CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (October 1-31, 2011)
Experts: Hypothetical Questions; Ultimate Issue Testimony. People v. Vang (10/31/2011, S184212) 52 CA4th 1038: Hypothetical questions posed to an expert must be based on the evidence; the questioner is not required to “disguise” the fact that such a question is based on the case evidence. The use of hypothetical questions based on the case evidence do not improperly invade the province of the jury, which still must decide whether to credit the expert’s opinion and determine whether the facts used to construct the hypothetical are the actual facts based on the evidence. Expert testimony on ultimate issue not resolved. (But see People v. Killebrew (2002) 103 CA4th 644; People v. Prince (2007) 40 CA4th 1179, 1227.)
Grants of Review
People v. Carbajal REV GTD (10/12/2011, S195600) 197 CA4th 32: Was retrial on sentencing allegations under the one strike law (PC 667.61) barred by double jeopardy although the first jury never reached or resolved the issue?
People v. Williams REV GTD (10/12/2011, S195187) 197 CA4th 339: Can a conviction for robbery be based on the use of force in the attempt to escape after committing the crime of theft by false pretenses as opposed to theft by larceny?
People v. Buza REV GTD (10/19/2011, S196200) 197 CA4th 1424, mod. 198 CA4th 1234a: Does the compulsory collection of biological samples from all adult felony arrestees for purposes of DNA testing (PC 296 (a)(2)(C), 296.1(a)(1)(A)) violate the Fourth Amendment to the United States Constitution?
People v. Vangelder REV GTD (10/19/2011, S195423) 197 CA4th 1: Did the trial court prejudicially err in refusing to allow expert testimony about the accuracy of the breath-testing devices used in this case?
California Courts of Appeal (October 1-31, 2011)
Is MDMA On The Controlled Substance List? People v. Le (8/29/2011, B224042) 198 CA4th 1031: The controlled substances schedules in the code don’t list MDMA, aka 3,-4-methylenedioxymethamphetamine, so possession of MDMA isn’t a crime. People v. Davis (10/26/2011, B229615) 200 CA4th 205 disagreed with Le and held that the jury should decide this issue.
Identification Of Defendant From Surveillance Video. People v. Larkins (10/4/2011, E050725) 199 CA4th 1059: The trial court did not abuse its discretion in allowing lay witness to testify that he recognized a man depicted in security video as the defendant because he had seen the defendant in 20-30 videos from other gyms, even though the witness had never seen the defendant in person. The Court of Appeal disagreed with appellant that People v. Mixon (1982) 129 CA3d 118, 128 indicated that the opinion of the identity of persons depicted in surveillance photos or video is only admissible if the witness testifies from personal knowledge of the defendant’s appearance at or before the time the photo is taken.
Imperfect Self Defense. People v. Valenzuela (10/12/2011, B226848) 199 CA4th 1214: Trial court had no sua sponte duty to instruct on both perfect and imperfect self defense where there is no evidence defendant’s fear of harm was unreasonable.
Mutual Combat. People v. Valenzuela (10/12/2011, B226848) 199 CA4th 1214: The trial court did not err by giving mutual combat instructions. There was substantial evidence of mutual combat based on the manner in which the vehicles engaged in a chase, during which gunfire was exchanged.
Compelling Another To Commit A Crime. People v. Valenzuela (10/12/2011, B226848) 199 CA4th 1214: There was no error where the court instructed the jury on compelling another to commit a crime.
Gang Enhancement And Use Of Firearm. People v. Valenzuela (10/12/2011, B226848) 199 CA4th 1214: The gang enhancement was erroneously imposed in addition to the PC 12022.5 enhancement. The trial court erred in imposing a 15-year minimum parole eligibility period under PC 186.22(b)(5) for several attempted murder counts. The jury found only that a principal personally used a firearm in the commission of these counts. Therefore, appellant was not subject to an enhancement for participation in a criminal street gang in addition to the gun use enhancement.
Crawford: Medical Operative Reports. People v. Davis (10/12/2011, C061536) 199 CA4th 1254: Medical operative reports relied on by an expert witness are not testimonial for purpose of the Confrontation Clause. Appellate court rejected appellant’s argument that appellant’s 6th Amendment rights, on confrontational grounds, were violated. Summarizing the relevant U.S. Supreme Court opinions on this issue, the court held that the reports did not constitute an out-of-court substitute for trial testimony, so as to invoke the protection of the Confrontation Clause. (Crawford v. Washington (2004) 541 US 36; Davis v. Washington (2006) 547 US 813; Melendez-Diaz v. Massachusetts (2009) 557 US ____ [174 LEd2d 314:129 SCt 2527] [165 LEd2d 224; 126 SCt 2266]; Michigan v. Bryant (2011) 562 US ____ [179 LEd2d 93; 131 SCt 1143]; Bullcoming v. New Mexico (2011) 564 US ____ [180 LEd2d 610; 131 SCt 2705].
Self Defense: Imminent Danger. People v. Lopez et al. (10/14/2011, F059255) 199 CA4th 1297: In the context of self-defense, CALCRIM 505, 571, and 604 correctly state the law of imminent danger and future harm.
Moving To Withdraw A Plea From A Suspended Sentence. People v. Williams (10/14/2011, B230060) 199 CA4th 1285: Under PC 1018, a motion to withdraw plea is not timely if it is made after judgment. Appellant pled no contest to PC 666 and was sentenced to three years in state prison. Execution of sentence was suspended and he was granted formal probation. Four-plus months later, hoping to take advantage of the modification of PC 666, he filed a motion to withdraw his plea. The appellate court upheld the denial of the motion, observing that under the plain language of the statute, the critical question is whether judgment has been suspended. If judgment is suspended and probation is granted, a defendant has six months within which to apply to withdraw his plea. Otherwise the application must be made before judgment. Here, judgment occurred with imposition of the prison sentence, regardless of the fact that execution of sentence was suspended and probation granted.
The Mens Rea For The Indirect Infliction Of Harm In PC 273a (A) (Child Endangerment) Is Criminal Negligence. In re L.K. (10/18/2011, F060662) 199 CA4th 1438: Although the juvenile court incorrectly found that the act was direct infliction and then applied the wrong standard, substantial evidence nevertheless supported a finding of indirect infliction of harm, i.e., any person who willfully causes or permits a child to suffer, for which the applicable mens rea of criminal negligence exists.
Sex Offense: Capacity To Consent – Alleged Victim’s Demeanor. People v. Miranda (10/18/2011, B224163) 199 CA4th 1403, modified at 2011 Cal. App. LEXIS 1405: The victim’s capacity to consent in a sex offense can be established by the jury’s assessment of the victim’s demeanor.
Merger: Shooting At Vehicle And Felony Murder. In re Lucero (10/24/2011, C066501) 200 CA4th 38: The merger of the crime of shooting at an occupied vehicle with homicide, to preclude application of the felony murder rule, was a new rule announced in People v. Chun (2009) 45 CA4th 1172, and may be applied retroactively.
Courtroom Security: Deputy Next To Defendant During Testimony. People v. Sanchez (10/25/2011, E048972) 200 CA4th 70: The court abuses its discretion when it places a deputy near the defendant while he testifies on the basis of a general courtroom policy with no case-specific concerns for security.
Judge Improperly Made An Argumentative Modification Of CC 801. People v. Santana (10/26/2011, D059013) 200 CA4th 182: CALCRIM 801defines mayhem by describing the kinds of injuries which qualify as mayhem. The trial judge erroneously deleted that description and instead told the jury that a gunshot wound qualifies. The instruction misdirected the jury regarding the specific intent required for mayhem because it focused on the means by which appellant intended to inflict injury and failed to inform the jury of the nature and severity of the type of injury required. The nature and severity of the injury intended is what distinguishes mayhem from other assaultive crimes in which an injury is intended. The instruction was also prejudicially argumentative because it “improperly suggested to the jury that as long as it found that Santana intended to inflict a gunshot wound, it could convict him of attempted mayhem.”
Gang Enhancement: PC 12022.53 And PC 186.22(b)(1)(C). People v. Robinson (10/28/2011, A126064) 200 CA4th 552: PC 12022.53(e)(2) specifically authorizes the imposition of both the section 12022.53(b) and the PC 186.22(b)(1)(C) enhancements in this case involving gun use in the commission of a specified felony by a gang member.
U.S. Supreme Court
(October 1-31, 2011)
Shaken Baby Syndrome: Sufficiency Of Evidence. Cavazos v. Smith (10/31/2011, No. 10-1115) ____ US ____ [2011 U.S. LEXIS 7603]: Ninth Circuit erred by reversing judgment based on insufficient evidence where evidence existed to support the judgment. After presentation of substantial expert testimony on both sides for shaken baby syndrome (SBS), a jury convicted Smith of assault on a child resulting in death (PC 273ab). The Ninth Circuit reversed the state judgment, finding insufficient evidence for the state’s experts to opine that Smith assaulted her seven-week-old grandson. The Supreme Court reversed, finding the circuit court misapplied the sufficiency of the evidence standard set forth in Jackson v. Virginia (1979) 443 US 307.
9th Circuit Court of Appeals
(October 1-31, 2011)
Death Penalty – IAC Re: Mitigation. James v. Shriro (10/12/2011, 9th Cir. No. 08-99016) 2011 U.S. App. LEXIS 20652: Failure to investigate defendant’s social history which included trauma and drug abuse was ineffective assistance of counsel.
Ninth Circuit Holds That EC 1108 Instruction Does Not Violate Due Process. Schultz v. Tilton (10/27/2011, 9th Cir. No. 09-55998) 659 F3d 941: Jury instruction does not violate due process where it informs the jury that it may not find defendant guilty of the charged offense based on prior sex acts which are proved by a preponderance of the evidence. The instruction given in Schultz’s case reflected both the 1999 and 2002 revisions and clearly informed the jury it could only convict him of the present charges if the evidence as a whole proved him guilty beyond a reasonable doubt.