CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (October 1-31, 2012)
Confrontation: Melendez-Diaz. People v. Rutterschmidt (10/15/2012, S176213) 55 CA4th 650: The prosecution presented the testimony of an expert that analysts working under his supervision had tested the victim’s blood and that the tests showed the presence of the suspected medications. The data from the tests was given to clerical staff who generated reports. The reports were not introduced into evidence. The trial court overruled the objection that the testimony resulted in a violation of appellant’s Sixth Amendment right to confrontation. The appellate court affirmed, finding no violation, and, even if there was, the error was not prejudicial. Without deciding whether it was error for the trial court to allow the testimony of the toxicologist, the Supreme Court ruled that because of the overwhelming evidence against appellant, any error was harmless.
Confrontation: Melendez-Diaz. People v. Dungo (10/15/2012, S176886) 55 CA4th 608: Statements describing objective facts in an autopsy report prepared by a nontestifying pathologist that a testifying expert relies upon and relates to a jury are not testimonial for purposes of the Sixth Amendment confrontation right. The report was simply an official explanation of an unusual death, and such records are ordinarily not testimonial. (Melendez-Diaz v. Massachusetts (2009) 557 US 305.) Because the report was not testimonial and its primary purpose was not for criminal prosecution, appellant’s Sixth Amendment confrontation rights were not violated.
Confrontation: Melendez-Diaz. People v. Lopez (10/15/2012, S177046) 55 CA4th 569: Allowing the testing analyst’s colleague to testify regarding a laboratory report on a defendant’s blood alcohol level did not violate confrontation principles. To be testimonial, (1) the statement must be made with some degree of formality or solemnity, and (2) the statement’s primary purpose must pertain to a criminal prosecution. The court did not have to determine the primary purpose of the report regarding appellant’s BAC because “the critical portions of the report were not made with the requisite degree of formality or solemnity to be considered testimonial.”
Insanity Instruction At Guilt Trial Was Error. People v. Mills (10/18/2012, S191934) 55 CA4th 663: The question of a defendant’s sanity is irrelevant at the guilt phase of a bifurcated trial under PC 1026 and, as a result, the court should not instruct the jury on the subject. The instruction was improper under state law because it was irrelevant to any issue raised by the guilt phase evidence. The purpose of bifurcation is to remove entirely from the first stage of the trial any issue as to legal sanity. The defendant is presumed to be sane for procedural purposes, not for any evidentiary purpose. The instruction on presumption of sanity complicated matters by injecting the subject of sanity before it was at issue.
California Supreme Court (October 1-31, 2012)
Grants of Review
People v. Palmer REV GTD (10/10/2012, S204409) 2012 Cal. App. Unpub. LEXIS 4951: (1) Is a claim that the trial court failed to establish a factual basis for defendant’s plea within the meaning of PC 1192.5 not cognizable on appeal where defense counsel stipulated to a factual basis for the plea? (2) If the claim is cognizable, did defense counsel’s bare stipulation to a factual basis without reference to any document describing the facts sufficiently establish a factual basis?
People v. Schaeffer REV GTD (10/31/2012, S205260) 208 CA4th 1: In a case involving possession of drugs and misdemeanor drug use, could the trial court, as a condition of probation, require defendant to “[r]eside at a residence approved by the Probation Officer and not move without his/her prior approval”?
In the following cases in which briefing was previously deferred pending further order of the court and decision in People v. Favor (2012) 54 CA4th 868, the court ordered action deferred pending decision in People v. Chiu REV GTD (8/15/2012, S202724) 2012 Cal. App. Unpub. LEXIS 3044, which presents the following issue: Does a conviction for first degree murder as an aider and abettor under the natural and probable consequences doctrine require that premeditated murder have been a reasonably foreseeable consequence of the target crimes or only that murder have been such a consequence?
People v. Avila REV GTD (5/18/2011, S191317) 2011 Cal. App. Unpub. LEXIS 966
People v. Armstrong REV GTD (11/30/2011, S196985) 2011 Cal. App. Unpub. LEXIS 6500
People v. Wollett REV GTD (5/9/2012, S200871) 2012 Cal. App. Unpub. LEXIS 1143
The following cases were transferred for reconsideration in light of People v. Caballero (2012) 55 CA4th 262:
People v. Ramirez REV GTD (6/22/2011, S192558) 193 CA4th 613
People v. J.I.A. REV GTD (9/14/2011, S194841) 196 CA4th 393
Review in the following case was dismissed in light of People v. Villatoro (2012) 54 CA4th 1152:
People v. Rouse REV GTD (5/23/2012, S201479) 203 CA4th 1246
Review in the following case was dismissed in light of People v. Aranda (2012) 55 CA4th 342:
People v. Moore REV GTD (6/15/2011, S192529) 193 CA4th 746
Review in the following cases was dismissed in light of People v. Aranda (2012) 55 CA4th 342 and People v. Brown (2012) 54 CA4th 314:
People v. Muniz REV GTD (12/14/2011, S196916) 198 CA4th 1324
California Courts of Appeal (October 1-31, 2012)
Multiplicity: Single Act Of Indecent Exposure Seen By Multiple Witnesses. People v. Smith (10/1/2012, B235091) 209 CA4th 910: Where multiple witnesses see a single act of indecent exposure, the defendant may be convicted of only one count arising from that conduct. One continuous act of indecent exposure cannot result in multiple convictions where the conduct is viewed by multiple consecutive victims. Section 314 “prohibits the exposure itself and not the specific exposure to a person.” The number of witnesses is not an element of the offense.
Gang Allegation: Active Participation – Possession Of Loaded Firearm. People v. Infante (10/2/2012, G046177) 209 CA4th 987: Gang member’s possession of a loaded firearm can prove the “felonious conduct” required for active gang participation where the possession is independently punishable as a felony.
Plea Bargain: Juvenile. In re Alonzo J. (10/10/2012, C068046) 209 CA4th 1301: The juvenile court erred under California Rules of Court, rule 5.778, when it foreclosed a minor from accepting a prosecution plea bargain offer and failed to determine, by independent inquiry, whether there was a factual basis for the plea.
Second Amendment: Concealed Dirk Or Dagger. People v. Mitchell (10/11/2012, D059254) 209 CA4th 1364: Law which prohibits the carrying of a concealed dirk or dagger does not violate the Second Amendment.
DNA: Y-STR Technique/Standardization Of RFU Level. People v. Stevey (9/18/2012, pub’d 10/12/2012, C062760) 209 CA4th 1400: (1) The Y-STR procedure for DNA analysis and to generate probabilities is not a new scientific technique that necessitates a Kelly hearing. (2) The protocol for use of RFU (relative florescent units) levels to interpret PCR/STR DNA test results need not be nationally standardized. A criminalist testified regarding the results of DNA testing on a saliva sample, using the PCR/STR procedure. Appellant argued that the interpretation of those results should have been subjected to a Kelly prong-one hearing because the use of RFU levels is not nationally standardized. He argued that the laboratory’s high RFU threshold may have excluded exonerating evidence. The “fact that some laboratories interpret results more conservatively than others does not indicate the absence of general acceptance of a scientific technique.”
Sex Offender Registration: Certificate Of Rehabilitation. D.M. v. Dept. of Justice (10/12/2012, A131325) 209 CA4th 1439: Defendant who was convicted of oral copulation with a minor and formerly required to register as a sex offender is relieved of the registration requirement after obtaining a certificate of rehabilitation.
LWOP For Juvenile As Cruel And Unusual Punishment. People v. Moffett (10/12/2012, A133032) 209 CA4th 1465: Presumption that juvenile, convicted as adult of felony murder with special circumstances as non-shooter without intent to kill, should be sentenced to LWOP amounts to cruel and unusual punishment.
Three Strikes: Misdemeanor Elevated To Felony By Gang Statute. People v. Rocco (10/16/2012, B229861) 209 CA4th 1571: Where defendant’s misdemeanor conviction is elevated to a felony because of a PC 186.22(d) gang finding, he is subject to sentencing under the Three Strikes law.
Proposition 36: Severance Of Nondrug Offense. People v. Barros (10/16/2012, A132148) 209 CA4th 1581: Where a trial court finds offenses were improperly joined and severs a disqualifying offense, the defendant has not been convicted of a nondrug-related felony and therefore merits Proposition 36 probation.
CC 875: Erroneous Definition Of Deadly Weapon. People v. Brown (10/17/2012, B2338770) 210 CA4th 1: CC 875 improperly allows the jury to convict a defendant of assault with a deadly weapon even if it rejects the idea the instrument was inherently deadly or employed in a manner capable of causing death or great bodily injury. CALCRIM 875 permitted the jury to find the BB gun was a deadly weapon on three theories: (1) it was inherently deadly; (2) it was inherently dangerous; or (3) it was used in a manner capable of causing and likely to cause great bodily injury. Only the first and third bases for criminal culpability come within the meaning of PC 245(a)(1), which prohibits assaults “with a deadly weapon or instrument.”
False Imprisonment: Entering Occupied Dwelling To Hide. People v. Islas (10/18/2012, B233087) 210 CA4th 116: There was sufficient evidence of felony false imprisonment where gang members went into family’s home to hide from police.
Conspiracy: Sufficiency Of Evidence. People v. Eroshevich (10/18/2012, B231411) 210 CA4th 229: New trial motion was improperly granted where there was sufficient evidence for a jury to convict appellants of conspiracies.
Possession Of Drugs For Personal Use Is Not “Street Terrorism.” People v. Anguiano (10/22/2012, D058578) 210 CA4th 323: Gang member’s possession of drugs for personal use while alone was not street terrorism (PC 186.22(a)).
Marsden: Abandonment Of Motion By Failure To Request Hearing. People v. Jones (10/22/2012, E052463) 210 CA4th 355: Appellant abandoned his Marsden motion where he failed to bring court’s attention to its failure to hold a hearing.
Apprendi: Does Not Require Consideration Of Enhancements In Determining Lower Included Offenses. People v. Alarcon (10/23/2012, B233444) 210 CA4th 432: Where defendant was charged with attempted murder and a gun use enhancement, the trial court did not err by failing to instruct on assault with a deadly weapon as a lesser included offense. People v. Wolcott (1983) 34 CA3d 92 held that under the accusatory pleading test, gun use and GBI enhancement allegations accompanying an attempted murder charge do not render assault with a deadly weapon a lesser included offense of attempted murder. Appellant maintained that Wolcott was overruled by Apprendi [Apprendi v. New Jersey (2000) 530 US 466] and People v. Seel (2004) 34 CA4th 535. The appellate court held that Wolcott controls.
Duty To Instruct Jury To Determine Purpose Of Medical Marijuana Program. People v. Jackson (10/24/2012, D058988) 210 CA4th 525: Operator of medical marijuana dispensary was denied right to present a defense under the Medical Marijuana Program Act (MMPA). The large membership of the collective who did not participate in the cultivation process did not, as a matter of law, prevent Jackson from presenting an MMPA defense. In determining whether a MMPA defense has been established, the trier of fact must consider whether the organization operates as a for-profit enterprise. Where a collective has a large membership of persons who do not participate in cultivation and there is evidence of a high volume of purchases, a trier of fact could reasonably conclude that the collective is outside the scope of the MMPA. Therefore, the jury should be instructed regarding these issues.
Proof Beyond A Reasonable Doubt: Prosecutor’s Use Of Diagram Was Misconduct. People v. Otero (10/29/2012, G045246) 2012 Cal. App. LEXIS 1128: The prosecutor’s use of a diagram of California to explain proof beyond a reasonable doubt was misconduct.
Simple Drug Possession Not LIO Of Possession While Armed With A Firearm. People v. Sosa (10/30/2012, B237628) 2012 Cal. App. LEXIS 1135: Because some of the controlled substances listed in HS 11370.1(a) (possession while armed with firearm) are not listed in HS 11350(a) (simple possession), it is possible to commit the greater offense without committing the lesser offense.