CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (September 1, 2007-September 30, 2007)
Grants Of Review:
People v. Caesar REV GTD (9/19/2007, S154793) 153 CA4th 114 and People v. Pacheco REV GTD (9/19/2007, S153739) 2007 Cal. App. Unpub. LEXIS 4342: Briefing deferred pending decision in People v. Towne REV GTD (7/14/2004, S125677), which includes the following issue: Do Cunningham v. California (2007) 549 US ____ [166 LEd 2d 856; 127 SCt 856], and Almendarez-Torres v. United States (98) 523 US 224, 239-247, permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant’s prior performance on probation or parole was unsatisfactory (California Rules of Court, Rule 4.421, subds. (b)(2) – (b)(5))?
People v. Lara REV GTD (9/25/2007, S155481) 2007 Cal. App. Unpub. LEXIS 5780: Petition for review after the Court of Appeal reversed an order extending an insanity commitment to the state hospital. The court ordered briefing deferred pending decision in People v. Price REV GTD (6/13/2007, S151207) 147 CA4th 955, which presents the following issue: Did the untimely filing of the petition to extend an insanity commitment deny defendant due process, when there was no good cause for the delay and the late filing allegedly left him with insufficient time to prepare for the hearing on the petition?
Review in Williams v. Superior Court REV GTD (10/18/2006, S145656) 140 CA4th 1422 was dismissed in light of [NF] Garcia v. Superior Court (8/9/2007, S127432) 42 C4th 63.
California Courts of Appeal (September 1, 2007-September 30, 2007)
People v. Ramirez (9/5/2007, F050212) 154 CA4th 1290: PC 246.3 (negligent discharge of a firearm) is not a lesser offense necessarily included in PC 246 (firing at an inhabited dwelling), disagreeing with People v. Overman (2005) 126 CA4th 1344. Using a shotgun, appellant engaged in a shoot-off with police officers from his apartment, during which neighboring apartments were struck by pellets from shotgun blasts. He argued that he could not be convicted of ten counts of negligent discharge plus three counts of firing at an inhabited dwelling because only ten spent shells were found in his apartment. (People v. Pearson (86) 42 C3d 351) [multiple convictions of greater and necessarily included lesser offenses are not permitted].) The appellate court ruled that under the requisite elements test, firing at an inhabited dwelling does not require any possibility of causing injury or death of a person as does negligent discharge of a firearm. (People v. Reed (2006) 38 C4th 1224.) Only the “elements” test may be used in determining whether one offense is necessarily included in another for purposes of applying the Pearson rule against multiple convictions.
People v. Retanan (9/5/2007, C049493) 154 CA4th 1219 modified at 2007 Cal. App. LEXIS 1471: The “One-Strike” law (PC 667.61(g)), which provides that a single enhanced sentence shall be imposed for offenses committed against a single victim on a single occasion, does not violate Blakely, nor do the consecutive sentences violate Cunningham or Black II.
People v. Willard (9/6/2007, C054553) 154 CA4th 1329: Under PC 1192.5, when a negotiated guilty or no contest plea is taken, the court must obtain a factual basis for the plea. A bare stipulation by counsel without reference to documents containing a factual support, or to documents that do not exist within the record, does not meet the standard required by section 1192.5. Appellant was charged by complaint with two counts of PC 288(a). The charging language contained the alleged date, the initial of the victim, and the language of the statute. Appellant pled no contest to one count and agreed to an upper term sentence in exchange for dismissal of the second count. At the plea hearing, the parties stipulated to a factual basis and the plea form provided that the court could take facts from any source necessary to establish the factual basis. However, the record contained no probation report, preliminary hearing, police report or other document providing a factual basis. Reviewing under an abuse of discretion standard, the appellate court found that there was an insufficient factual basis to support the plea and that on the basis of the record, the error was not harmless. It remanded to allow the prosecution to establish the factual basis. If it was unable to do so, appellant would be permitted to withdraw his plea. [Appellant obtained a certificate of probable cause.] (People v. Holmes (2004) 32 C4th 432; agreeing with the dissent in People v. McGuire (91) 1 CA4th 281.)
People v. Jefferson (9/7/2007, C053130) 154 CA4th 1381: There is no federal constitutional right to a jury trial on the issue of whether a prior conviction constitutes a serious felony under the California Three Strikes law (PC. 667 & 1170.12). (People v. Kelii (99) 21 C4th 452; People v. McGee (2006) 38 C4th 682.) Appellant was convicted of robbery by jury trial. At the subsequent court trial, the trial court found that a conviction in Illinois for attempted murder constituted a serious felony under the strikes law and doubled the penalty for the robbery. The appellate court found that because the determination of recidivist matters does not fall within the holding of Apprendi (Apprendi v. New Jersey (2000) 530 US 466), but continues to be governed by Almendarez-Torres (Amendarez-Torres v. United States (98) 523 US 224), the California Supreme Court’s analysis in McGee remains good authority, unaffected by Blakely (Blakely v. Washington (2004) 542 US 296) and Cunningham (Cunningham v. California (2007) 549 US ____ [166 LEd2d 856; 127 SCt 856].)
People v. Bradford (9/7/2007, D046614) 154 CA4th 1390: A trial court judge’s unrecorded ex parte communications with a deliberating jury violated the defendant’s right to counsel and right to trial by jury. While the jury was deliberating in appellant’s murder trial, the trial court judge, unaccompanied by counsel or a court reporter, entered the jury room on five separate occasions and responded to juror questions about the instructions, on occasion giving inaccurate responses as to the elements of the charged offense. The appellate court noted that not only were these interactions highly improper, they also violated PC 1138, case law, and, importantly, appellant’s 6th amendment constitutional rights to have counsel present at all critical stages, and also the right to trial by jury as the jury was deprived of privacy in its deliberations. The issue was not waived or forfeited. The appellate court declined to decide which standard to apply in judging the error; i.e., Chapman (Chapman v. California (1967) 386 US 18) or automatic reversal, because even under the Chapman standard, reversal was required due to the inadequate record. Despite the reversal, the court decided two other claims as they were likely to arise on retrial. First, the court ruled that the accusatory pleadings alleging murder, without reference to malice, along with evidence from the preliminary hearing, sufficiently informed appellant that the prosecution was seeking to establish that the killing was done with malice. Second, referencing established Supreme Court precedent (People v. Jurado (2006) 38 C4th 72), the court rejected appellant’s argument that the trial court erred in instructing the jury that it must acquit appellant of murder before it could return a manslaughter conviction.
People v. Perry (9/11/2007, B193654) 154 CA4th 1521: PC 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct and in determining whether there is a single objective in the commission of the crimes, the moment at which a defendant committed all of the elements of an offense is immaterial. The victim discovered appellant inside the victim’s car, removing the car stereo. When he shouted at appellant, appellant jumped out and ran with a screwdriver and the stereo in his hand. The victim chased him and when he caught up to appellant, appellant adopted a fighting stance for a few seconds before running away. Appellant was convicted of car burglary and robbery and over appellant’s objection the court sentenced him to a concurrent term for the burglary. The trial court rationalized its decision on the fact that the burglary was complete when the robbery (i.e., preventing the victim from regaining his property) occurred. The appellate court distinguished robbery from assault and found this to be error, as the relevant factor is whether there were independent objectives.
People v. Mejia (9/12/2007, B193804) 155 CA4th 86: A conviction for continuous sexual abuse of a child under 14 was reversed where there was insufficient evidence that the time period requirement was met. Appellant was found guilty of eight counts of continuous sexual abuse of a child under 14 in violation of PC 288.5 and six violations of PC 288.5(a), and forcible rape. On appeal, he challenged the sufficiency of evidence to support his conviction for continuous sexual abuse (count 1), two of the lewd act convictions (counts 2 and 4), and the rape conviction. As to the continuous sexual abuse conviction, he argued that there was insufficient evidence that three acts of molestation occurred over the three-month period required by PC 288.5(a). He argued as to the lewd act conviction, that there was insufficient evidence that the molestation occurred after the victim’s 14th birthday, as alleged. The appellate court agreed and reversed these two counts, but rejected appellant’s other challenges to the sufficiency of evidence. The only reasonable inference permitted by the evidence was that appellant’s abuse began sometime in June and continued to some date in September, but the jury could only speculate that the first incident occurred early enough in June to satisfy the 90-day requirement expiring on September 17, 2004. There was no evidence as to when the acts occurred in September, including whether it was before or after the victim’s birthday. Although there was sufficient evidence that there were three acts during the charging period, there was no substantial evidence that at least three months elapsed between the first and third offense committed against the victim as a 13-year-old.
People v. Warner (9/12/2007, F051027) 155 CA4th 57: CALCRIM 226 upheld. CALCRIM 226 addressing credibility of a witness, does not shift the burden of proof by directing that the jury should consider not believing anything a witness says if he has deliberately lied about something significant, or if the witness lies about something, the jury may accept part that is believed to be true and ignore the rest. Rules of Court may not conflict with statutes and the statute governs. Accordingly, in this case, it was error for the trial court to stay the penalty for PC 12022.5 because PC 12022.53 holds that “an enhancement involving a firearm specified in Section …12022.5…shall not be imposed ….” (Issue currently pending in People v. Gonzalez REV GTD (3/14/2007, S149898) 142 CA4th 436 [“When separate firearm enhancements under PC 12022.5 and subdivisions (b), (c), and/or (d) of section 12022.53 are found true and the longest enhancement is imposed, should the lesser enhancements be stricken, stayed or simply not imposed at all?”].)
People v. Quitiquit (9/12/2007, D050385) 155 CA4th 1: The Nicole Brown Simpson hearsay exception, codified in EC 1370, makes hearsay statements of infliction or threat of harm admissible. Sometimes. The Court of Appeal finds that the statement at issue here doesn’t qualify as admissible under EC 1370 because the statute requires that the statement be made “at or near” the time of the incident. The Court of Appeal finds that the statement here, made almost two months later, wasn’t “at or near,” emphasizing that the victim denied any injury during those two months. They also find that the statement fails to qualify as trustworthy, since there was no showing that the statement was accurate. A concurring opinion says that EC1370 should just be struck down as a violation of the confrontation clause, under Crawford (541 US 36).
People v. Foss (9/13/2007, C050992) 155 CA4th 113: The trial court properly prohibited the defense from questioning a witness about her feelings regarding child molestation. During appellant’s trial for multiple child molestation charges, the trial court prohibited the defense from questioning a witness who was involved in the reporting of the molestation about whether she had a morbid fear of sexual matters including child molestation. On appeal, appellant contended that this violated his right to cross examine witnesses and to present a defense. The appellate court rejected the argument, finding that the evidence was properly excluded and that there was no violation of appellant’s right to cross examine or present a defense. The court rejected People v. Scholl (64) 225 CA2d 558, because it did not reflect current law. As the testimony of victims of sex crimes is no longer deemed inherently suspect, the testimony of a non-complaining witness in a sex crime case who may have been a victim herself of unwanted sexual advances should also not be inherently distrusted.
People v. Chun (9/14/2007, C049069) 155 CA4th 170: Defendant’s admission that he used a firearm was induced by a false promise of leniency and thus inadmissible where, just before this admission, a detective repeatedly emphasized that the defendant’s young age, the seriousness of the situation, and that he should learn from his mistake. (See People v. Williams (97) 16 C4th 635, 659, 660.) The officer falsely told the defendant that the gun in question was not the murder weapon and asked “what can they possibly do to you, if your gun didn’t kill these people there?”; and told defendant he would write the judge and urge him to “help [defendant] out here,” going beyond a mere promise to advise authorities of his cooperation. (See People v. Jimenez (78) 21 C3d 595. 611-612; see also People v. Cahill (94) 22 CA4th 296, 314-315; In re Shawn D. (93) 20 CA4th 200, 216.) The second-degree felony murder instruction was error where the underlying felony was shooting at an occupied vehicle (PC 246), and there was no “collateral purpose” or admissible evidence that the crime was committed with a criminal intent independent of the intent to cause bodily harm. Therefore, the merger doctrine of Ireland came into play. (See People v. Bejarano (2007) 149 CA4th 975, 990.) The defendant was convicted of street terrorism (PC 186.22), based on the shooting, and was properly ordered to pay restitution to all victims of that offense, including those against whom he was alleged to have committed other crimes of which he was acquitted. The court distinguished, somehow finding a difference without a difference, People v. Percelle (2005) 126 CA4th 164, 180-181 [a defendant should not pay restitution for a crime for which he was acquitted].
People v. Foster (9/19/2007, B185709) 155 CA4th 331: PC 136.1 is violated even if the defendant did not threaten the witness directly.
People v. Mosley (9/19/2007, B195181) 155 CA4th 313: PC 422, criminal threats, requires that a threat of death or great bodily harm must convey to the threatened person an immediate prospect of execution of the threat. The defendant here was an inmate in jail; he threatened the sheriffs, saying he would kill them. His theory is that he couldn’t follow through on his threat. This Court of Appeals rejects this position, concluding that the defendant had shown his ability to obtain weapons in jail and had connections with gangs in the community.
People v. McNeal (9/21/2007, E041226) 2007 Cal. App. LEXIS 1590: In a prosecution for VC 23152(a) (“generic DUI”), evidence of a defendant’s personal partition ration, but not evidence of the general variability in partition ratios, is relevant and admissible in a prosecution for violation of section 23152(a). Under subdivision (a) of section 23152, it is unlawful to drive under the influence of alcohol. The amount of alcohol in a person’s blood, as shown by blood, breath, or urine tests, gives rise to various permissive presumptions as to whether the person was under the influence which can be rebutted. (VC. 23160.) Breath testing devices use a mathematical constant to approximate the percentage of alcohol in the blood, based on the amount measured in the breath, with a presumptive blood-breath partition ratio of 1:2100 (i.e., the same amount of alcohol found in 2,100 milliliters of a person’s breath would be found in a milliliter of the person’s blood). Partition ratios vary in the same individual on the basis of such factors as body temperature, time the alcohol is consumed in relation to when it’s measured, etc. Because generic DUI is concerned with the ultimate fact of intoxication, a defendant’s personal partition ratio is relevant. People v. Bransford (94) 8 C4th 885 is inapplicable as it deals with subdivision (b), or per se DUI (driving with .08% or greater alcohol). In this case, although it was error to exclude partition ratio evidence, the error was harmless because there was other strong evidence that appellant was driving under the influence meeting the Watson standard. (People v. Watson (56) 46 C2d 818.)
Isaac v. DMV (9/26/2007, A116502) 2007 Cal. App. LEXIS 1607: In case involving the interstate Driver License Compact, trial court finding that evidence relied upon by defendant to prove an out-of-state conviction of driving under the influence of an of alcoholic beverage was insufficient to prove that the violation from which the conviction arose would have constituted a violation of VC 23152 is reversed where defendant provided sufficient evidence that plaintiff’s Ohio conviction was based on conduct that, if committed in this state, would violate section 23152.
People v. Brock (9/26/2007, B179876) 2007 Cal. App. LEXIS 1610: PC 4530, governing escapes, has a general subdivision, (b), and a subdivision (c) governing failures to timely return to confinement after an authorized absence. PC 4530(c) is a specific statute which bars prosecution under the more general PC 4530(b).
People v. Mares (9/27/2007, E039762) 2007 Cal. App. LEXIS 1619: Trial court erred when it instructed jurors that the mistake of fact had to be actual and reasonable, when in fact an unreasonable belief was sufficient to negate specific intent. The error was harmless as defendant’s planning and sophistication belied his mistake-of-fact defense.
People v. Newton (9/27/2007, G037968) 2007 Cal. App. LEXIS 1618: In case involving a hit and run accident where four people were injured, prosecution’s petition for writ of mandate challenging order consolidating four counts of a complaint into a single count is denied where the trial court did not err in finding there was only a single violation.
People v. Price (9/27/2007, B192975) 2007 Cal. App. LEXIS 1617: Grand theft (PC 487(a)) and forgery (PC 476) are subject to the four-year limitations period in PC 801.5 and PC 803(c) and, regardless of which limitations period applies to burglary, the prosecution of defendant for that crime was timely under the facts of this case.
People v. Garcia (9/27/2007, B187968) 2007 Cal. App. LEXIS 1613: The trial court was not required to instruct on willfully firing a gun in a grossly negligent manner (PC 246.3) as a lesser included offense of firing a gun at an inhabited dwelling (PC 246).
People v. Ross (9/28/2007, H030005) 2007 Cal. App. LEXIS 1620: The defendant and the victim were engaged in a hostile verbal exchange. The victim slapped the defendant. The defendant punched the victim with a blow that fractured the victim’s cheekbone. The defendant was charged with aggravated assault. The judge instructed the jury that one charged with assault cannot successfully plead self-defense if he was engaged in mutual combat. Giving this instruction under these facts was wrong. The mutual combat bar to self-defense applies only to a violent confrontation conducted pursuant to prearrangement, mutual consent, or an express or implied agreement to fight. Since there was no evidence of such agreement here, the mutual combat bar is inapplicable. Reversed.