CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (September 1-30, 2008)
There were no California Supreme Court cases decided in September.
Grants Of Review:
In re Davis (9/10/2008, S116750): Original proceeding. In this case, which is related to the automatic appeal in People v. Davis (2005) 36 C4th 510, the court issued an order to show cause limited to claims why petitioner is not entitled to relief on the following grounds: (1) false evidence that was substantially material or probative with respect to the special circumstances findings and the penalty determination was introduced at petitioner’s trial; (2) defense counsel rendered ineffective assistance by failing to object to the prosecutor’s biblical references; (3) petitioner is mentally retarded within the meaning of Atkins v. Virginia (2002) 536 US 304 (see In re Hawthorne (2005) 35 C4th 40); (4) defense counsel rendered ineffective assistance by failing to object to the prosecutor’s comments accusing the defense of fabrication; and (5) cumulative prejudice arises from the facts alleged in the above and related claims.
Barnett v. Superior Court REV GTD (9/17/2008, S165522) 164 CA4th 18: This case, which is related to the automatic appeal in People v. Barnett (98) 17 C4th 1044 (see also In re Barnett (2003) 31 C4th 466), presents the following issues: (1) Is an out-of-state law enforcement agency part of the prosecution team for purposes of the disclosure obligations under Brady v. Maryland (1963) 373 US 83, if the agency’s involvement is limited to providing the prosecution with previously existing records regarding a defendant’s prior crimes? (2) Is a prisoner seeking post-conviction discovery under PC 1054.9 required to produce evidence indicating the actual existence of the discovery material he or she is requesting? (3) Is a prisoner seeking post-conviction discovery under PC 1054.9 required to plead a theory indicating the materiality of the materials requested if the basis for discovery is the prosecutor’s Brady obligation to disclose exculpatory materials? (4) Is PC 1054.9 unconstitutional as an unauthorized legislative amendment to the criminal discovery scheme established by Proposition 115?
People v. Superior Court (Sparks) REV GTD (9/17/2008, S164614) 2008 Cal. App. Unpub. LEXIS 4603: (1) Did principles of collateral estoppel, as applied in People v. Taylor (74) 12 C3d 686, preclude the prosecution from trying defendant for murder on a felony-murder theory after the actual killer had been acquitted of murder on such a theory? (2) Is Taylor still good law, or should that decision be overruled or disapproved?
DISPOSITIONS
The following case was transferred to the Court of Appeal to resolve any remaining issues in light of the United States Supreme Court’s decision in Giles v. California (2008) __ US __ [171 LEd2d 488; 128 SCt 2678]:
People v. Giles, S129852.
Review in the following cases was dismissed in light of People v. Towne (2008) 44 C4th 63:
People v. Hernandez, S148974.
People v. Abercrombie, S162743.
People v. Pardo, S148914.
People v. Punch, S161825.
People v. Crawford, S148445.
People v. Maxey, S161553.
People v. Hernandez, S148992.
People v. Holdaway, S149022.
People v. Resto, S149244.
People v. Torres, S148670.
People v. Camacho, S149429.
People v. Tinajero, S149418.
People v. Green, S149670.
People v. Bacon, S149595.
People v. Fonseca, S150771.
People v. Wilson, S150303.
People v. Marroquin, S152563.
People v. Heims, S152922.
People v. Reibstein, S152930.
People v. Lopez, S153829.
People v. Perez, S153741.
People v. George, S154071.
People v. Mariani, S154471.
People v. Santacruz, S153433.
People v. Baldwin, S154264.
People v. Garcia, S154416.
People v. Macklin, S154280.
People v. Perez, S154845.
People v. Torres, S154461.
People v. Azam, S156008.
People v. Macias, S156127.
People v. Zuniga, S156327.
People v. Goodsby, S156854.
People v. Guerrero, S156049.
People v. Ramos, S157451.
People v. MacManus, S157369.
People v. Yates, S157935.
People v. Brock, S157738.
People v. Allison, S158278.
People v. Viera, S158301.
People v. Moore, S158888.
People v. Thomas, S158980.
People v. Venzor, S158821.
People v. Zepeda, S158717.
People v. Vang, S159190.
People v. Banegas, S158978.
People v. Beckham, S159850.
People v. Bocanegra, S158828.
People v. Gonzales, S159835.
People v. Martinez, S159730.
People v. Trejo, S159660.
People v. Trujillo, S160196.
People v. Curtis, S160502.
People Guess, S160395.
People v. Herrera, S160399.
People v. Silla, S160544.
People v. Tucek, S159871.
People v. Hughes, S160823.
People v. Larkin, S159848.
People v. Espino, S160067.
People v. Smith, S160467.
People v. Bowden, S161149.
People v. Martinez, S160842.
People v. Anderson, S161576.
The following cases were transferred for reconsideration in light of People v. Towne (2008) 44 Cal.4th 63:
People v. Shchirskiy, S150129.
People v. Aguilar, S151339.
People v. Costa, S151236.
People v. Martinez, S151498.
People v. Ortiz, S152996.
People v. Rizo, S153176.
People v. Evans, S153757.
People v. Pacheco, S153739.
People v. Conerly, S159336.
The following cases were transferred for reconsideration in light of People v. Towne (2008) 44 C4th 63 and People v. Sandoval (2007) 41 C4th 825:
People v. Mvuemba, S149247.
People v. Sargeant, S152292.
People v. Caesar, S154793.
The following case was transferred for reconsideration in light of People v. Towne (2008) 44 Cal.4th 63 and People v. French (2008) 43 Cal.4th 36:
People v. Chaffee, S158873.
STATUS
People v. Steele REV GTD (7/11/2007, S153296) (C052743). In this case in which briefing was previously deferred pending further order of the court and decision in People v. Towne (2008) 44 Cal.4th 63, the court ordered action deferred pending decision in People v. Nguyen REV GTD (10/10/2007, S154847) 152 CA4th 1205, which presents the following issue: Can a prior juvenile adjudication of a criminal offense in California constitutionally subject a defendant to the provisions of the three strikes law (PC 667(b)-(i), 1170.12) although there is no right to a jury trial in juvenile wardship proceedings in this state?
California Courts of Appeal (September 1-30, 2008)
Selected Decisions:
People v. Hernandez (9/2/2008, B203151) 166 CA4th 641: In People v. Hofsheier ((2006) 37 C4th 1185), the C.S.C. held that mandatory sex offender registration under PC 290 for consensual oral copulation with a minor 16 or 17 violated equal protection, because consensual sexual intercourse with such a minor didn’t trigger mandatory registration. Under Hofsheier mandatory registration for PC 288a(b)(2), consensual oral copulation with a 14-year old, also violates equal protection.
People v. Warner (9/3/2008, F051027) 166 CA4th 653: CALCRIM 226 does not impermissibly lower the prosecution’s burden of proof. In his appeal from his murder conviction, Warner contended that the last paragraph of CALCRIM 226 (witness wilfully false) impermissibly lightens the prosecution’s burden of proof. He argued that the use of the word “should” rather than may, and “ignore” invited the jury to reject all of his testimony even more so than former CALJIC 2.21.2. The appellate court rejected the challenge, finding that the differences between the two instructions are not even material, let alone prejudicial.
People v. Castagne (8/27/2008, A120694) 166 CA4th 727 [status changed by the Court from Unpublished to Published (9/4/2008)]: Exclusion from Proposition 36 drug probation under PC 1210.1(b)(5), must be based on defendant’s participation in two separate courses of drug treatment, and concurrent treatment for two separate offenses does not constitute two separate courses of treatment.
In re David V. (9/8/2008, B203840) 166 CA4th 801: Although PC 12020 does not define a strict liability crime, the prosecution need only prove that the item has the characteristic such that it falls within the statutory description and that appellant knew of the characteristic. If the item is one of ordinary, innocent usage, the prosecution need not prove appellant’s intent to use it against a specific victim, but only prove appellant’s general intent to possess it. Lastly, the burden is on appellant to establish innocent usage.
People v. Sinclair (9/9/2008, B198062) 166 CA4th 848: The exception to the mandatory imposition of the enhancement under PC 12022.53 which dictates that an enhancement providing for a greater punishment be imposed instead of the PC 12022.53 enhancement, does not encompass a combination of enhancements whose total is greater than the use enhancement.
People v. Dominguez (9/10/2008, H031795) 166 CA4th 858 [modified 10/2/2008]: It is a due process violation to prosecute a defendant for an offense not shown by the evidence at the preliminary hearing or arising out of the transaction upon which the commitment was based.
People v. Pool (9/10/2008, C057216) 166 CA4th 904: Defendant’s knowledge of the existence of a fetus is not a prerequisite for a finding of fetal murder. Appellant strangled his girlfriend. During the autopsy, the pathologist discovered that the obese victim was approximately 12 weeks pregnant and that the fetus died as a result of the death of the mother. Due to the victim’s obesity and the early stages of the pregnancy, the pregnancy was not obvious externally. Appellant claimed he was unaware of the pregnancy, and only learned of it when he received the charging documents alleging two murders. The jury was instructed on malice aforethought, pursuant to CALCRIM 520, but the court did not include the optional “natural and probable consequences” paragraph from the standard instruction. Appellant was found guilty of first degree murder and second degree murder of the fetus. The court rejected appellant’s claim that knowledge was required for the second degree murder conviction. Relying on People v. Taylor (2004) 32 C4th 863, the court ruled that “[w]hen a defendant commits an act, the natural consequences of which are dangerous to human life, with a conscious disregard for life in general, he acts with implied malice toward those he ends up killing,” … and he does not need to be specifically aware of how many potential victims his conscious disregard for life endangered. The appellate court gave no significance to the method of killing in Taylor (by shooting), as compared to that in the instant case, strangulation.
People v. Plumlee (9/10/2008, F054363) 166 CA4th 935: A switchblade knife defined in PC 653k can also qualify as a concealed dirk or dagger for purposes of PC 12020, even if it is in a closed position as long as it is capable of ready use as a stabbing weapon that could cause great bodily injury or death.
C.C. v. Superior Court (9/11/2008, G040580) 166 CA4th 1019: CCP 170.6(a)(2), which allows a challenge to a judge following reversal on appeal, applies only where the remand requires reexamination of a factual or legal issue, and not where the remand is for the performance of a ministerial act.
People v. Wilson (9/12/2008, H030940) 166 CA4th 1034: The trial court did not err by modifying CALCRIM 1191 to instruct the jury that it could use evidence of one charged crime to infer the defendant was predisposed to have the requisite specific intent for other charged crimes. At appellant’s trial for several sex offenses, he objected to the modification of the propensity instruction relating to uncharged crimes (CALCRIM 1191). As modified, the instruction told the jury it could infer propensity to commit one charged sex offense from evidence of other offenses charged in the same case, as opposed to uncharged offenses which is what the instruction usually allows consideration of. Relying on People v. Quintanilla (2005) 132 CA4th 572, where the court disapproved of an instruction which allowed the jury to draw a propensity inference from other charged domestic violence offenses, appellant argued on appeal that the modification was erroneous. The Court of Appeal reviewed the legislative intent behind EC 1108, analyzed the case law dealing with jury instructions on propensity evidence, and found the modified instruction was appropriate. The language of EC 1108 does not distinguish between charged and uncharged offenses. And, permitting the jury to use propensity evidence in this way is consistent with the Legislature’s intent. Also, the policy concerns behind the general rule of excluding propensity evidence, such as protracted mini-trials and the burden of defending against charged and uncharged offenses, are not implicated when multiple sex offenses are charged in the same case. The court implicitly disagreed with Quintanilla’s holding, but did not directly so hold because the instruction in that case was distinguishable since it was much broader than the one at issue here.
Subsequent History Note: The United States Supreme Court granted certiorari for People v. Quintanilla, sub nom. Quintanilla v. California (2007) ___ US ___ [167 LEd2d 40; 127 SCt 1215]. Judgment was vacated and the case remanded to the Court of Appeal for further consideration in light of Cunningham v. California (2007) 549 US 270 [166 LEd2d 856; 127 SCt 856]. On remand, the Court of Appeal filed an unpublished opinion on July 31, 2007.
People v. Ybarra et al. (9/12/2008, F047855)166 CA4th 1069: PC 868.5, entitling a prosecution witness to a support person during his or her testimony at trial, does not violate due process.
People v. Ybarra et al. (9/12/2008, F047855)166 CA4th 1069: A defendant who commits first degree murder, with a criminal street gang enhancement, does not necessarily commit the crime of active participation in a criminal street gang, so the latter is not a lesser offense of the former. (See People v. Toro (1989) 47 C.3d 966, 972 [enhancement allegations are not considered in determining lesser included offenses].)
In re Asencio (9/15/2008, B207133) 166 CA4th 1195: The amount of force required to establish a violation of PC 269(a)(5), aggravated sexual assault of a child through forcible sexual penetration, is force which is sufficient to overcome the victim’s will.
People v. Milligan (9/15/2008, G039546) 166 CA4th 1208 [rehearing granted 10/9/2008]: Collectively, the additions and amendments to the sex offender registration laws are not an ex post facto violation if applied retroactively because they have non-punitive purposes and are not so burdensome that they constitute punishment. (Smith v. Doe (2003) 538 US 84.) However, the residency restrictions and GPS monitoring requirements of Jessica’s Law do not apply retroactively.
People v. Salcido (9/16/2008, D050330) 166 CA4th 1303: The prosecution may not avoid the two-dismissal rule provided for in PC 1387 by charging a new offense or allegation in a third filing that would increase the offense originally charged to a violent felony when the charged offense in the prior two dismissals was not a violent felony.
People v. Love (9/16/2008, C055398) 166 CA4th 1292: 1) A violation of fraudulent use of a credit card under PC 484g(a) does not require a completed acquisition. 2) The prohibition of dual convictions for theft and receipt of the same property barred appellant from being convicted of fraudulent use of a credit card and receiving stolen property. Appellant was convicted of both using the victim’s stolen credit card information for obtaining a laptop (PC 484g(a)), and receiving the same laptop as stolen property (PC 496(a)). The court held that one of the two convictions had to be stricken, based on the rule that one cannot be charged with theft and receipt of the same property. 3) Appellant’s grand theft conviction had to be reduced to misdemeanors because the jury never determined the amount taken.
People v. Baughman (9/16/2008, C050147) 166 CA4th 1316: The Cunningham error in this case was harmless because the jury would have found an aggravating circumstance true beyond a reasonable doubt.
Quinones v. San Diego Co. Superior Court (9/22/2008, D052665) 166 CA4th 1519: Charges in the information filed following the preliminary hearing are limited to those offenses identified in the commitment order, any new offense arising out of the same transaction as the offense for which defendant has been committed, or any other offense shown by the evidence presented at the preliminary hearing, and cannot unfairly surprise the defendant.
People v. Barkley (9/23/2008, H031717) 166 CA4th 1590: The determination as to whether a prior conviction constitutes a “strike” offense is made on the date of the conviction and is not determined by the imposed sentence unless the initial sentence automatically converts the felony to a misdemeanor.
People v. Martinez (9/23/2008, C055549) 166 CA4th 1598 [modified 10/22/2008]: A defendant has no jury trial right to determination of factors justifying consecutive life sentences under PC 667.61.
People v. Zepeda (9/25/2008, C054972) 167 CA4th 25: CALCRIM 220 properly conveys the reasonable doubt standard. In this murder appeal, appellant alleged CALCRIM 220 misstates the proof beyond a reasonable doubt standard by not referring to the conviction of proof beyond a reasonable doubt being deeply “felt.” The court found “appellant’s argument borders on the frivolous.” The instruction conveys the concept of reasonable doubt without ambiguity and without obscuring its scope. The court urged “defense counsel to direct their resources to arguably meritorious grounds of appeal.”
People v. Jasmin (9/26/2008, A118151) 167 CA4th 98: In his final argument, the DA said that making a decision based on a reasonable doubt standard is not like making an everyday decision, it’s like making a critical, life-changing decision. The reviewing court held such argument to be proper. However, this is very close to the cases saying proof beyond a reasonable doubt is not comparable to everyday decision making. (See, e.g., People v. Nguyen (1995) 40 CA4th 28; People v. Johnson (2004) 119 CA4th 976; People v. Johnson (2004) 115 CA4th 1169.)
People v. Baez (9/30/2008, A119660) 167 CA4th 197: The Legislature intended to subject defendants who commit manslaughter DUI to enhanced penalties for other DUI convictions regardless of the timing of the underlying conduct.
9th Circuit Court of Appeals
(September 1-30, 2008)
U.S. v. Drake (9/15/2008, No. 06-10073) 2008 U.S. App. LEXIS 19555: A two-year delay between indictment in the local Guam court and indictment in federal district court did not violate appellant’s constitutional right to a speedy trial.