ElectricLawyer

Case summaries - Dec 16, 2009

Counsel - Faretta - denial of right to represent self
People v. Butler (Ca. Sup. Ct., 12/10/09, S068230) ___ Cal.4th  ___
    Defendant facing death penalty for killing fellow inmate (after conviction for unrelated double murder) denied right to represent himself. (Faretta v. California (1975) 422 U.S. 806.) Trial court erred in deciding that defendant could not adequately represent himself because of jail restrictions resulting from disciplinary infractions.

Forfeiture - failure to try together with criminal proceeding
People v. v. $10,153.38 (2nd Dist., 5/29/09, B205875) ___ Cal.App.4th  ___
    DA's failure to bring forfeiture proceeding to trial together with criminal proceeding as required by Health & Safety Code section 11488.4 precludes entry of favorable judgment. Criminal conviction did not resolve forfeiture matter because issue whether funds related to drug sales not decided.

Immigration consequences - no plea withdrawal available
People v. Limon (5th Dist., 12/11/09, F056907) ___ Cal.App.4th  ___
    Trial court's advisement re immigration consequences using words almost literally from Penal Code section 1016.5 was sufficient, and motion to vacate and withdraw plea properly denied. Claim of ineffective assistance is "not a wrong encompassed by the statute." (People v. Kim (2009) 45 Cal.4th 1078, 1107, fn. 20.)

Reckless driving - use of red light
People v. Copass (2nd Dist., 12/14/09, B211281) ___ Cal.App.4th  ___
    Officer must activate red light when pursuing traffic offender who tries to leave, but may deactivate it if he loses sight of offender. Resolves conflict between Vehicle Code section 2800.1 and 2800.2. Reckless driving conviction upheld.

Weapons - switchblade
In re S.C. (1st Dist., 11/23/09, A123371) ___ Cal.App.4th  ___
    Penal Code section 653k forbids carrying switchblade even on private property. There is no "public place" requirement.

Case summaries - Dec 8, 2009

Appeals - where notice may be filed
In re Gray (3rd Dist., 12/2/09, C056083) ___ Cal.App.4th  ___
    Deputy clerk assigned to courtroom is part of clerk's office and absent a valid local rule of court to the contrary, notice of appeal can be filed with a courtroom clerk, not just with the appeals unit of the clerk's office. "We caution, however, that our second conclusion is not meant to be an invitation for convicted defendants to routinely file notices of appeal with courtroom clerks. Indeed, doing so may harm, not help, defendants who want to appeal. This is so because experience has shown that the filing of notices of appeal with courtroom clerks, rather than with the appeals unit of the court clerk's office, has led to significant delays in the processing, and ultimate resolution, of appeals." The Sacramento Superior Court's website had a directive saying that NOA's should be filed with the appeals clerk but it was "hortatory."

Appeals - certificate of probable cause
People v. Fulton (3rd Dist., 12/2/09, C058389) ___ Cal.App.4th  ___
    Defendant had to secure certificate of probable cause to challenge his admission to prior prison term allegation. Claim of procedural irregularity challenges validity of negotiated plea to prior prison term allegation. To raise claim, he must have a CPC. (People v. Panizzon (1996) 13 Cal.4th 68, 76.) His failure to obtain a CPC renders his claim noncognizable on appeal.

Arson - no malicious intent shown
In re J.H. (2nd Dist., 12/3/09, B212635) ___ Cal.App.4th  ___
    Court missaplied rule in People v. Atkins (2001) 25 Cal.4th 76, as there was no evidence that act causing fire (setting off firecracker) was done with mental state of malice. Minor should have been found guilty of lesser included of unlawfully causing a fire.

Credits - postsentence credits
In re Gomez (4th Dist., 12/2/09, G042807) ___ Cal.App.4th  ___
    Limitation on postsentence credits under Penal Code section 2933.1(a) has no effect when only violent felony conviction at issue has been stayed under Penal Code section 654. Agrees with In re Phelon (2005) 132 Cal.App.4th 1214. Bureau of Prisons' request for stay of supersedeas denied.

Unauthorized access devices - gift cards stolen from store
United States v. Truong (9th Cir., 12/1/09, 08-10446) ___ F.3d  ___
    Gift cards stolen from retail stores constituted unauthorized access devices prohibited by 18 U.S.C. section 1029(a)(3). Held, even though cards did not contain information identifying a particular person, they still fell within the definition of an access device.

Search & seizure - entry into home to aid injured person
Michigan v. Fisher (U.S. Sup. Ct., 12/7/09, 09-91) ___ U.S.  ___
    Entry into defendant's home after police saw him in house screaming and throwing things, and saw injury to his hand, was justified under need to assist people injured or threatened by injury. See Brigham City v. Stuart (2006) 547 U.S. 398. Test is whether there is "an objectively reasonable basis for believing" medical assistance was needed or persons were in danger.

Counsel - privilege - search of defendant's cell by Sacto Sheriff
People v. Ervine (Ca. Sup. Ct., 12/7/09, S054372) ___ Cal.4th  ___
    Even though Cal Supreme Court "certainly do[es] not condone the intrusion on defendant's privileged materials by members of the Sacrmento County Sheriff's Department," there was no reversible error because prosecutors denied having received any information. Follows Weatherford v. Bursey (1977) 429 U.S. 545 (undercover agent participated in confidential communications but did not pass on information). Case is unusual in that defendant was actually being prosecuted by Lassen County but was in Sacramento on change of venue, so Sacto Sheriff was not part of prosecution team.

Shackling - harmless
People v. Ervine (Ca. Sup. Ct., 12/7/09, S054372) ___ Cal.4th  ___
    Cal Supreme Court finds unjustified and erroneous shackling of defendant during jury voir dire harmless beyond reasonable doubt, even though this was a capital case involving killing of a police officer. Any impact on presumption of innocence offset by fact that jury saw defendant unshackled during actual trial.

Pimping & pandering - prostitutes not accomplices
People v. Cason (4th Dist., 12/7/09, E047440) ___ Cal.App.4th  ___
    Women recruited by defendant to work as prostitutes were not accomplices (which would require corroboration of testimony) because they were not liable to prosecution for identical offense. Even if they had been, evidence needed to corroborate is "slight." (People v. Avila (2006) 38 Cal.4th 491, 562-563.) Here it was corroborated by observations of police. Evidence of pandering sufficient even though one woman was already "actively seeking work" as prostitute when defendant contacted her.

Case summaries - Dec 3, 2009

Appeals - certificate of probable cause to challenge iac
People v. Johnson (Ca. Sup. Ct., 11/23/09, S166894) ___ Cal.4th  ___
    Defendant who desires to appeal from criminal judgment on ground that counsel rendered ineffective assistance regarding the defendant's request to withdraw a guilty or no contest plea first must obtain a certificate of probable cause. Disapproves People v. Osorio (1987) 194 Cal.App.3d 183, and approves People v. Emery (2006) 14 Cal.App.4th 560. Claim of ineffective assistance may still be pursued via habeas corpus petition.

Appeals - constructive filing request by motion
People v. Zarazua (3rd Dist., 11/30/09, C062268) ___ Cal.App.4th  ___
    Court publishes decision to "put to rest a challenge to a procedure commonly used by defendants to perfect appeals." When defendant relies upon counsel to file a notice of appeal in timely manner, and counsel fails to do so, the defendant may request the court of appeal to deem the notice timely filed through the constructive filing doctrine of In re Benoit (1973) 10 Cal.3d 72, 85. The defendant may do this via a motion filed in the court of appeal, and does not have to petition for habeas corpus. Court concedes that it had to wait 15 days after the filing of the motion to give time for AG to object, since the request for constructive filing is a motion under CRC 8.54. Court warns AG that "future failure to file an opposition ... may be deemed to be their consent to the granting of the motion," citing to CRC 8.54(c).

Counsel - ineffective assistance in penalty phase
Porter v. McCollum (U.S. Sup. Ct., 11/30/09, 08-10537) ___ U.S. ___
    In a per curiam opinion unusual for its regard of defendants' rights, Supreme Court holds that petitioner was denied a fair penalty phase when his appointed counsel failed to discover or present during penalty phase in 1988 mitigating evidence of post-traumatic stress disorder following combat in Korean War, as well as evidence abuse suffered as child.

Gangs - insufficient evidence
People v. Ochoa (4th Dist., 11/20/09, E045756) ___ Cal.App.4th  ___
    True findings on gang enhancements not supported by substantial evidence. During robbery, defendant, who was alone, made no gang signs or signals, nor did he say anything gang-related. Gang "experts" testified that defendant identified himself as gang member, but that was not enough.

Habeas corpus - proceedings before commissioner
Gomez v. Superior Court (Felker) (3rd Dist., 11/20/09, C060710) ___ Cal.App.4th  ___
    Summary denial of prison inmate's ex parte application for issuance of writ of habeas corpus is subordinate judicial duty commissioner may perform pursuant to Code of Civil Procedure section  259 because is it not the "trial" of a "cause." However, if commissioner finds prima facie case for relief, and issues alternative writ or order to show cause, cause is created and commissioner may not try the cause without a stipulation.

Hearsay - documents
People v. Smith (2nd Dist., 11/25/09, B212368) ___ Cal.App.4th  ___
    Agreements entered into by Ponzi scheme victims who did not testify properly admitted under Evidence Code section 1101, subdivision (b) to show intent to defraud, a non-hearsay purpose. Documents were authenticated by content, location where found and circumstantial evidence.

Homicide - foreseeable murder of CHP officer
People v. Zielesch (3rd Dist., 11/23/09, C059872) ___ Cal.App.4th  ___
    Defendant who asked accomplice to kill defendant's wife's boyfriend, and who supplied him with a gun and money to buy drugs, was responsible for killing CHP officer who pulled over co-defendant and said, "How are you doing today?"  "When defendant bargained for the assassin's services and armed him with a gun and money to buy methamphetamine, defendant knew that the assassin had an unstable personality, with the 'mentality' to kill someone other than the intended victim of the assassination. Defendant also knew that the assassin had just been released from jail, was on searchable probation, and would not want to be returned to custody if a law enforcement officer found the assassin in possession of methamphetamine and defendant's gun. From these facts, jurors reasonably could conclude the cold-blooded murder of Officer Stevens was a natural and probable consequence of the conspiracy to kill Shamberger because a reasonable person, knowing what defendant knew, would recognize that if the unstable, methamphetamine using, and armed assassin were detained by a law enforcement officer before the assassination was completed, it is likely that he would kill the officer to avoid arrest and complete his mission."

Kidnapping - failure to instruct on incidental movement
People v. Bell (4th Dist., 11/19/09, G041051) ___ Cal.App.4th ___
    Conviction for kidnapping reversed because Orange County Superior Court Judge David A. Thompson failed to give complete instructions on simple kidnapping (judge refused to instruct on incidental movement). Court also finds fault with CALCRIM 1215, because it fails to "capture accurately" the holding of People v. Martinez (1999) 20 Cal.4th 225. On retrial, court must add "Substantial distance means more than a slight or trivial distance. In deciding whether the distance was substantial, you must consider all the circumstances relating to the movement. Thus, in addition to considering the actual distance moved, you may also consider other factors such as whether the [distance the other person was moved was beyond that merely incidental to the commission of the crime of evading a police officer,] whether the movement increased the risk of [physical or psychological] harm, increased the danger of a foreseeable escape attempt, [or] gave the [defendant] a greater opportunity to commit additional crimes."

Priors - failure to prove
People v. Ochoa (4th Dist., 11/20/09, E045756) ___ Cal.App.4th  ___
    Despite complete failure to present evidence of priors, Riverside County Superior Court Judge Paul E. Zellerbach sentenced defendant on the priors. Held, reversed and retrial prohibited.

Probation - condition that defendant not possess stolen property
People v. Freita (3rd Dist., 11/23/09, C060280) ___ Cal.App.4th  ___
    AG concedes that prohibition against possession of stolen property must be modified to specify that defendant must know property is stolen. The provision as written is overbroad in prohibiting constitutionally protected conduct (Cal. Const., art I, sec. 1 [constitutional right to possess property].) But unnecessary to specify knowledge about gun possession, since that is obvious from nature of item (gun), and as felon, defendant has no right to possess guns. (People v. Flores (2008) 169 Cal.App.4th 568.)

Sentencing - consecutive - gang participation and robbery
People v. Sanchez (4th Dist., 11/23/09, E046099) ___ Cal.App.4th  ___
    Imposition of separate and unstayed sentences for both gang participation and robbery constituted multiple punishment in violation of Penal Code section 654. The section precludes multiple punishment for both (1) gang participation, one element of which requires that the defendant have "willfully promote[d], further[ed], or assist[ed] in any felonious criminal conduct by members of th[e] gang," and (2) the underlying felony that is used to satisfy this element of gang participation.

Statute of limitations - unclear record requires remand
People v. Dotson (3rd Dist., 11/30/09, C060310) ___ Cal.App.4th  ___
    Because the information did not, on its face, establish prosecution undertaken within statute of limitations period, necessary to remand for hearing. Issue may be raised at any time. (People v. Williams (1999) 21 Cal.4th 335, 338.)

Three strikes - two convictions from same act
People v. Scott (3rd Dist., 11/24/09, C059703) ___ Cal.App.4th  ___
    When two prior strike convictions arise from same facts, trial court is not compelled to strike one (see People v. Burgos (2004) 117 Cal.App.4th 1209), but the connection is a factor that must be considered when conducting analysis under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to determine whether to exercise discretion to strike the second prior.

Trial - buttons worn by spectators
People v. Zielesch (3rd Dist., 11/23/09, C059872) ___ Cal.App.4th  ___
    "[I] is an insult to the intelligence and integrity of jurors to suggest that, despite the judge's admonition not to be influenced by buttons worn by some of the courtroom spectators, the jurors would have been so influenced by the buttons that they would be unable to base their verdict solely on evidence presented at trial. Nothing about the buttons was coercive or intimidating, and we have no doubt that the verdicts would have been the same if the trial court had not allowed the spectators to wear the buttons during the first six days of this eight-week trial."

Case summaries - Nov 17, 2009

Appeals - late filing
People v. Lyons (2nd Dist., 11/5/09, B212253) ___ Cal.App.4th  ___
    Notice of appeal not timely filed. (See People v. Mendez (1999) 19 Cal.4th 1094-1095.) It was not subject to the rule of "constructive filing." (People v. Panizzon (1996) 13 Cal.4th 68, 75-76.) Prison delivery rule (People v. Slobodion (1947) 30 Cal.2d 362, 366-367) expanding constructive filing to incarcerated defendants who made arrangements with counsel to file notice of appeal (In re Benoit (1973) 10 Cal.3d 72, 86) does not apply because there was no showing defendant made any arrangement with counsel to file the appeal, and did not present evidence (which would have to be done on habeas) to obtain "Benoit" relief.

Child endangerment - relationship to child
People v. Pakes (6th Dist., 10/16/09, H032734) ___ Cal.App.4th  ___
    Defendant who was friend of family and spent a lot of time with them could be considered to have care or custody when he took child to job site with him, and endangered her while driving home and getting into high speed chase. Distinguishes People v. Heitzman (1994) 9 Cal.4th 189 [daughter who visited elderly father and knew of neglect by other family members could not convicted of elder abuse].)

Drugs - legislative amendments to Prop. 36 invalid
Gardner v. Schwarzenegger (1st Dist., 11/5/09, A122920) ___ Cal.App.4th  ___
    Certain provisions of Senate Bill 1137 cannot reasonably be construed to further purposes of Prop. 36, and the bill's provision for a popular vote, if any part of 1137 is invalidated, is itself invalid. The challenged provisions permit incarceration of defendants who violate probation in circumstances where incarceration is prohibited by Proposition 36, and narrow eligibility for Proposition 36 diversion. The vote provision is in effect a referendum (an initiative allows voters to propose new legislation; a referendum permits voters to reject legislation already adopted; Cal. Const., art. II, sec. 9, subd. (a)). A referendum must be placed on ballot by voters, not Legislature.

Habeas corpus - federal - applying 2003 standards to 1985 defense
Bobby v. Van Hook (U.S. Sup. Ct., 11/9/09, 09-144) ___ U.S. ___
    Applying ABA guidelines published in 2003 to determine whether attorneys were ineffective in 1985 trial was error. Restatements of professional standards, we have recognized, can be useful as "guides" to what reasonableness entails, but only to the extent they describe the professional norms prevailing when the representation took place. (Strickland v. Washington (1984) 466 U.S. 668, 688.) In addition, Sixth Circuit applied guidelines as commands. In any event, petitioner failed to show prejudice, as additional evidence would not have made any difference.

Habeas corpus - federal  - no prejudice from ineffective assistance of counsel
Wong v. Belmontes (U.S. Sup. Ct., 11/16/09, 08-1263) ___ U.S. ___
    Petitioner failed to show that even if defense counsel rendered ineffective assistance (a question the Court did not have to reach, but the suggestion was that he had not), he was prejudiced. Some of the additional evidence he might have presented was cumulative and other evidence might have opened door to introduction of past murder. Counsel's "mitigation strategy failed, but the notion that the result could have been different if only Schick had put on more than the nine witnesses he did, or called expert witnesses to bolster his case, is fanciful."

Jury instructions - CALCRIM 3550
People v. Santiago (5th Dist., 11/9/09, F056686) ___ Cal.App.4th  ___
    CALCRIM 3550 does not improperly direct minority jurors to give way to majority or improperly tell jury that all criminal cases must be decided at some point. Distinguishes problems found in People v. Gainer (1977) 29 Cal.3d 835, which disapproved of use of Allen-type instructions (Allen v. United States (1896) 164 U.S. 492) in California. It is a predeliberation instruction, not like an Allen charge.  The features of an impermissible instruction are: "First, the instruction generally contains a discriminatory admonition to minority jurors to rethink their position in light of the majority's views. Second, there is often an inaccurate assertion that the case must at sometime be decided, ignoring the prosecution's option to dismiss after a mistrial. A third common feature is a reference to the expense and inconvenience of a retrial. (Gainer, supra, 19 Cal.3d at pp. 845, 852.)"

Juveniles - ordinance forbidding public intoxication
In re Jennifer S. (1st Dist., 11/10/09, A122900) ___ Cal.App.4th  ___
    Del Norte County Code section 9.42.020, which forbids persons under 21 to be in public place with blood alcohol over .01%, is not preempted by state law. Follows rules of preemption set out in O'Connell v. City of Stockton (2007) 41 Cal.4th 1061.

Search & seizure - inevitable discovery during impound
United States v. Ruckes (9th Cir., 11/9/09, 08-30088) ___ F.3d  ___
    Even though search could not be justified under New York v. Belton (1981) 453 U.S. 454 because defendant had been removed from car prior to search (see Arizona v. Gant (2009) 129 S.Ct. 1710), drugs and firearm would have been found during routine inventory search of impounded car and therefore they were admissible under inevitable discovery theory.

Sentencing - Penal Code section 654
People v. Pakes (6th Dist., 10/16/09, H032734) ___ Cal.App.4th  ___
    Insufficient evidence to support trial court's conclusion that defendant entertained separate criminal objectives when he fled police, endangering his child passenger, in order to avoid being arrested and sent to prison. There was no evidence of a second objective. Therefore fleeing conviction had to be stayed.

Weapons - gun possession in furtherance of drug trafficking
United States v. Mahan (9th Cir., 11/6/09, 08-30475) ___ F.3d  ___
    Defendant who receives guns in exchange for drugs possesses those guns "in furtherance" of drug trafficking offense within meaning of 18 U.S.C. section 924(c). The guns and the drugs do not have to be in close physical proximity to each other.

Case summaries - Oct 30, 2009

Accomplices - instructions on corroboration
People v. Tuggles (3rd Dist., 10/29/09, C054250) ___ Cal.App.4th  ___
    CALCRIM 318 and 335 did not erroneously instruct jury that accomplice's testimony at trial could be corroborated by same accomplice's out-of-court statements. "No reasonable jury would have understood CALCRIM Nos. 318 and 335 to allow Shands to corroborate his own testimony." Even if they were possibly confusing, court also gave CALCRIM 301 which informed jury that Shands' accomplice status rendered testimony inadmissible without additional evidence. Counsel's arguments were consistent with that interpretation.

DUI - forensic report admitted under EC 1280
Lee v. Valverde (4th Dist., 10/29/09, E046731) ___ Cal.App.4th  ___
    Printout of blood test results conducted and reported at or near time of event, but printed or "published" on June 19 was admissible under EC 1280 official records exception. The "report" of June 19 reflected merely a transfer of information from one form of storage to another.

Factual innocence - finding reversed
People v. Medlin (2nd Dist., 10/29/09, B209614) ___ Cal.App.4th  ___
    Findings of factual innocence of dependent care abused by two nurses reversed because notwithstanding acquittals at trial, there was reasonable cause to believe they committed the offense, which is the standard a finding of factual innocence must meet. (PC 851.8(b) and (c).) Acquittal on criminal charges does not prove innocence, but merely the existence of a reasonable doubt as to guilt. (United States v. One Assortment of 89 Firearms (1984) 465 U.S. 354, 361.) A factual innocence finding "shall not be made unless the court finds that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made." (Sec. 851.8(b).) The record must exonerate, not merely raise a substantial question as to guilt. (People v. Adair (2003) 29 Cal.4th 895, 909.)

Flight - failure to instruct
People v. Tuggles (3rd Dist., 10/29/09, C054250) ___ Cal.App.4th  ___
    PC 1127c does not require flight instruction upon introduction of evidence that might be construed as flight. Jury must be instructed on flight only if prosecution relies on such evidence to prove guilt. Here, prosecution did not argue that defendants demonstrated consciousness of guilt.

Forfeiture - objection at sidebar
People v. Tuggles (3rd Dist., 10/29/09, C054250) ___ Cal.App.4th  ___
    Counsel may object at unreported sidebar, and when court later memorializes the timeliness of the object "for the record" issue is preserved for review. (People v. Pinholster (1992) 1 Cal.4th 865, 937.)

Hearsay - defendant wanted to shoot up block
People v. Tuggles (3rd Dist., 10/29/09, C054250) ___ Cal.App.4th  ___
    Statement that defendant "wanted to shoot up the block" properly introduced to show reputation after defense counsel asked questions to show that defendant had a reputation for nonaggression. While a defendant may introduce evidence of character in form of opinion or reputation (EC 1102(a)), prosecutor may present like evidence to rebut defendant's evidence. (EC 1102 (b); People v. Hempstead (1983) 148 ca3d 949, 953.) Opinion based on hearsay is allowed. (EC 1324.) Here, prosecutor's "have you heard" question after defendant elicited evidence of reputation was proper.

New trial - based on jury misconduct
People v. Tuggles (3rd Dist., 10/29/09, C054250) ___ Cal.App.4th  ___
    Trial court did not abuse discretion in denying new trial based on juror misconduct. Under standards of People v. Wilson (2008) 44 Cal.4th 758, 822, failure to disclose was not sufficient to show bias. The questions she was asked concerned her ability to keep an open mind when considering evidence of drug use, not about personal use. The man accused of rape was not a close friend, which is what was asked. She did reveal a hit-and-run in which a friend died. Conversations about drug use did not introduce extraneous evidence into jury room under standard of In re Lucas (2004) 33 Cal.4th 682. Trial court properly refused to disclose juror information, but erred (harmlessly) in holding it had no authority to order jurors to appear at post-trial hearing. Limitations in Code of Civil Procedure sections 206 and 237 do not violate federal constitution.

Search & seizure - Chimel search after defendant removed
People v. Leal (6th Dist., 10/29/09, H031174) ___ Cal.App.4th  ___
    Search was beyond scope of arm's reach rule of Chimel v. California (1969) 395 U.S. 752 and Arizona v. Gant (2009) ___ U.S. ___, 129 S.Ct. 1710 (which reaffirmed Chimel). Police searched area in house where defendant had been before he came out and was handcuffed and taken away on misd warrants. Police not entitled to protection of Herring v. United States (2009) 129 S.Ct. 695 because even before Gant, law was not "muddled."

Witnesses - restricting cross-examination
People v. Tuggles (3rd Dist., 10/29/09, C054250) ___ Cal.App.4th  ___
    Court did not abuse discretion by not allowing defense to cross-examine witness about voluntary 72-hour psychiatric hold. Probative value outweighed by time consumption. Defense could ask whether witness snitched to stay out of prison, but not ask about prison terms (felony convictions had already been admitted). "Trial court did not act in a manner that was arbitrary, capricious, or exceeded the bounds of reason." (See EC 352.) Credibility had already been vigorously attacked on bases of drug use, motive to lie, and criminal convictions.

Reasonable Doubts - Oct 29, 2009

Criminal threats - erroneous instructions
People v. Jackson (6th Dist., 10/22/09, H032539) ___ Cal.App.4th  ___
    Jury should have been instructed that to find defendant guilty of attempted criminal threat, it must find that he specifically intended to make threat that could "reasonably cause the person to be in sustained fear for his or her own safety or for his or her family's safety." (People v. Toledo (2001) 26 Cal.4th 221, 231.)

Multiple punishment - lewd acts against child
People v. Alvarez (4th Dist., 10/28/09, G040739) ___ Cal.App.4th  ___
    Even when defendant has one objective - sexual gratification - Penal Code section 654 does not apply unless crimes were either incidental to or means by which another crime was accomplished. Here, separate violations could have been for own arousal and not as means of committing additional sexual contact.

Search & seizure - exigent circumstances
People v. Hochstraser (6th Dist., 10/27/09, H032765) ___ Cal.App.4th  ___
    Police could enter apartment to conduct welfare check after receiving report of possible domestic violence and missing child from victim's daughter. They found defendant at home, who acted strange and "spacey" and confirmed he'd had a fight the day before, and he did not know where vic was. Cops found the vic's ID and car keys. Police then searched defendant's mother's car, which defendant said he had borrowed from her. Inside a plastic bag inside a plastic container they found the vic's dismembered body. Held, entry into apartment justified by exigent circumstances, following People v. Rogers (2009) 46 Cal.4th 1136. Defendant did not have standing to complain of search of vic's fanny pack (where keys and ID found), and that search gave them probable cause to search car under automobile exception to warrant requirement. (California v. Acevedo (1991) 500 U.S. 565.)

Threatening texts - insufficient evidence
In re C.C. (3rd Dist., 10/27/09, C061230) ___ Cal.App.4th  ___
    Butte County Superior Court Judge Tamara Mosbarger erred in finding minor guilty of sending threatening or obscene texts (PC 653m) because the texts were neither threatening nor obscene, as he did not threaten physical harm, as required by statute, and vulgar language used did not qualify as obscene. The only real threat he made was to kill himself, not his girlfriend.

Case summaries - Oct 21, 2009

Factual innocence - standard and burden of proof
People v. Bleich (4th Dist., 10/9/09, D053808) ___ Cal.App.4th  ___
    Denial of judicial finding of factual innocence under Penal Code section 851.8 upheld, where even though there was insufficient evidence to bind defendant over for trial, defendant failed to carry burden of showing that she was innocent, in other words, that there was not even reasonable cause to arrest her in the first place. (People v. Adair (2003) 29 Cal.4th 895, 905.) The record must exonerate, not merely raise a substantial question as to guilt.

Forfeiture - medical marijuana
United States v. $186,416.00 (9th Cir., 10/20/09, 07-56549) ___ F.3d  ___
    Evidence relied upon by district court was tainted by illegal search of medical marijuana cooperative by LAPD and had to be suppressed. Remaining evidence  insufficient to connect defendant to violation of federal law. Seized funds have to be returned.

Gangs - sufficiency of evidence
People v. Vasquez (2nd Dist., 10/13/09, B213000) ___ Cal.App.4th  ___
    Defendant conceded that he killed victim "for the benefit of, at the direction of, or in association with" a criminal street gang. That was sufficient to support the finding. There is no need to find that the murder was intended to promote criminal activities, other than the murder itself. Reasonable jury could infer that murder intended to increase "respect" (fear of) for the gang. Court disagrees with Ninth Circuit's reading of statute in Briceno v. Scribner (9th Cir. 2009) 555 F.3d 1069 and Garcia v. Carey (9th Cir. 2005) 395 F.3d 1099.

Habeas corpus - federal - disposing of other claims
Corcoran v. Levenhagen (U.S. Sup. Ct., 10/20/09, 08-10495) ___ U.S. ___
    Circuit erred in disposing of petitioner's other sentencing claims without explanation of any sort. It should either have remanded to the district court or itself explained why consideration unnecessary. (Per curiam.)

Hearsay - confrontation
People v. Banos (2nd Dist., 10/19/09, B194272) ___ Cal.App.4th  ___
    Victim's out-of-court statements during prior domestic violence investigations admissible under forfeiture by wrongdoing exception to confrontation clause because there was evidence that defendant killed victim to render her unavailable as a witness. (See Giles v. California (2008) 554 U.S. ___, 128 S.Ct. 2678.)

Homicide -
People v. Coyle (3rd Dist., 10/9/09, C058218) ___ Cal.App.4th  ___
    Defendant improperly convicted of three counts of murder and trial court erred in tripling LWOP sentence after killing one person. The three counts charged a single offense, murder, under three alternative theories of the offense.

Insanity - refusal to allow defendant to enter plea
People v. Henning (3rd Dist., 10/14/09, C060371) ___ Cal.App.4th  ___
    Placer County Superior Court Judge Charles Wachob erred in refusing to allow defendant to exercise personal right to enter not-guilty-by-reason of insanity plea, and refusing to remove defense counsel who would not allow defendant to enter NGI plea. Issue controlled by People v. Medina (1990) 51 Cal.3d 870. Both errors harmless in light of "abundant, uncontradicted evidence" that there was no factual basis for finding of NGI. Defendant's theory of insanity was that after playing Grand Theft Auto for 10 hours, and having stayed up for 10 hours using meth, he just thought he was following game instructions in engaging in robbery mission. Numerous experts opined he was not insane.

Restitution fine - offsetting payment of actual restitution
People v. Vasquez (2nd Dist., 10/13/09, B213000) ___ Cal.App.4th  ___
    Trial court erred in staying restitution fine until actual restitution paid. There is no basis in statute for offsetting direct payments to victim against restitution fine.

Sentencing - consecutive sentencing
People v. Munoz (3rd Dist., 10/13/09, C058521) ___ Cal.App.4th  ___
    Trial court erred in finding that there were separate victims and separate times, so as to justify consecutive sentencing. The finding of "separate times" was clearly erroneous. Court did not understand scope of its discretion, so sentencing remanded. Ruling otherwise within court's power must be set aside as denial of fair hearing and fundamental procedural rights when it appears trial court failed to exercise its discretion. (People v. Downey (2000) 82 Cal.App.4th 899, 912.)

Speedy trial - no grace period when defendant did not waive time
Smith v. Superior Court  (1st Dist., 10/13/09, A124763) ___ Cal.App.4th  ___
    San Francisco Superior Court Judge Ksenia Tsenin erred in refusing to dismiss charges on grounds of denial of speedy trial under Penal Code section 1382. Judge continued matter because attorney for the co-defendant was ill, and then applied 10-day grace period of Penal Code section 1382. Ten day grace period did not apply to objecting defendant who had never waived time, using plain-language of Penal Code section 1382 as standard. No good cause found under Penal Code section 1050.1 to continue case into grace period.

Threats - sufficiency of evidence
People v. Smith (2nd Dist., 10/19/09, B214460) ___ Cal.App.4th  ___
    Even though defendant was in Texas and unemployed when he made threat to victim in California, given his long and escalating history of violence it was reasonable for victim to believe that he would carry through with them.

Weapons - Second Amendment challenge
People v. Villa (3rd Dist., 10/15/09, C059808) ___ Cal.App.4th  ___
    Convictions for juvenile possession of firearm (PC 12021(e)) and possession of loaded firearm in public (PC 12031) are not prohibited by District of Columbia v. Heller (2008) 554 U.S. ___ [171 L.Ed.2d 637]. Juvenile possession requires a prior adjudication, which makes it similar to prohibition on firearm possession by misdemeanant, upheld in People v. Flores (2008) 169 Cal.App.4th 568. Using same case, it finds that the loaded-weapon-in-public charge "is so far removed from the blanket restrictions at issue in Heller that its constitutional validity remains undisturbed by the Supreme Court's opinion." (Flores, at p. 576.)

Case summaries - Oct 9, 2009

Defenses - collateral estoppel
People v. Gordon (2nd Dist., 9/2/09, B209075) ___ Cal.App.4th  ___
    Under principles of collateral estoppel, defendant could not be prosecuted for possession of firearm in court trial following severance of counts after jury acquitted him of all charges relating to the incident where he allegedly possessed the gun, since contested issue of identity crucial to guilt in both proceedings was necessarily decided in his favor in the jury trial that preceded the court trial. See Ashe v. Swensen (1970) 397 U.S. 436, 443.

Discovery - denial of Pitchess motion
People v. Galan (2nd Dist., 10/5/09, B209903) ___ Cal.App.4th  ___
    Where defendant's undisputed extrajudicial statements are reasonably consistent with officer's description of event, Pitchess discovery is foreclosed, because notwithstanding defense counsel's declaration to contrary, client implicitly acknowledged officer was truthful.

Juveniles - violation but not revocation of probation
In re T.P. (2nd Dist., 9/17/09, B209520) ___ Cal.App.4th  ___
    Juvenile court finding that minor violated probation does not render minor ineligible for deferred entry of judgment, but revocation of probation does. Judgment reversed and remanded for proceedings to determine if minor is suitable for the program under Welfare & Institutions Code section 791(b).

Sex offender registration - children under 16
People v. Cavallaro (6th Dist., 10/6/09, H032499) ___ Cal.App.4th  ___
    Mandatory sex offender registration for defendant convicted of lewd acts with children under 16 and 10 years younger than defendant is not unconstitutional under reasoning of People v. Hofsheider (2006) 37 Cal.4th 1185 (mandatory registration for defendant guilty of non-forcible oral copulation with 16-yr old equal protection violation since defendants convicted of unlawful sexual intercourse not required to register).

Case summaries - Sep 30, 2009

Infractions - failure to bring accused to trial on time
People v. Benhoor (2nd Dist., 9/24/09, B212593) ___ Cal.App.4th  ___
    Defendant charged with speeding (an infraction) had right to trial de novo within 45 days, but remedy was not dismissal of infraction. By electing the convenience of trial by written declaration, a defendant waives statutory speedy trial rights. No waiver of constitutional rights, but here delay was only 12 days long and defendant did not show prejudice.

Resisting arrest - campus security officer is not public officer
In re M.M. (4th Dist., 9/24/09, E045714) ___ Cal.App.4th  ___
    Conviction for violating Penal Code section 148 was not supported by substantial evidence because a campus security officer is not a public officer. (See In re Eddie D. (1991) 235 Cal.App.3d 417.)

Robbery - "inside job" - innocent employees
People v. Smith (1st Dist., 9/29/09, A118208) ___ Cal.App.4th  ___
    Even if robbery was "inside job" arranged by store owner, taking from innocent employees supported robbery conviction.

Sex registration - voluntary sodomy
People v. Thompson (1st Dist., 9/29/09, A123269) ___ Cal.App.4th  ___
    Mandatory sex registration following conviction for sodomy with 17-year old violates equal protection. Matter remanded to determine whether defendant is subject to discretionary registration under Penal Code section 290.006. (See People v. Hofsheier (2006) 37 Cal.4th 1185.)

Case summaries - Sep 23, 2009

Counsel - ineffective assistance at penalty phase
Hamilton v. Ayers (9th Cir., 9/18/09, 06-99008) ___ F.3d  ___
    Trial counsel rendered ineffective assistance at penalty phase by failing to investigate and present "the wealth of classic mitigating evidence that was available to him." It was counsel's first capital case, but he did not obtain advice from more experienced counsel or associate co-counsel. He only retained an investigator, and "never even thought about retaining a mitigation expert or a mental health expert." Counsel "compounded the errors he committed during the investigative phase ... by presenting almost none of the little mitigating evidence had had discovered."
    Eastern District Judge Oliver W. Wanger "clearly erred" in relying on trial counsel's testimony as to "standard capital practice" and rejecting the testimony of Hamilton's Strickland expert.

Drugs - bringing drugs into juvenile hall
In re Edward Q. (4th Dist., 9/17/09, G041281) ___ Cal.App.4th  ___
    A person who brings controlled substance or other contraband into juvenile hall is properly charged under Welfare & Institutions Code section 871.5, not Penal Code section 4573. Reversed and remanded for new dispositional hearing, but court does not rule on whether jeopardy may have attached.

Preliminary hearings - allowing DA to re-open prelim during 995 motion
Garcia v. Superior Court  (6th Dist., 9/17/09, H033111) ___ Cal.App.4th  ___Monterey County Superior Court Judge Larry E. Hayes erred in granting DA's request to reopen the preliminary hearing, ostensibly under authority of Penal Code section 995a, to permit superior court judge sitting as magistrate to hear new evidence before ruling on defendant's Penal Code section 995 motion, when new evidence filled evidentiary vacuum concerning the gravamen of the offense. The additional evidence did not constitute "minor errors of omission, ambiguity, or technical defect which can be expeditiously cured or corrected without a rehearing of a substantial portion of the evidence." The error here was not minor, as it went to an element of the offense. See also Loverde v. Superior Court (1984) 162 Cal.App.3d 102.
   

Search & seizure - area adjoining place of arrest
United States v. Lemus (9th Cir., 9/22/09, 08-50403) ___ F.3d  ___
    Area in which police officers discovered incriminating evidence "immediately adjoined the place of arrest," and thus officers were justified in searching without additional probable cause or reasonable suspicion. (Maryland v. Buie (1990) 494 U.S. 325, 334.) Anything in plain view discovered during search could be seized without violating Fourth Amendment. (Horton v. California (1990) 496 U.S. 128, 136-137.)

Sentencing - federal - Prior Penal Code section 245(a)(1) conviction
United States v. Grajeda (9th Cir., 9/21/09, 07-50387) ___ F.3d  ___
    Prior conviction for violating Penal Code section 245(a)(1) (assault with deadly weapon or means likely to produce great bodily injury) is "crime of violence" under U.S. Sentencing Guidelines and thus justifies 16-level enhancement.

Sex offenses - sentencing
People v. Goodliffe (3rd Dist., 9/14/09, C058588) ___ Cal.App.4th  ___
    General statement of legislative intent does not trump plain meaning of Penal Code section 667.6, subdivision (c), and full, separate and consecutive term may not be imposed for each violation of violent sexual offense listed in Penal Code section 667.6, subdivision (e) when crimes do not involve same victim on same occasion.

Subpoenas - SDT lacking sufficient affidavit
Lee v. Superior Court  (4th Dist., 9/21/09, G041511) ___ Cal.App.4th  ___
    Subpoenas duces tecum issued for records of sexually violent predators against whom proceedings were pending should have been quashed as they lacked an affidavit "setting forth in full detail the materiality" of the items sought. Code of Civil Procedure section 1985(b).

Supervised release - conditions
United States v. Watson (9th Cir., 9/23/09, 08-10385) ___ F.3d  ___
    Though waiver of right to appeal does not bar defendant from challenging illegal sentence, here, supervised release (probation condition) that defendant not come into San Francisco without probation officer's permission was not unlawful, and was reasonably tried to court's aims of rehabilitation and deterrence. Note that defendant did not live in San Francisco before the incident in question (a carjacking at gunpoint).