APPEALS - SETTLED STATEMENT
People v. Cervantes (Second Dist., 5/15/07, B183412) 07 C.D.O.S. 5392
"Wilfredo Arias Cervantes intends to appeal a judgment following his conviction of drug crimes. (Health & Saf. Code secs. 11350, subd. (a), 11364.) He faces an insurmountable obstacle. The court reporter is unable to prepare a trial transcript. Current defense counsel did not try the case. The trial judge has no recollection of the trial proceedings. Yet, he approves a settled statement. This is unsettling. We vacate the order approving the settled statement and remand for further proceedings."
After admitting it had not recollection of the proceedings, the court approved the proposed statement prepared by the prosecutor.
"The trial court could not resolve this conflict without Mark Stein, Cervantes' trial counsel. The court apparently concluded that Stein was unavailable because he had left the public defender's office. We recently learned that Mr. Stein is currently a member of the California State Bar and has a law office in Ventura. We direct the trial court to determine whether Stein can assist the court in a new hearing to prepare a settled statement. All counsel who are involved in this case are officers of the court and we assume they will make a good-faith effort to settle the record.
The order approving the settled statement is vacated and the cause is remanded for further proceedings with instructions that the trial court hold a hearing to determine whether Cervantes' trial attorney is able to assist the court in preparing a settled statement. If the court is not able to approve a settled statement, it shall vacate the judgment and order a new trial."
Ed. Note: this is a very strange case. Why was Mr. Stein unavailable to settle the statement?
CONFESSIONS - "I AM GUILTY" STATEMENT MADE IN OPEN COURT
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
Defendant's statement, "I am guilty," made suddenly in open court during pretrial proceedings, was admissible at trial. It was not a "bona fide offer to plead guilty" (see People v. Sirhan (1972) 7 Cal.3d 710, 746) which would have been inadmissible under Evidence Code section 1153 and Penal Code section 1192.4.
CONFESSIONS - CUSTODY; CONVERSATION WITH FATHER; INVOLUNTARINESS
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
Even assuming that the question whether a reasonable person would have been free must be answered in light of the defendant's age, low intelligence and developmental disability, an issue not previously decided (see generally Yarborough v. Alvarado (2004) 541 U.S. 652, 666-668), here defendant was not subjected to custodial interrogation. The detective repeatedly told defendant that he was not under arrest and he was free to end the questioning at any time and leave. At the end of the (3+ hour) interrogation the deputies did not arrest him; instead they took him home. When defendant asked to use the telephone, he was permitted to do so. Although conversation with father did take place after arrest, it was not an interrogation. (Arizona v. Mauro (1987) 481 U.S. 520.) Statements to offciers were not involuntary because the officers did not threaten or coerce him. (Colorado v. Connelly (1986) 479 U.S. 157, 167.)
DEATH PENALTY
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
DEATH PENALTY - PENALTY PHASE ARGUMENT
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
Prosecutor's comments about the victims' deaths were emotional, but not excessively so. They were based on the evidence and fell within the permissible bounds of argument. (See People v. Harrison (2005) 35 Cal.4th 208, 259.) "Unlike the guilt determination, where appeals to the jury's passions are inappropriate, in making the penalty decision, the jury must make a moral assessment of all the relevant facts as they reflect on its decision. [Citations.] Emotion must not reign over reason and, on objection, courts should guard against prejudicially emotional argument. [Citation.] But emotion need not, indeed, cannot, be entirely excluded from the jury's moral assessment." (People v. Smith (2003) 30 Cal.4th 581, 634.)
Although normally prosecutor is not allowed to comment on conditions of confinement, here because court permitted defense to present evidence of life-without-parole conditions, prosecutor could comment that defendant would be able to do crafts and hobbies and watch television.
Evidence that close friends and relatives of the victims suffered emotional trauma as a result of their deaths was permissible victim impact testimony, and prosecutor appropriately commented on it in his closing argument.
DEATH PENALTY - PENALTY PHASE - JURY DELIBERATIONS; DISCUSSION BY JURY OF FAILURE TO TESTIFY
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
Although a defendant has a Fifth Amendment right not to testify at penalty phase, and jury may not draw adverse conclusions from exercise, here comments on defendant's failure to testify merely expressed regret that defendant had not testified, because such testimony might have assisted the jurors in understanding him better.
Discussion by jurors of length of appellate process and possibility that defendant would never be executed did not diminish sense of responsibility.
DEATH PENALTY - PRETRIAL OFFER NOT MITIGATING EVIDENCE
People v. Cook (Cal. Supreme Court, 5/17/07, S0492659) 07 C.D.O.S. 5413
Rejected plea bargains do not bear on defendant's character, prior record, or circumstances of crime, and therefore do not constitute proper mitigating evidence.
DEATH PENALTY - PROPORTIONALITY
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
Death sentence not unconstitutional as applied, though defendant was young (21 years old at the time of the murders), of low intelligence, had chronic and uncontrolled epilepsy, brain damage, and mental illness. While acknowledging the seriousness of his disabilities, court notes that defendant committed two robberies during which he murdered six people by shooting them in the head, and to ensure the deaths of two of his victims he fired at close range, holding the gun less than two inches from their heads.
DEATH PENALTY - EXECUTION OF DEVELOPMENTALLY DISABLED DEFENDANT
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
Though U.S. Supreme Court held that execution of mentally retarded individuals violates Eighth Amendment (Atkins v. Virginia (2002) 536 U.S. 304), which is defined in California as t"he condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18," here there was no evidence presented at the trial of the extent of defendant's current mental impairment, so question is left for habeas corpus.
DEATH PENALTY - SYSTEMIC ARGUMENTS
People v. Cook (Cal. Supreme Court, 5/17/07, S0492659) 07 C.D.O.S. 5413
With little discussion, court rejects constitutional arguments against death penalty law.
DEATH PENALTY - SYSTEMIC ARGUMENTS
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
The usual arguments; the usual result.
EVIDENCE - DESTRUCTION BY POLICE
People v. Cook (Cal. Supreme Court, 5/17/07, S0492659) 07 C.D.O.S. 5413
Destruction of trash bag in which bloodstained shoes were found in defendant's garage, electrophoretic gel plates on which criminalist tested bloodstains, and book of parole photos shown to witnesses did not deny defendant due process. (Arizona v. Youngblood (1988) 488 U.S. 51, 58.) Defendant failed to show that the evidence was material and favorable. No need to given instruction on destruction when the destruction was not in bad faith. (People v. Zapien (1993) 4 Cal.4th 929, 964; People v. Farnam (2002) 28 Cal.4th 107, 167.)
EVIDENCE - POVERTY TO SHOW MOTIVE
People v. Cook (Cal. Supreme Court, 5/17/07, S0492659) 07 C.D.O.S. 5413
Defendant's letter to landlord explaining that he had not had the money to do work he had promised but that now he was employed by the victims was not merely evidence of poverty as motive (People v. Koontz (2002) 27 Cal.4th 1041, 1076), but was relevant to place him at crime scene, and was not particularly prejudicial. Error harmless in any event.
EXPERTS - EVIDENCE OF ELECTROPHORETIC TESTING
People v. Cook (Cal. Supreme Court, 5/17/07, S0492659) 07 C.D.O.S. 5413
Once a scientific procedure is generally accepted in the scientific community (see People v. Fierro (1991) 1 Cal.4th 173, 215), variations in technique or procedure go to the weight, not to admissibility. (People v. Cooper (1991) 53 Cal.3d 771, 812-813.) This rule would not have prevented defendant from showing at trial that the expert's variations amounted to a "material scientific distinction" or material failure to use correct, scientifically accepted procedures (see People v. Venegas (1998) 18 Cal.4th 47, 54, 80), but defendant made no such showing, and the expert testified regarding the variations and their justifications.
INCOMPETENCE - FAILURE TO APPOINT DIRECTOR OF REGIONAL CENTER AND SUFFICIENCY OF EVIDENCE
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
Because defendant's epilepsy originated before 18th birthday, was expected to continue indefinitely, and constituted a substantial handicap, he was developmentally disabled within meaning of Penal Code section 1369 and when court declared a doubt as to competence, it had to appoint the director of the regional center for the developmentally disabled, and the failure to do so was error. Court disapproves People v. Castro (2000) 78 Cal.App.4th 1402 to the extent it held that this error requires automatic reversal. Here the error did not deprive defendant of a fair competency trial. The experts who did examine defendant were familiar with his developmental disability and considered it.
Evidence of competence (only one expert found him competent and the trial court of course went along with his opinion) was substantial and supported the trial court's determination, even though the defendant blurted out "I am guilty" during a pretrial proceeding because he said Jesus told him to do so.
JURY - DISMISSING JUROR OVER OBJECTION
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
No error in dismissing juror whose father-in-law had died suddenly and who had to attend funeral even though judge did not speak to juror personally (juror's wife talked to clerk).
JURY - MISCONDUCT - REFUSAL TO DELIBERATE; BRIEF DELIBERATIONS AFTER REPLACEMENT; PERSONAL EXPERIENCE
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
Juror expressed fixed conclusion at the beginning of guilt and penalty deliberations and refused to consider other points of view, refused to speak to other jurors, and tried to separate himself physically from the rest of the jury by sitting in a corner. This was misconduct. (People v. Engelman (2002) 28 Cal.4th 436, 443-444.) But failure of the two entities (the 11 jurors and the 1 juror) to discuss the case with each other was harmless.
Fact that after one juror was replaced, the jury rendered a verdict within two and a half hours was not evidence that original jurors disregarded trial court's instruction to put aside previous deliberations and begin anew. Brevity of deliberations proves nothing. (See generally People v. Daugherty (1953) 40 Cal.2d 876, 890 [guilty verdict after 75 minutes of deliberations at guilt phase of capital trial did not demonstrate jury bias]; People v. Mundt (1939) 31 Cal.App.2d 685, 690 [guilty verdict after six minutes of deliberations was not improper].) Newly constituted jury was not required to deliberate for same length of time as original jury, nor review the same evidence. When there are no indications to the contrary, court assumes jurors followed trial court's instructions and started afresh. (See People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 ["The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions."].)
Fact that juror relied on personal experience with firearms to form opinion about accuracy of murder weapon, and he mentioned experience to other jurors, was a normal part of jury deliberations and not misconduct. (People v. Yeoman (2003) 31 Cal.4th 93, 162 [jurors' comments regarding drug use by family members and the jurors themselves were not misconduct].)
Use Note: The juror who expressed the fixed conclusions also answered a posttrial questionnaire in Latin, may have lied in his answers to the trial questionnaire, and was called "offensive" by the trial court.
LINEUPS - NO RIGHT TO COUNSEL AND NOT UNDULY SUGGESTIVE
People v. Cook (Cal. Supreme Court, 5/17/07, S0492659) 07 C.D.O.S. 5413
Federal constitution does not require counsel at lineup conducted before initiation of adversary judicial proceedings. (Kirby v. Illinois (1972) 406 U.S. 682, 689, 691; United States v. Gouveia (1984) 467 U.S. 180, 188.) California Constitution does afford suspect right to counsel at preindictment lineup (People v. Bustamante (1981) 30 Cal.3d 88, 102), but after Proposition 8, exclusion of evidence is not available as a remedy. (People v. Johnson (1992) 3 Cal.4th 1183, 1222-1223.)
Defendant failed to show that identification procedures caused the defendant to stand out from others in a way that would suggest the witness should select him, and was therefore not unduly suggestive. (People v. Carpenter (1997) 15 Cal.4th 312, 367.)
MISCONDUCT - CLOSING ARGUMENT
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
Though prosecutor may not appeal to jury's passions by asking them to imagine themselves in position of victims, here it was defense counsel who first raised the issue by arguing that because defendant was so weak and ineffectual the victims could have taken away his gun. It was improper for prosecutor to ask jurors to imagine victims' thoughts in last few seconds of life, but not harmless given "overwhelming" evidence of guilt. Arguing that a witness was credible was not improper vouching. Arguing that defense evidence had not undermined prosecution's case was not shifting burden of proof. Pointing out that absence of bloodstains on coat and shoes (which defense argued was proof of innocence) merely meant that defendant might have cleaned or disposed of clothes was not improper.
Argument that victims died as soon as defendant shot them, whereas defendant was still alive five years after murders, and would still be alive during appeal, whether or not proper argument, did not minimize jury's responsibility for penalty decision. (See generally People v. Bittaker (1989) 48 Cal.3d 1046, 1106.) Even if improper, it was brief and oblique reference that was harmless under any standard of prejudice.
MISCONDUCT - FAILURE TO CONTROL WITNESS - NOT HERE
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
Although a prosecutor has duty to guard against statements by witnesses containing inadmissible evidence, and if the prosecutor believes a witness may give an inadmissible answer during his examination, he must warn the witness to refrain from making such a statement (People v. Warren (1988) 45 Cal.3d 471, 481-482), here, record did not show that prosecutor had reason to believe that detective might refer to the "Thrill Killer" in testimony, nor did it show what the prosecutor said to the detective on the subject before he testified.
MISCONDUCT - PROSECUTORIAL - PRESERVATION OF ISSUE
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
Defense "motion" to restrict prosecutor's penalty phase argument was in essence a generalized trial brief which did not make up for failure to object to specific instances of misconduct.
SEARCH & SEIZURE - USE OF FALSE NAME ON PACKAGE
People v. Pereira (First Dist., 5/15/07, A114794) 07 C.D.O.S. 5388
"Whether a person abandons property that it mails under a fictitious name is a question of fact and that there is substantial evidence to support the trial court's finding that defendant did not abandon the package in this case." Here defendant trial to send a teddy bear through a shipping business. Because he had sent several items using different names, the shipper opened the package and called police. Without obtaining a warrant, the cops tore open the teddy bear and found marijuana.
Ed. Note: I think this is the first time I've seen a person called an "it." Is this proper grammar?
SENTENCING - NATURE OF PRIOR CANNOT BE DETERMINED BY CONSIDERING HEARSAY AND BY "ADOPTIVE ADMISSION"
People v. Thoma (Second Dist., 5/15/07, B170355) 07 C.D.O.S. 5391
Felony Vehicle Code section 23153, subdivision (a) is only a strike if the defendant personally inflicts great bodily injury. Reversing itself after the California Supreme Court ordered it to, Second District holds that defendant's failure to dispute the prosecutor's description of the victim's injuries during the sentencing on the prior conviction did not constitute an adoptive admission, because a defendant's statements made after a guilty plea are not part of the record of the prior conviction. Hearsay statements of nurse admitted at preliminary hearing could not be used to establish element, even though preliminary hearing transcript was used as factual basis at time of plea.
VENUE - CHANGE OF
People v. Leonard (Cal. Supreme Court, 5/17/07, S054291) 07 C.D.O.S. 5424
Although nature of crime (six murders) weighed in favor of change of venue, Sacramento County was populous enough so that a fair jury could be found. Court found persuasive the fact that defense counsel did not use all the peremptory challenges. (See People v. Daniels (1991) 52 Cal.3d 815, 854 ["In the absence of some explanation for counsel's failure to utilize his remaining peremptory challenges, or any objection to the jury as finally composed, we conclude that counsel's inaction signifies his recognition that the jury as selected was fair and impartial."].) Status of defendant (troubled loner) did not weigh heavily for or against, and status of victims (not well known) weighed against change.
