CALIFORNIA CASE LAW UPDATE – Selected California Cases
California Supreme Court (September 1-30, 2010)
Attempted Murder: Multiple Victims. People v. Perez (7/29/2010, S167051 ) 50 C4th 222: Firing single bullet from a car at a group of seven peace officers and a civilian was sufficient to sustain only a single count of premeditated attempted murder, not eight. The prosecution failed to prove that the defendant acted with the specific intent to kill each victim. (People v. Smith (2005) 37 Cth 733, 739; People v. Bland (2002) 28 C4th 313, 331.) Under different circumstances the defendant could be convicted of multiple attempted murders. (See People v. Chinchilla (1997) 52 CA4th 683, 690.)
Grants Of Review:
People v. Vang REV GTD (9/15/2010, S184212) 185 CA4th 309: Limited review of the following issues: (1) Did the Court of Appeal correctly find that the trial court erred in permitting the use of hypothetical questions of the prosecution expert witness? (2) If so, did the Court of Appeal correctly find the error to be harmless?
People v. Hubbard REV GTD (9/15/2010, S183807) 2010 Cal. App. Unpub. LEXIS 3856: Briefing deferred pending decision in Lopez v. Superior Court REV GTD (7/29/2009, S172589) 173 CA4th 266, which presents the following issue: Can a person committed as a mentally disordered offender challenge that determination at the time of a petition to extend the commitment or can the question be litigated only at the time of the original certification?
People v. Seastrong REV GTD (9/15/2010, S185079) Unpublished; Briefing deferred pending decision in People v. Engram REV GTD (12/02/2009, S176983) 2009 Cal. App. Unpub. LEXIS 7063, which includes the following issues: (1) Did the trial court err in dismissing this case for violation of defendant’s statutory right to a speedy trial on the ground no criminal courtroom was available? (2) Should criminal cases facing dismissal on speedy trial grounds be given precedence over civil cases pursuant to PC 1050(a), either as a matter of law or under the circumstances of this case?
People v. Sitthideth REV GTD (9/15/2010, S186346.) 185 CA4th 309: Briefing deferred pending decision in People v. Vang REV GTD (9/15/2010, S184212) 185 CA4th 309 which presents the following issues: (1) Did the Court of Appeal correctly find that the trial court erred in permitting the use of hypothetical questions of the prosecution expert witness? (2) If so, did the Court of Appeal correctly find the error to be harmless?
People v. Mil REV GTD (9/29/2010, S184665) 2010 Cal. App. Unpub. LEXIS 4523: Is harmless error analysis appropriate when the trial court omits multiple elements from a jury instruction on special circumstance murder, and if so, was the error harmless in this case?
California Courts of Appeal (September 1-30, 2010)
Rape: Consent. People v. Ireland (9/8/2010, F057896) 188 CA4th 328: (1) In a prosecution for rape, evidence of the defendant’s use of a weapon not agreed to by the victim, along with an express or implied threat of harm if the victim does not cooperate, may automatically negate previously given consent to intercourse. (2) Appellant also claimed that CALCRIM 1000 (withdrawal of consent), as given, was error because it incorrectly implied that the rules concerning withdrawal of consent applied only during the act of sexual intercourse and not before. The court agreed that the instruction may have been confusing. But because there was no evidence that the victims ever agreed to intercourse with the knife, it was clear that they had withdrawn any initially given consent. And if there was any possible error, it was harmless because the court also instructed the jury that the prosecution must prove that the victim did not consent and the appellant did not reasonably and actually believe there was consent.
Theft, Embezzlement, and Claim of Right. People v. Fenderson (9/17/2010, A123984) 188 CA4th 625: The standard instruction that a “claim-of-right defense (CALCRIM 362), does not apply if the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered” applies to theft by larceny as well as by embezzlement. (See People v. Tufunga (1999) 21 C4th 935, 938, 952-953, fn. 4.)
Solo Criminals Can’t Violate The Substantive Gang Crime Statute. People v. Rodriguez (9/20/1010, C060227) 188 CA4th 722: Conviction for active participation in a street criminal gang (PC 186.22(a)) was reversed since the defendant was the sole perpetrator of an attempted robbery that did not involve felonious conduct by other persons, let alone members of the gang of which he was a member.
Statute of Limitations For Attempted Premeditated Murder. Anthony v. Superior Court (9/20/2010, B223625) 188 CA4th 700: The statute of limitations for attempted premeditated murder is governed by PC 799, allowing for commencement of prosecution at any time.
Self Representation: SVPA. People v. Sokolsky (9/21/2010, B212437) 2010 Cal. App. LEXIS 1645: There is no constitutional right to self-representation on appeal from an SVPA commitment.
Prosecution Misconduct: Argument. People v. Vance (9/29/2010, A122777) 2010 Cal. App. LEXIS 1691: Prosecutor improperly argued the “golden rule,” asking the jury put itself in the victim’s position and imagine what the victim experienced. Also improper to argue the impact of the crime on the victim’s family.
Sex Registration: Apprendi Requires Jury Finding. People v. Mosley (9/29/2010, G038379) 2010 Cal. App. LEXIS 1689: The jury actually acquitted the defendant of the sex counts and only convicted the defendant on a misdemeanor assault. The judge, however, made the finding permitted by PC 290 that the offense was really sexual, and on that basis ordered the defendant to register as a sex offender under PC 290. The Court of Appeal held that this finding can’t be made by a judge; only a jury can make it. So the registration order was unlawful.
9th Circuit Court Of Appeals
(September 1-30, 2010)
Miranda. Thompson v. Runnel (9/8/2010, 9th Cir. No. 08-16186) 2010 U.S. App. LEXIS 18750: A deliberate two-step interrogation strategy by police in which Miranda is administered post-confession may result in a Miranda violation for both pre and post statements by defendant.