Case summaries - Sept. 4, 2009

Burglary - claim of right defense
People v. Williams (3rd Dist., 8/26/09, C059218) ___ Cal.App.4th  ___
    Sacramento County Superior Court Judge Laurie M. Earl erred by refusing to give claim-of-right defense instruction, since there was substantial evidence that the defendant, in good faith, believed the property taken from victim belonged to the co-principal. "It would defy logic and common sense to hold that a defendant who absconds with goods by force under a good faith belief that he was repossessing his own property does not thereby commit robbery, but that his accomplice, who assists him in the same act and shares the same intent, may be found guilty." Error harmless beyond reasonable doubt.

Child molestation - statute of limitations
People v. Shaw (5th Dist., 8/28/09, F054698) ___ Cal.App.4th  ___
    Statute of limitations for felony violation of Penal Code section 647.6, subdivision (c)(2) (annoying/molesting child with prior conviction) is three years. See People v. San Nicolas (1986) 185 Cal.App.3d 403 and People v. McSherry (2006) 143 Cal.App.4th 598.

Child pornography - intrastate possession may be prosecuted federally
United States v. Gallenardo (9th Cir., 8/28/09, 07-30414) ___ F.3d  ___
    Intrastate possession of child pornography may serve as requisite interstate commerce nexus for federal jurisdiction. See United States v. McCalla (9th Cir. 2008) 545 F.3d 750, 756 ("homegrown" child pornography affects interstate commerce even when there is no evidence that the pornography in the instant case was distributed).

Discovery - transcript of Penal Code section 1326 hearing
Kling v. Superior Court  (6th Dist., 8/31/09, B208748) ___ Cal.App.4th  ___
    DA entitled to notice of hearing held under Penal Code section 1326 to determine defense access to records it subpoenaed into court, but is not entitled to unseal reporters' transcripts of the hearing. "No statutory or constitutional authority permits disclosure to the prosecution of the names of the third parties to whom defense subpoenas have been issued or the nature of the records produced. Unsealing transcripts of any in camera hearing could result in disclosure of information the defense may not use at trial and, in turn, inhibit defense counsel's investigation. This does not prejudice the People. Section 1054.3 requires disclosure of evidence the defense intends to offer at trial." City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118 and Department of Corrections v. Superior Court (1988) 199 Cal.App.3d 1087 do not apply because they predate enactment of discovery provisions and amendments to Penal Code section 1326. "Here the People will know what documents were subpoenaed if the defense decides to use them at trial. The People are not entitled to know what the defense subpoenaed but will not use at trial."

Double punishment - street terrorism and murder
People v. Tran (4th Dist., 8/31/09, G036560) ___ Cal.App.4th  ___
    When sole basis for street terrorism conviction was either attempted murder of rival gang member or actual murder of bystander thought to be gang murder, sentencing on both street terrorism and murder cannot stand, as it violates Penal Code section 654. (People v. Vu (2006) 143 Cal.App.4th 1009.) Judgment modified to stay street terrorism sentence. Court notes that "Tran will now be able to begin serving his life sentence ... after 51 years, instead of 54."

Gangs - firearm use on top of life term okay
People v. Jones (Ca. Sup. Ct., 8/31/09, S148463) ___ Cal.4th  ___
    Defendant subject to life imprisonment for personally shooting at inhabited building for benefit of street gang under Penal Code section 186.22(b)(4) committed "felony punishable by ... imprisonment ... for life," thus triggering application of 20-year enhancement under Penal Code section 12022.53(c).

Gangs - firearm use on top of life term not okay
People v. Brookfield (Ca. Sup. Ct., 8/31/09, S147980) ___ Cal.4th  ___
    Additional punishment for firearm use when defendant was not actual user was improper, when court also sentenced defendant to life term under Penal Code section 186.22(b)(4). PC 12022.53(e)(2) provides that "An enhancement for participation in a criminal street gang . . . shall not be imposed . . . in addition to" an enhancement under section 12022.53 for firearm use unless the defendant personally discharged a firearm in the commission of the offense. Companion case to People v. Jones (Aug. 31, 2009, S148643).

Gangs - prior crimes to prove gang membership
People v. Tran (4th Dist., 8/31/09, G036560) ___ Cal.App.4th  ___
    Trial court did not abuse discretion (EC 352) by allowing evidence of protection racket extortions conducted in 1993 and 1994 on behalf of gang, as they were relevant to prove gang affiliation. "In other words, the Legislature said, in effect: When street terrorism is charged, we don't care about the damaging effect of the prosecutor's presentation of 'two or more' other crimes. It just comes with the territory for prosecution of street terrorism."

Hearsay - blood alcohol lab report confrontation error
People v. Lopez (4th Dist., 8/31/09, D052885) ___ Cal.App.4th  ___
    San Diego Superior Court Judge Lantz Lewis erred prejudicially in admitting blood alcohol laboratory report without testimony from criminalist who actually tested it. (Crawford v. Washington (2004) 541 U.S. 36; Melendez-Diaz v. Massachusetts (June 25, 2009, No. 07-591) ___ U.S. ___, 2009 WL 1789468 [Testimonial hearsay evidence otherwise permitted at a trial may not be admitted in a criminal proceeding unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant].)

Juveniles - probation conditions that minor take medicine
In re Luis F. (1st Dist., 8/31/09, A123599) ___ Cal.App.4th  ___
    Juvenile probation condition that minor continue to take prescribed medications clarified to limit order to take only those medications prescribed for depression and social anxiety disorder. Issue reached despite counsel's failure to object, even though it did not present a pure question of law under In re Sheena K. (2007) 40 Cal.4th 875, 890, because court was "troubled" by the breadth of the order, because it potentially implicated important constitutional rights, i.e., the right to refuse unwanted medication. (In re Qawi (2004) 32 Cal.4th 1, 14; Conservatorship of Wendland (2001) 26 Cal.4th 519, 531-532; Cal. Const., art. I, sec. 1.) Court reaches issue under authority of People v. Vera (1997) 15 Cal.4th 269, 276-277 [[appellate court may excuse a failure to object where the claimed error affects a defendant's fundamental constitutional rights]. Ed. Note: thoughtful nuanced decision penned by Justice Richman.

Misconduct - prosecutorial - arguing depublished case
People v. Williams (3rd Dist., 8/26/09, C059218) ___ Cal.App.4th  ___
    Third District takes DA and Sacramento County Superior Court Judge Laurie M. Earl to task for relying upon a depublished case. "We note with concern that the prosecutor cited and the trial court seemed to be influenced by People v. Hargrove, an opinion that all parties knew had been ordered depublished by the California Supreme Court. (See Cal. Rules of Court, rule 8.1105(e).) We remind counsel that use of a depublished case for this purpose is absolutely prohibited by the California Rules of Court. (Rule 8.1115(a).)" .... "persistent use of unpublished authority may be cause for sanctions. (See Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869, 885.)"

Probation - revocation after probationary period expired
People v. Burton (1st Dist., 8/31/09, A122183) ___ Cal.App.4th  ___
    Once expiration of a probation period is tolled by the filing of a petition to revoke, then as long as probationer is found to have committed some probation violation during the probation period, as charged in a petition filed during the probation period, the trial court retains jurisdiction to revoke probation after period when probation would have expired absent tolling, even if tolling was based on a violation prosecution did not ultimately prove.

Restitution fines - imposition when no mention made in plea bargain
People v. Villalobos (5th Dist., 8/28/09, F056729) ___ Cal.App.4th  ___
    Trial court could impose $4,000 restitution and parole revocation fines even though they were not mentioned in the plea agreement. Court of Appeal finds they were left to the court's discretion. See People v. Walker (1991) 54 Cal.3d 1013 and People v. Crandell (2007) 40 Cal.4th 1301. Walker distinguished because defendant here was told he may have to pay restitution and that encompasses a restitution fine. Court reiterates Walker's warning that courts inform defendants of restitution fines and give the Penal Code section 1192.5 admonition, neither of which was done here.