CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (October 1-31, 2010)
Circumstantial Evidence Instruction: Only Requested When Prosecution Relies Substantially On Circumstantial Evidence. People v. Bacon (S079179, 10/21/2010) 50 C4th 1082.
Subpoenas: Role Of Prosecutor In Third Party Subpoena Hearing. Kling v. Superior Court (10/17/2010, S176171) 50 C4th 1068: Prosecutor may participate and argue at hearing on documents produced as result of third-party subpoena duces tecum issued by criminal defendant, and may learn of identity of subpoeanaed party and documents sought. Trial court may protect privileged information by conducting parts of the hearing ex parte. See People v. Superior Court (Humberto S.) (2008) 43 C4th 737, 750-752.)
MDO: Statute Of Limitations. Lopez v. Superior Court (10/18/2010, S172589) 50 C4th 1055: The static factors of an MDO commitment, including whether the crime of conviction falls within the statute, must be litigated during the initial one-year commitment period.
Death Penalty: Issues. People v. Bacon (10/21/2010, S079179) 50 C4th 1082: Issues: 1) trial court’s exclusion of note written by defendant; 2) Miranda violation; 3) jury instructions; 4) sufficiency of evidence for prior-murder special circumstance; 5) admission of handgun possession evidence under PC 190.3(b); 6) penalty phase prejudice from failure to suppress defendant’s statements; 7) challenges to the death penalty law; and 8) cumulative effect of penalty phase errors.
PC 1382 Dismissal: No Available Courtrooms. People v. Engram (10/25/2010, S176983) 50 C4th 1131: A dismissal pursuant to PC 1382 is appropriate when there are no courtrooms available at the end of the speedy trial deadline.
Grants of Review
People v. Thomas REV GTD (10/13/2010, S185305) 2010 Cal. App. Unpub. LEXIS 5053: (1) Did PC 781 permit the prosecution of defendant for possession of cocaine in Madera County, where defendant lived and arranged his drug sales, even though he stored the contraband in adjacent Fresno County? (2) If not, should the Court of Appeal have considered whether defendant was prejudiced by the trial court’s denial of his motion to dismiss for improper venue?
People v. Mesa REV GTD (10/27/2010, S185688) 186 CA4th 773: Does PC 654 bar the imposition of separate sentences for the offense of active participation in a criminal street gang in violation of PC 186.22(a), and for the crimes used to prove one element of that offense—that the defendant has promoted, furthered, and assisted felonious criminal conduct by members of the gang?
People v. Correa REV GTD (7/9/2008, S163273) 161 CA4th 980: The court invited the parties to file supplemental letter briefs as follows: In Neal v. State of California (1960) 55 C2d 11, 18, footnote 1, this court said: “Although section 654 does not expressly preclude double punishment when an act gives rise to more than one violation of the same Penal Code section or to multiple violations of the criminal provisions of other codes, it is settled that the basic principle it enunciates precludes double punishment in such cases also. (People v. Brown (1958) 49 C2d 577, 591; see People v. Roberts (1953) 40 C2d 483, 491; People v. Clemett (1929) 208 C 142, 144; People v. Nor Woods (1951) 37 C2d 584, 586.)” (Italics added.) (1) Does the authority cited in this footnote support the italicized language? (2) In light of the language and purpose of PC 654, does it make sense to apply it to multiple convictions of the same provision of law? (3) Should this court reconsider what it said in Neal v. State of California, supra, 55 C2d at page 18, footnote 1, and instead conclude that PC 654 does not govern multiple convictions of the same provision of law? (See People v. Harrison (1989) 48 C3d 321, 340 (conc. opn. of Mosk, J.).)
California Courts of Appeal (October 1-31, 2010)
Challenge For Cause Based On Body Language. People v. Long (10/29/2010, H033197) 189 CA4th 826: Evidence did not support the prosecutor’s challenge to a prospective juror based on the juror’s “body language” and “the way he expressed himself” where the record was devoid of any mention or description of what was disturbing or unseemly about that juror’s body language or his way of expressing himself. (See People v. Allen (2004) 115 CA4th 542, 551-553.)
Robbery: Hotel Room As Inhabited Dwelling. People v. Long (10/29/2010, H033197) 189 CA4th 826: Evidence that the victim used hotel rooms as living quarters by socializing with a friend and eating meals in her rooms was sufficient to establish she was inhabiting a hotel room at the time defendant robbed her.
Probable Cause: Temporary Operating Permit. People v. Greenwood (B220315, 10/28/2010) 189 CA4th 742: Where police officers on patrol ran a computer check through the Department of Motor Vehicle records on a vehicle that had a temporary permit affixed to the rear window, and the records indicated that registration of the vehicle expired two years earlier and made no mention of a valid temporary permit, their stop of the vehicle was justified. (See People v. Dotson (2009) 179 CA4th 1045, 1050-1051; compare People v. Hernandez (2008) 45 C4th 295.)
Conspiracy To Commit Muder: Propriety Of Second-Degree Conviction. In re E.R. (A124706, 10/21/2010) 189 CA4th 466: A person can conspire to commit first-degree murder, but nonetheless commit a murder under circumstances that were not contemplated and which amount to no more than murder in the second degree. Generally, a conspiracy to commit murder is of the first degree (People v. Cortez (1998) 18 C4th 1223), but a defendant may not be found guilty of conspiracy to commit murder and also of the substantive offense of murder in the second degree.
Miranda: Deliberate “Two-Step” Strategy. People v. Camino (10/4/2010, G041887) 188 CA4th 1359: Substantial evidence supported the trial court’s finding that the interrogating officer did not deliberately employ a “question first-advise later” tactic where the officer testified that he had not deliberately withheld Miranda warnings, that he made no threats or promises, and that it was not department policy to Mirandize every potential witness or victim in a gang homicide case prior to the interview.
Vicarious Liability For Someone Else Using A Gun. People v. Camino (10/4/2010, G041887) 188 CA4th 1359: Insufficient evidence to support the jury’s finding that defendant vicariously discharged a gun, within the meaning of PC 12022.53(c), (e)(1) [20 years for the vicarious liability based on the gang participation], causing the decedent’s death where the decedent was the lone shooter, and the only armed individual in the defendant’s group. The decedent could not be the principal in his own murder. (People v. Antick (1975) 15 C3d 79, 91; see also People v. Superior Court (Shamis) (1997) 58 CA4th 833, 845.) The jury was misled by CALCRIM 1402, which applies to the gun/gang enhancement, given the lack of evidentiary support for the gun enhancement.
Molesting/Annoying A Child Can Occur Even Though No Specific Child Is Targeted. People v. Phillips (10/5/2010, B221932) 188 CA4th 1383: PC 647.6(a)(1) (annoying or molesting children) requires proof that the conduct is directed at a child or children, but no specific child or children need be the target.
Failure To Give Stand Alone Burden Of Proof Instruction Requires Reversal Unless Specific Offense Instructions Explain the Burden. People v. Aranda (10/6/2010, D055701) 188 CA4th 1490: Failure to give the reasonable doubt instruction requires reversal only if the error is not harmless beyond a reasonable doubt. The court forgot to read CALJIC 2.90 at appellant’s trial for voluntary manslaughter and participation in a street gang. Appellant argued this required a full reversal. The Court of Appeal held failure to give the reasonable doubt instruction is subject to harmless error analysis, and is not reversible per se. (Agreeing with People v. Flores (2007) 147 CA4th 199, 211.) As to the manslaughter conviction the error was harmless in light of the fact that all but one of the jury instructions regarding the murder charge and lesser offenses discussed the applicable burden of proof. So, under the totality of the circumstances, the instructions sufficiently explained the concept of reasonable doubt as to this offense. In contrast, the instruction relating to the substantive gang offense did not mention the prosecution’s burden to prove the offense beyond a reasonable doubt. The omission as to this charge was not harmless beyond a reasonable doubt considering the jury acquitted appellant of the gang enhancement which shares some elements. The gang offense was reversed.
Defense Witness Immunity. People v. Aranda (10/6/2010, D055701) 188 CA4th 1490: Court did not err in failing to grant use immunity to a defense witness since the 3 elements required, including the fact that the testimony must be completely exculpatory, were not met despite the defendant’s belief to the contrary. (People v. Stewart (2004) 33 C4th 425, 469; People v. Hunter (1989) 49 C3d 957, 973.)
Probable Cause. In re J.G. (10/6/2010, G042533) 188 CA4th 1501: Probable cause to arrest does not require mathematical precision. It requires only circumstances which a reasonably prudent man would find warrant suspicion.
Hit And Run: GBI Applies Only To Injuries Caused Or Aggravated By Failure To Stop. People v. Valdez (10/12/2010, G042837) 189 CA4th 82: A great bodily injury enhancement (PC 12022.7(a)) does not attach to a hit and run violation (VC 20001(a)) unless the injury was caused or aggravated by the defendant’s failure to stop and give aid.
Aider Liability For An Enhancement For Firearm Discharge. People v. Yang (10/13/2010, C062816) 189 CA4th 148: PC 12022.53(d) and (e)(1) provide for an enhancement of 25 years to life for firearm discharge by a non-shooting aider causing death in an enumerated gang-related felony. However, the enhancement did not apply because the defendant was not convicted of one of the qualifying offenses enumerated by statute. (See People v. Garcia (2002) 28 C4th 1166, 1174 [the defendant must be convicted of a substantive offense enumerated in the statute]; see also People v. Smart (2006) 145 CA4th 1216, 1226 [if enhancement defines the crime then the tail is wagging the dog].)
Transportation Of Medical Marijuana. People v. Wayman (10/15/2010, G042582) 189 CA4th 215: Jury properly instructed on transportation of medical marijuana when it was told that defendant must be a qualified user under the CUA (Compassionate Use Act), and the circumstances of his transportation had to demonstrate he was transporting the marijuana for his own medical use, and that the quantity transported and the method, timing, and distance of the transportation had to be reasonably related to defendant’s current medical needs. (CALCRIM 2361.)
Sentencing: Prior Drug Offenses. People v. Newton (10/18/2010, B216215) 189 CA4th 314: The HS 11370.2(a) enhancement for a prior drug offense conviction applies whether or not the prior conviction resulted in a term of imprisonment.
Battery On Custodial Officer. People v. Dooley (10/18/2010, C062665) 189 CA4th 322: A correctional officer in a county jail is a custodial officer for the purpose of PC 243.1 [battery on a custodial officer] regardless of whether defendant is under a civil or criminal commitment. The court distinguished In re Rochelle B. (1996) 49 CA4th 1212, 1217-1218, wherein that Court of Appeal held that a probation officer who is manning a juvenile hall is not a correctional officer, as the minor was not a prisoner, and the counselor was not a custodial officer. The defendant’s status as a noncriminal detainee was irrelevant.
Marsden Hearing Requirement When Defendant Wishes To Withdraw Plea Or Moves For A New Trial. People v. Sanchez (10/19/2010, F057147) 189 CA4th 374, mod’d 11/12/2010 at 2010 Cal. App. LEXIS 1934: When a defendant announces a desire to pursue a motion for new trial or withdrawal of plea on the ground of ineffective assistance of counsel, the court must conduct a Marsden hearing. Separate counsel is to be appointed only if the defendant makes a showing his right to counsel has been substantially impaired.
Corpus Delicti Rule Applies At Preliminary Hearing. People v. Powers-Monachello (10/20/2010, A124358) 189 CA4th 400: California’s corpus delicti rule was not abrogated by the 1982 amendment to the California Constitution article I, section 28, subdivision (d), called the “Right to Truth in Evidence.” The rule still applies at the preliminary hearing stage of a prosecution.
Conspiracy: Inconsistent Verdicts. In re E.R. (10/21/2010, A124706) 189 CA4th 466: There is no inconsistency in finding a minor guilty of conspiracy to commit first-degree murder and finding a separately charged count of murder to be in the second degree. People v. Cortez (1998) 18 Cal.4th 1223 held that the mental state required for conspiracy to commit murder is indistinguishable from premeditation to support first-degree murder. The separately charged murder resulted in a verdict of second degree along with a finding of conspiracy to commit murder. However, inconsistent verdicts are allowed. One can conspire to commit murder but nevertheless commit a lesser offense under circumstances that were not contemplated in the conspiracy.
PC 12022.53(d) GBI Enhancement Requires That Defendant Substantially Contributed To The Injuries. In re E.R. (10/21/2010, A124706) 189 CA4th 466: The enhancement pursuant to PC 12022.53(d) does not require that the injury be inflicted by the minor. The enhancement applies so long as the minor’s conduct was a substantial factor contributing to the injuries, and thus was a proximate cause of those injuries within the enhancement. The enhancement applied when minor fired a .25 caliber gun which killed one person, and the person with great bodily injury was shot with a .38 caliber bullet in the same occurrence.
Unprepared Prosecutor Granted Continuance Without Good Cause. People v. Graves (10/25/2010, B220129) 189 CA4th 619: Forcing an unprepared prosecutor to trial violates the legislative intent behind PC 1050 and 1382.
Right To Speedy Trial: Jointly Charged Defendant. Smith v. Superior Court (10/28/2010, A124763) 189 CA4th 769: In a joint prosecution, the preference for joint trials does not outweigh the defendant’s statutory right to a speedy trial when he has not waived time.
No Right To Pinpoint Instruction On “Cultural Variance.” People v. Assad (10/15/2010, C059777) 189 CA4th 187: The appellate court rejected appellant’s argument that a pinpoint instruction should have been given as to the “cultural variance” evidence and its impact on whether the prosecution had proven guilt beyond reasonable doubt. Such an instruction was duplicative of instructions given and impermissibly commented on the evidence.
Inhabited Dwelling: Business Traveler’s Room. People v. Long (10/29/2010, H033197) 189 CA4th 826: A business traveler’s room is an inhabited dwelling for purposes of first degree robbery while the occupant is doing business as well as resting.
9th Circuit Court Of Appeals
(October 1-31, 2010)
Witnesses: Self-Incrimination. Earp v. Cullen (10/19/10, 9th Cir. No. 08-99005) 623 F3d 1065: Petitioner was denied right to full and fair opportunity to prove claim of prosecutorial misconduct when court accepted anticipatory Fifth Amendment invocation by witness, made on the basis of possible perjury prosecution for present testimony.
Homicide: Insufficiency Of Evidence Defendant Shook Baby To Death. Smith v. Mitchell (10/29/10, 9th Cir. No. 04-55831) 2010 U.S. App. LEXIS 22603: On remand for second time from U.S. Supreme Court, Ninth Circuit reiterates grant of habeas on the grounds that no reasonable juror could have found defendant could have shaken her grandchild to death.
Per Se Reversal For Absence Of Counsel: What Is A “Critical Stage”? McNeal v. Adams (10/26/2010, 9th Cir. No. 08-16472) 623 F3d 1283: A per se reversal for the absence of counsel for purposes of United States v. Cronic (1984) 466 US 648, 658-659 is only available for critical stages. This characterization of a critical stage depends on “(1) whether the failure to pursue strategies or remedies results in a loss of significant rights, (2) whether counsel would be useful in helping the defendant understand the legal issues, and (3) whether the proceeding tests the merits of the defendant’s case. [citations] Any one of these factors may be sufficient to make a proceeding a critical stage.”