JURY INSTRUCTIONS - CALCRIM 220
People v. Ramos (C.A. 1st, 6/9/08, A117168) 08 C.D.O.S. 7020
CALCRIM 220's omission of "every element" from reasonable doubt
instruction did not render it incorrect. "The instruction explicitly
informed the jurors that 'Whenever I tell you the People must prove
something, I mean they must prove it beyond a reasonable doubt.' In
this case, the trial judge went on to enumerate each of the elements
of the charged crime and the special allegation, and stated that the
People were obligated to prove each of those elements in order for the
defendant to be found guilty."
GUILTY PLEAS - FACTUAL BASIS MAY BE ESTABLISHED AT SENTENCING HEARING
People v. Coulter (6/10/08, B23329) 08 C.D.O.S. 7048
In accepting a guilty plea, a trial court, with the express or
implied consent of the defendant, may put the issue of a factual basis
for the plea, over to the sentencing hearing.
SEX REGISTRATION - ORAL COPULATION WITH 15-YEAR OLD GIRL
People v. Manchel (C.A. 2nd, 6/10/08, B202222) 08 C.D.O.S. 7050
Court declines to extend hold of People v. Hofsheier (2006) 37 Cal.
4th 1185, which holds that mandatory registration for persons
convicted of violating Penal Code section 288a(b)(1) (oral cop with
girl aged 16 or 17) violated equal protection, to persons convicted of
Penal Code section 288a(b)(2) (oral cop with girl under 16). "Because
Manchel’s victim was 15 years old and he was at least 10 years older
than she was, whether Manchel was subject to mandatory registration
did not hinge on the distinction of whether the sexual conduct he
engaged in with her was oral copulation or sexual intercourse. Either
act constituted a lewd and lascivious act under section 288,
subdivision (c)(1) and subjected Manchel to mandatory lifetime
registration as a sex offender. (§§ 288, subd. (c)(1); 290, subd.
(c).) In other words, in contrast to Hofsheier, supra, 37 Cal.4th
1285, here the nature of the sexual act was not determinative of
whether Manchel was subject to mandatory registration: whether sexual
intercourse or oral copulation took place, his conduct subjected him
to mandatory registration under the Penal Code."
WITNESSES - REFUSAL TO ISSUE VISAS TO DEFENSE WITNESSES
People v. Carrillo (C.A. 2nd, 6/9/08, B199656) 08 C.D.O.S. 7032
Defendant's constitutional rights were not violated because the
prosecution would not ask federal immigration officials to issue
special visas for two exculpatory witnesses who lived in Mexico. But
issue waived (forfeited) for failure to present evidence supporting
the motion in the trial court.
ENHANCEMENTS - 12022.53 JURY INSTRUCTION ERROR
People v. Carrillo (C.A. 2nd, 6/9/08, B199656) 08 C.D.O.S. 7032
Failure to instruct on proximate cause was harmless error. By
modifying the instruction to state that the allegation was true if the
conduct of Carrillo or a co-perpetrator harmed Ramirez, and then by
failing to instruct the jury that concurrent causes could operate
together to determine proximate cause, there was a likelihood that the
jury could have found the allegation true without finding that
Carrillo’s conduct was one of those causes. (People v. Palmer (2005)
133 Cal.App.4th 1141, 1156 [test for instructional error is whether
jury would likely misunderstand or be misled by instruction].)
However, as set forth below, under the applicable standard of review
for constitutional error, the error was harmless beyond a reasonable
doubt.
JUVENILES - CREDIT FOR ELECTRONIC MONITORING AT HOME
In re Lorenzo L. (C.A. 3rd, 6/9/08, C055693) 08 C.D.O.S. 7037
No right to predispositional credit for time spent on electronic
monitoring at home. Welfare & Institutions Code section 726,
subdivision (c) refers to juvenile hall, ranch, camp, forestry camp or
secure juvenile home pursuant to Section 730, or in any institution
operated by the Youth Authority, and electronic monitoring at home is
"physical confinement."
DISCOVERY - PITCHESS - SUFFICIENCY OF DECLARATION
Uybungco v. Superior Court (C.A. 4th, 5/21/08, D051900) 08 C.D.O.S.
7044
Motion satisfied the low threshold required to obtain limited
discovery from police personnel files under Pitchess v. Superior Court
(1974) 11 Cal.3d 531. See Warrick v. Superior Court (2005) 35 Cal.4th
1011, 1019. City Attorney argued (and judge agreed) that the
differences between the police report and the defendant's statement
were "differences in perception." Appellate court answered: "a fair
comparison of Uybungco’s declaration with the police reports reveals a
clear allegation of police misconduct and false accusation which, if
believed, would strongly support a defense to the charged offenses —
in short, the very essence of the '"low threshold"' showing required
to trigger in camera Pitchess review."
PRISONERS' RIGHTS - DUE PROCESS LIBERTY INTEREST
Carver v. Lehman (9th Cir. 6/9/08, 06-35176) 08 C.D.O.S. 6947
Washington state law created liberty interest in an inmate’s early
release into community custody that is protected under the Due Process
Clause of the Fourteenth Amendment. Liberty interest may arise either
from due process clause itself or state law. (Toussaint v. McCarthy
(9th Cir. 1986) 801 F.2d 1080, 1089.)
SENTENCING - CUNNINGHAM - PROBATION STATUS HAD TO BE PLEADED AND PROVED
Butler v. Curry (9th Cir. 6/9/08, 07-56204) 08 C.D.O.S. 6958
Constitutional rights as interpreted by Blakley v. Washington (2004)
542 U.S. 296 and Cunningham v. California (2007) 127 S. Ct. 856 were
violated when the statutory maximum for petitioner's crime was
increased on the basis of fact of probationary status found by a judge
by a preponderance of the evidence, rather than admitted or found by a
jury beyond a reasonable doubt. Because Cunningham was clearly
dictated by Blakely, habeas petitioner whose sentencing took place
after Blakely but before Cunningham was entitled to relief. "We
conclude, however, that whether the defendant was on probation at the
time of commitment of a crime does not come within the narrow
Almendarez-Torres exception to the fact-finding requirements
established in the Apprendi line of cases and so cannot suffice to
make Butler’s sentence constitutional."
SENTENCING - CONCURRENT FOR TWO VIOLATIONS AGAINST TWO VICTIMS
People v. Carrasco (C.A. 2nd, 6/6/08, B193002) 08 C.D.O.S. 6989
Trial court had discretion to sentence concurrently on two counts of
Penal Code section 69 against two officers, and was not precluded by
any part of three strikes from determining whether the two convictions
were part of the "same occasion." Remanded.
COUNSEL - FAILURE TO PURSUE SUPPRESSION MOTION
In re Angel R. (C.A. 4th, 6/5/08, G039120) 08 C.D.O.S. 6900
Counsel not ineffective in failing to pursue suppression motion when
discovery of evidence was inevitable, because it would have been found
during booking search incident to valid arrest. "No attorney is
required to make clearly unmeritorious motions 'simply to create a
record impregnable to assault for claimed inadequacy of
counsel.' (People v. Weston (1981) 114 Cal.App.3d 764, 780.) As there
is a reasonable tactical explanation for trial counsel’s action, we
must reject Angel’s ineffective assistance of counsel claim."
GRAFFITI TOOLS - STICKERS
In re Angel R. (C.A. 4th, 6/5/08, G039120) 08 C.D.O.S. 6900
Adhesive-backed letters constituting monogram of tagging crew, which
could be used quickly to mark the surfaces without the time
expenditure that either painting or writing would require fit
definition of graffitti tools.
THEFT - FAILURE TO INSTRUCT ON RECENT POSSESSION OF STOLEN GOODS
People v. Najera (Ca. Sup. Ct., 6/5/08, S141654) 08 C.D.O.S. 6835
Trial court had no sua sponte duty to instruct that possession of
recently stolen goods is insufficient to prove guilt of auto theft.
"Where, as here, an instruction simply informs the jury that a fact or
cluster of facts is not, without more, substantial evidence of guilt
under the ordinary legal rules set forth elsewhere in the
instructions, we have not imposed a duty on trial courts to provide
such an instruction sua sponte."
SEARCH & SEIZURE - SHIP'S CABIN
People v. Laborde (C.A. 2nd, 6/4/08, B199726) 08 C.D.O.S. 6851
Search of stateroom on cruise ship by customs officer, after ship
docked in Long Beach at the conclusion of a foreign cruise, was
routine border search for which reasonable suspicion is not required.
