Battery on custodial officer -
People v. Gutierrez (5th Dist., 5/28/09, F055925) ___ Cal.App.4th ___
"Read literally, CALCRIM No. 2671 authorizes a custodial officer to use reasonable force in four situations -- 'to restrain a person, to overcome resistance, to prevent escape, or in self-defense' -- but erroneously limits to the first situation alone not only the prohibition against the defendant's use of force or any weapon to resist reasonable force but also the authorization of the defendant's use of reasonable force to defend against unreasonable or excessive force." Instruction is flawed, but does not require reversal under facts of this case because verdict was actually based on valid ground.
Confessions - no Miranda error
People v. Davis (Ca. Sup. Ct., 6/1/09, S056425) ___ Cal.4th ___
Officer's failure to fill in the blank on one of the questions in the Miranda form did not invalidate Miranda waiver where defendant, who was "no stranger to the criminal justice system," orally waived rights and signed form.
Confessions - rescue doctrine exception to questioning
People v. Davis (Ca. Sup. Ct., 6/1/09, S056425) ___ Cal.4th ___
Although ordinarily questioning must stop after a defendant unequivocally invokes right to counsel (McNell v. Wisconsin (1991) 501 U.S. 171), there is an exception for statements obtained in an attempt to rescue a still-living victim. For the "rescue doctrine" to be invoked, there must be a possibility of saving the victim's life. Here, even though victim had been missing 64 days, it was not unreasonable to believe she might have been kidnapped and was still alive, especially since at the time of the kidnapping, defendant told victim's friends he was doing it "for the money," i.e., for a ransom. There was no forensic evidence to suggest she was dead. Even if error, it was harmless beyond reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
Expungement - consideration of post-probation conduct
People v. McLernon (2nd Dist., 5/29/09, B209952) ___ Cal.App.4th ___
Consideration of post-probation conduct when deciding whether to expunge conviction is not precluded by Penal Code section 1203.4, but Los Angeles Superior Court Judge Thomas R. White failed to consider the motion on the merits, and therefore remanded was required. Judge White "rejected" the motion because it had been made before.
Forfeiture - failure to bring motion in connection with trial
People v. $10,153.38 in U.S. Currency (2nd Dist., 5/29/09, B205874) ___ Cal.App.4th ___
DA's failure to bring forfeiture matter to trial in connection with criminal proceedings under Health & Safety Code section 11470 precludes entry of judgment in government's favor.
Juror misconduct - reading note from nonjuror to jury
People v. Davis (Ca. Sup. Ct., 6/1/09, S056425) ___ Cal.4th ___
Although juror should not have read note to jury which had been sent by a nonjuror friend, it was not prejudicial "by any stretch of the imagination." The note did not refer to any extraneous evidence and was not inflammatory. It was simply a "pat on the back" for the jury's service.
Jury selection - Batson error not present
People v. Davis (Ca. Sup. Ct., 6/1/09, S056425) ___ Cal.4th ___
Based on independent review, Court concludes that trial court did not err in ruling that defendant failed to make a prima facie case that prosecutor challenged five prospective jurors because they were Hispanic. Fact that three of the jurors were characterized as "Caucasian" "weakens any inference of group bias ...." Court cites People v. Cruz (2008) 44 Cal.4th 636, 655-657 (prosecutor's challenge to White but Spanish-surnamed juror was not based on group bias).
In any event, there were "obvious race-neutral" grounds for the challenges, including opposition to the death penalty, and in two cases, criminal records.
Mental defenses - reconsideration of capacity after Atkins
Bobby v. Bies (U.S. Sup. Ct., 6/1/09, 08-598) ___ U.S. ___
No violation of double jeopardy for trial court to reconsider defendant's mental retardation after Atkins v. Virginia (2002) 536 U.S. 304 (holding Eighth Amendment bars execution of mentally retarded offenders).
Motion to vacate - invalid conviction
People v. Vasilyan (2nd Dist., 5/28/09, B205679) ___ Cal.App.4th ___
Judgment entered in 1994 following admission to violating Penal Code section 422.7 was void, and motion to vacate brought in 2007 should have been granted. Penal Code section 422.7 is a penalty provision only and does not describe a substantive offense. (People v. Wallace (2003) 109 Cal.App.4th 1699; In re M.S. (1995) 10 Cal.4th 698, 725.) A conviction for a crime that does not exist cannot be affirmed, and court lacks fundamental jurisdiction.
Appellant was deported in 2004 based on the 1994 convictions.
Search & seizure - refusal does not create suspicion to pat search
In re H.H. (1st Dist., 4/30/09, A122799) ___ Cal.App.4th ___
Minor's refusal to consent to search by itself cannot form the basis for reasonable suspicion to pat search for weapons or probable cause to search for evidence. (See Illinois v. Wardlaw (2000) 528 U.S. 119, 125 ["refusal to cooperate, withhout more, does not furnish the minimal level of objective justification needed for a detention or seizure"].)
Decision of Alameda County Superior Court Judge Paul Seeman reversed by unanimous Division 5 of First District.
Venue - change of
People v. Davis (Ca. Sup. Ct., 6/1/09, S056425) ___ Cal.4th ___
Selection of Santa Clara County for transfer of notorious case (the Polly Klaas murder) was not abuse of discretion. Even though the experts' surveys all concluded that Santa Clara's potential jurors were more prejudiced than those in Los Angeles or San Diego, Santa Clara was the cheapest and most convenient. Hardship and conservation of funds are important factors that may be considered. (People v. Cooper (1991) 53 Cal.3d 771, 805.) Because it is impossible to control heightened media attention in any new venue, the ability of potential jurors to disregard media information is significant. Second change of venue from Santa Clara properly denied.
Weapons - evidence that weapon was stun gun
In re Brandon O. (1st Dist., 5/29/09, A123065) ___ Cal.App.4th ___
In order to find minor culpable of assault with a stun gun or taser, it was not necessary to prove victim had been immobilized. Testimony that victim had been slowed down after the first assault and had to sit on the ground for a few seconds after the next assault was sufificient to show temporary immobilization. Expert testimony from police officer who was familiar with tasers though he had not received formal training.
