b) requires that the crime be committed with the specific intent to promote the gang, it is insufficient to show mere membership in the gang coupled with an expert’s generic testimony that all gang members commit crimes with the specific intent to promote the gang. Vasquez follows California cases which reject the Ninth Circuit’s position.
Smith v. Superior Court (10/13/2009, A124763) 178 CA4th 373: Speedy Trial – No Grace Period When Defendant Did Not Waive Time: Trial court erred in refusing to dismiss charges on grounds of denial of speedy trial under PC 1382. Judge continued matter because attorney for the co-defendant was ill, and then applied 10-day grace period of PC 1382. Ten-day grace period did not apply to objecting defendant who had never waived time, using plain-language of PC 1382 as standard. No good cause found under PC 1050.1 to continue case into grace period.
People v. Henning (10/14/2009, C060371) 178 CA4th 388: Defendant had right to enter an NGI plea over counsel’s objection, but the error in failing to allow him to do so was harmless where there was insufficient evidence of insanity.
People v. Villa (10/15/2009, C059808) 178 CA4th 443: PC12021(e) (juvenile adjudged ward for specified offense prohibited from possession of a firearm) and PC 12031(a) (prohibited possession of a loaded firearm in a public place) do not violate an individual’s Second Amendment right to bear arms.
People v. Pakes (10/16/2009, H032734) 179 CA4th 125: Culpability for evading police with willful or wanton disregard for public safety (VC 2800.2) is not dependent on whether the pursuing police officer is behind defendant’s vehicle.
People v. Pakes (10/16/2009, H032734) 179 CA4th 125: Child Endangerment – Relationship To Child: Defendant who was friend of family and spent a lot of time with them could be considered to have care or custody when he took child to job site with him, and endangered her while driving home and getting into high speed chase. Distinguishes People v. Heitzman (1994) 9 C4th 189 [daughter who visited elderly father and knew of neglect by other family members could not be convicted of elder abuse].)
People v. Smith (10/19/2009, B214460) 178 CA4th 475: The immediacy requirement of PC 422 (criminal threats) does not require an immediate ability to carry out the threat and can be based on all the surrounding circumstances and not words alone.
People v. Banos (10/19/2009, B194272) 178 CA4th 483: Crawford – Forfeiture By Wrongdoing: The equitable principal of forfeiture by wrongdoing permits the admission of out-of-court testimonial statements when defendant has rendered the witness unavailable to testify and did so to with the intent to prevent the witness from testifying or cooperating with authorities. Appellant and the victim had a lengthy relationship marked by numerous calls from the victim to police complaining of harassment and abuse. The victim also obtained a restraining order prohibiting appellant from contacting her. In 2004, appellant killed the victim and was eventually convicted of second degree murder. At the time of her murder, there was a pending hearing on appellant’s violation of the restraining order. In the trial, the court permitted introduction by the prosecution of prior statements the victim had made to police on the three occasions they had arrested appellant in connection with the reports of abuse. The three statements were found to be testimonial, subject to the protections of the Sixth Amendment confrontation clause, as victim was in a place of safety and there was no ongoing emergency. (Crawford v. Washington (2004) 541 US 36 [158 LEd2d 177; 124 SCt 1354]; People v. Cage (2007) 40 C4th 965.) However, in that substantial evidence supported the trial court’s finding that appellant killed the victim to prevent her from cooperating with the authorities and testifying, under equitable principals, appellant forfeited his challenge to the violation of his rights under the confrontation clause. (Giles v. California (2008) 554 US __ [171 LEd.2d 488; 128 SCt 2678] [Giles II].)
Rehman v. Department of Motor Vehicles (10/20/2009, C060579) 178 CA4th 581: A blood alcohol content of .04% of a commercial-vehicle licensed driver is sufficient to suspend the license and to sustain the order of suspension following an administrative hearing.
People v. Vargas (10/22/2009, B211821) 178 CA4th 647: Crawford – Statements During Sexual Assault Exam: Statements made to a nurse conducting a sexual-assault examination for purpose of collecting evidence were inadmissible hearsay.
People v. Rotroff (10/22/2009, H033527) 178 CA4th 619:
Proposition 83 does not violate the single-subject rule, and imposing an inderminate term of commitment under the new SVPA provisions does not violate due process, equal protection or ex post facto principles.
People v. Jackson (10/22/2009, H032539) 178 CA4th 590: Criminal Threats – Victim’s Fear Must Be Reasonable: Reversal was required where the instruction on attempted criminal threats did not include the element of reasonable fear. Jackson was charged with making criminal threats, in violation of PC 422. The jury was instructed using the language of CALCRIM 1300, including the element that the victim’s fear must have been reasonable under the circumstances. However, when instructing on the lesser-included offense of attempted criminal threats, the jury was not instructed on the reasonableness element. The jury convicted Jackson of the lesser offense. On appeal, Jackson argued that the trial court’s instructions did not adequately apprise the jury of the factual elements required to support the lesser offense. The appellate court agreed, and concluded that in order to support a conviction for attempted criminal threat, the jury must find that the threat was conveyed so as to reasonably cause the victim to be in fear for his safety. The error here was reversible because the instruction allowed the jury to find Jackson guilty of the threats either because they found the threats reasonably caused the victims fear, or that the threats were so outlandish (“I’m going to blow your head off,” when the victims were already safely inside the house) that they would not have caused a reasonable person to have feared for his safety.
People v. Glenn (10/26/2009, G041245) 178 CA4th 778: The trial court had jurisdiction over an SVP commitment even though the commitment evaluation was based on a protocol held to be invalid.
In re C.C. (10/27/2009, C061230) 178 CA4th 915: Minor’s text messages containing vulgar language sent to his ex-girlfriend were not obscene.
People v. Jones (10/27/2009, E045100) 178 CA4th 853: The trial court did not err by using one prior arson conviction three times to enhance the sentence.
People v. Alvarez (10/28/2009, G040739) 178 CA4th 999: Sufficient evidence of force existed for sex offenses involving force where appellant held the minor victim and resisted her attempts to push him away. Appellant was convicted of six counts of forcible lewd conduct on a child under the age of 14, for kissing, digitally penetrating, and fondling his girlfriend’s nine-year-old daughter. The victim said she resisted the acts, but was unable to get away. On appeal, appellant contended that there was insufficient evidence to support the convictions because the prosecution failed to prove he used force above and beyond that which was necessary to perpetrate the offenses, citing People v. Schulz (1992) 2 CA4th 999. The appellate court disagreed, and added its disapproval of the Schulz holding. Appellant carried the victim to the couch, and resisted her attempts to push him away. He grabbed her hand to place it on his penis, and held her “tight.” The application of force was substantially different than that required to commit a lewd touching.
Section 654 did not bar punishment on each of several separate lewd acts upon the minor. Appellant also contended that the court should have stayed punishment for at least one of the lewd acts committed against the victim under section 654, as it was “preparatory” to committing another of the acts. The appellate court rejected the argument, finding that each lewd act was separate and distinct, and none of the acts were necessary to accomplish the others.
People v. Tuggles et al. (10/29/2009, C054250) 178 CA4th 1106:
(1) Impeachment testimony by the prosecution to counter permissible character evidence introduced by the defense is not hearsay that would be subject to exclusion. Tuggles and Mollett were convicted of first degree murder involving a firearm. The shooting resulted from an altercation between two groups. In cross-examination of a prosecution witness, the defense elicited testimony to show that Tuggles had a reputation for nonaggression and was not prone to violence. The prosecution then questioned the witness as to whether he had heard in the neighborhood that Tuggles wanted to shoot up the block where the victim resided. This statement was admissible as it was not hearsay offered for the truth, but was offered to undermine the witness’ prior testimony as to Tuggles’ reputation for non violence.
(2) CALCRIM 315 and 335 read together do not erroneously instruct the jury that an accomplice’s prior out-of-court statements can be used to corroborate his in-court testimony to convict of murder. Even if they were possibly confusing, court also gave CALCRIM 301 which informed jury that Shands’ accomplice status rendered testimony inadmissible without additional evidence. Counsel’s arguments were consistent with that interpretation.
(3) PC 1127c requires a flight instruction only if the prosecution relies on such evidence to prove guilt and not upon introduction of evidence that might be construed as flight.
(4) When a defendant moves for a new trial on the basis of juror misconduct, the trial court has the discretion to conduct a hearing to determine the truth of the allegations. In this case, appellants argued that the trial court erred in denying them access to the jurors’ personal contact information in order to investigate juror misconduct. The appellate court agreed that the trial court correctly refused to disclose personal contact information of the jurors but found that the trial court erred in concluding that it had no discretion to order the jurors to appear for a post-trial hearing after they declined to discuss the case with counsel. CCP 206 codifies the prerogative of jurors to speak to anyone, other than the court, post trial, and a juror cannot be compelled to speak to the parties if he/she chooses not to do so. CCP 237 sets forth the procedure by which counsel can attempt to obtain access to juror identification. If defendant makes a prima facie showing of juror misconduct, the trial court must conduct a hearing. Testimony by jurors may or may not be necessary, depending on the case, and the court has the discretion to order juror presence at a hearing on juror misconduct. Here, despite the trial court’s misunderstanding as to its discretion, the error was harmless beyond a reasonable doubt.
People v. Tuggles et al. (10/29/2009, C054250) 178 CA4th 1106: Forfeiture – Objection At Sidebar: Counsel may object at unreported sidebar, and when court later memorializes the timeliness of the objection “for the record” issue is preserved for review. (People v. Pinholster (1992) 1 C4th 865, 937.)
People v. Medlin et al. (10/29/2009, B209614) 178 CA4th 1092: Absent a finding by the court that reasonable cause exists to believe that the person arrested committed the offense for which the arrest was made, the person is not entitled to a finding of factual innocence under PC 851.8.
9th Circuit (October 1-31, 2009)
Jones v. Ryan (10/2/2009, 9th Cir. No. 07-99000) 583 F3d 626: Right To A Partisan Defense Expert:
The Ninth Circuit finds IAC for failure to get a “partisan expert,” that is, an expert confidential to the defense, with an obligation to further the interests of the defense, and who would assist in the evaluation, preparation, and presentation of the defense. There’s an excellent discussion here of the right to such an expert, which may be used to get the needed experts in all our cases, not just death penalty cases.