Reasonable Doubts - May 25, 2010

Appeals - attempt to augment appellate record
People v. Castillo (S171163, 5/24/10) Cal.4th
    Court refuses to consider letters submitted by amici and referred to in their briefs. It was an attempt to augment the record "in contravention of the general rule that an appellate court generally is not the forum in which to develop an additional factual record." (People v. Peevy (1998) 17 Cal.4th 1184, 1207 [rejecting defendant's attempts in the appellate court to present evidence of widespread police misconduct]; see People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17 [record on appeal will not be augmented to add material not a proper part of the record in the trial court]; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 ["As a general rule, documents not before the trial court cannot be included as a part of the record on appeal"].)

Continuances - dismissal as sanction for failure to provide notice
People v. Ferrer (A124178, First Dist, 5/14/10) Cal.App.4th
    PC 1050 and 1050.5 prohibit dismissal as sanction for failing to provide notice of continuance motion or good cause for failing to provide such notice. Here court did not expressly dismiss case, but denial of DA continuance of Penal Code section 1538.5 hearing amounted to dismissal. Dismissal was based on procedural ground not implicating defendant's speedy trial right. Even though 1050(d) expressly states "the motion for continuance shall not be granted," the addition of section 1050(l) in 2003, which states "This section is directory only and does not mandate dismissal of an {Slip Opn. Page 5} action by its terms." PC 1050.5(b) was also added: "The authority to impose sanctions provided for by this section shall be in addition to any other authority or power available to the court, except that the court or magistrate shall not dismiss the case." Court points out that trial courts may impose fines or report the attorney to the State Bar.

Credits - additional credits
People v. Hopkins (H033413, H034048, 6th Dist, 5/11/10) Cal.App.4th
    Defendant entitled to additional credits due to his being held in prison past his parole date, but not to additional credits under amended PC 4019. The amended statute is not required to be applied retroactively. Disagrees with People v. Brown (2010) 182 Cal.App.4th 1354.

Death penalty - issues considered and rejected
People v. Thompson (S056891, 5/24/10) Cal.4th
    Issues: exclusions of jurors based solely on questionnaires; Batson/Wheeler errors; search of defendant's mother's car; sufficiency of evidence of first-degree murder; sufficiency of evidence of aiding and abetting; significance of split verdict; prosecutorial misconduct; alleged ineffective assistance of counsel; accomplice testimony corroboration; inherently incredible testimony; robbery-murder special circumstances; special circumstances; penalty phase and constitutional challenges.

Discovery - sanctions against DA reversed
People v. Superior Court (Mitchell) (B220991, 2d Dist, 5/6/10) Cal.App.4th
    Trial court abused discretion in excluding evidence as sanction for DA's failure to provide discovery. Court had to exhaust less drastic sanctions first. (PC 1054.5(c).) The court did note that "Certainly the record paints a picture of a prosecutor who often failed to appear for hearings and did not diligently provide discovery to the defense. And the trial court articulated its understandable frustration with [Martin J.] Bean on many occasions."

Escape - escape from officer's custody within jail confines
People v. Ligons (B212616, 2d Dist, 5/13/10) Cal.App.4th
    Because PC 4532 does not apply to breaking away from officer's custody while still within custodial facility, Los Angeles Superior Court Judge Charles Sheldon erred in instructing jury that defendant could be convicted.

Forgery - Possession of checks from three people
People v. Otubuah (E047271, 4th Dist, 4/7/10) Cal.App.4th
    Twenty-four of 27 counts of possession of forged checks had to be reversed because the 27 checks were from three separate victims. Forgery by possession of checks occurs once per victim. Because trial court's implied finding that defendant's identity theft ring harbored separate intent to defraud each of the three issuers, PC 654 did not mandate staying any of the remaining convictions.

Guilty pleas - judicial bargaining
People v. Woosley (C061440, 3d Dist, 5/21/10) Cal.App.4th
    Trial court's promise to dismiss enhancement and imposed agreed-upon sentence in exchange for guilty plea, made over DA's objection, constituted unlawful judicial plea bargain. Separation of powers violation.

Habeas corpus - from Appellate Division affirmance
Garber v. Superior Court (People) (B212766, 2d Dist, 5/13/10) Cal.App.4th
    Defendant was convicted of a misdemeanor. The conviction was affirmed by the Appellate Division. He applied (pro per) for transfer to the court of appeal, which denied transfer on the basis of an inadequate record. He petitioned for review to the California Supreme Court, which denied review on the basis that the decision to deny transfer of a case within the appellate jurisdiction of the superior court is not reviewable. He then filed a document entitled "Request for Rehearing or Writ of Mandate." The court of appeal then appoints counsel and issues "an order to show cause which deemed Garber's pro se filing a petition for writ of habeas corpus." It then proceeds to affirm the conviction on all grounds.

Homicide - aiding and abetting suicide defense
People v. Lam (B212994, 2d Dist, 5/10/10) Cal.App.4th
    Defendant stole money from his wife to pay for his gambling losses. He testified that when she found out, she suggested a double suicide, but only she died. He appealed the trial court's refusal to give an instruction on aiding and abetting a suicide. Held, even if defendant's version of the facts supported a mutual suicide pact it did not support an aiding and abetting suicide instruction because he actively participated in the final overt act that could have resulted in only the wife's death (pulling on a necktie wrapped around her neck). Court distinguishes in re Joseph G (1983) 34 Cal.3d 429, where defendant drove a car over a cliff.

Homicide - assault on child causing death
People v. Wyatt (S161545, 5/10/10) Cal.4th
    Mens rea of assault resulting in death of child (PC 273ab) requires only that prosecution prove defendant was aware of facts that would lead reasonable person to realize battery would directly, naturally and probably result from defendant's conduct. "Here, substantial evidence established that defendant knew he was striking his young son with his fist, forearm, knee, and elbow, and that he used an amount of force a reasonable person would realize was likely to result in great bodily injury."

Jury - taking verdict from 11 jurors
People v. Traugott (E046884, 4th Dist, 5/6/10) Cal.App.4th
    Riverside County Judge John G. O'Rourke violated defendant's Sixth Amendment right to a unanimous jury verdict  and committed structural error (mandating reversal without a showing of prejudice) by accepting a verdict from 11 jurors (12th juror had "escaped" to job interview), even though defendant's attorney agreed. Held, the waiver had to be entered by the defendant personally (she was not there because she thought the bailiff had told her she could be on call). Even though 12 jurors had actually voted, all 12 had to orally affirm the verdict.

Jury selection - telling jury to set aside experience
Taylor v. Sisto (09-15341, 9th Cir., 5/25/10) F.3d
    Telling jurors to put their personal experiences in a "box" outside the courtroom "created a pool of prospective jurors who were seeking to strip themselves of part of what made them human." The preinstruction contradicted or unreasonably applied "a series of holdings concerning the nature of trial by jury under the Sixth Amendment."

Juveniles - life for burglary
Graham v. Florida (U.S. Sup. Ct., 08-7412, 5/17/10) U.S.
    Eighth Amendment's cruel and unusual punishment clause does not permit juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime.

Parole - governor's decision not supported by any evidence
In re Calderon (A125831, 1st Dist, 5/12/10) Cal.App.4th
    Noting that "the exceedingly deferential nature of the 'some evidence' standard [to support governor's denial of parole] does not convert a reviewing court '"into a potted plant," ' " court holds that there was no evidence supporting the governor's decision.

Pimping and pandering - good faith belief prostitute over 18
People v. Branch (C060225, 3d Dist, 5/6/10) Cal.App.4th
    A good faith belief that a prostitute is 18 is not a defense to pimping or pandering a minor under the age of 16. Defendant's conduct would have been criminal regardless of child's age.

Prelims - challenge to Prop. 115
Peterson v. State of California (09-15633, 9th Cir, 5/17/10) F.3d
    Agreeing with California Supreme Court, Ninth Circuit panel holds that Prop. 115's admission of hearsay evidence at a preliminary hearing does not violate the Sixth Amendment. Preliminary hearings are not constitutionally mandated. Confrontation is "basically a trial right." Even though Hurtado v. California (1884) 110 U.S. 516, which held there is no right to a grand jury indictment in state court, mentions the right to cross-examination, it did not rule that such was required.

Priors - moral turpitude
People v. Douangpanya (C061501, 3d Dist, 5/11/10) Cal.App.4th
    Trial court did not err by telling jury that priors involved moral turpitude and by defining it as "a readiness to do evil." (People v. Castro (1985) 38 Cal.3d 301.) Defendant opened up the issue of what moral turpitude meant by asking the court to sanitize the priors (one of which was identical to the current offense).

Privileges - mental examination under EC 730
Maldonado v. Superior Court (A126236, 1st Dist, 5/13/10) Cal.App.4th
    Mental examinations under EC 730 allowed to go forward, as defendant placed his mental state at issue, but trial court ordered to delay disclosures of portions of examination containing defendant's statements until he has an opportunity to challenge disclosure potentially still subject to privilege claim. Defendant must be allowed to assert the claim initially in camera, and if privilege applies, material must be redacted before disclosing it to the prosecution. However, disclosure of examination results is not deferred until evidence presented at trial, as prosecution is entitled to time to prepare rebuttal and cross-examination. Discussion of writ review of discovery orders (ordinarily disfavored) when privilege affected.

Restitution fines - error to use term "reimpose"
People v. Cropsey (C061053, 3d Dist, 5/18/10) Cal.App.4th
    Court used wrong word, "reimposing" restitution fine. Restitution fines were in effect, and court simply meant the previously imposed fines went into effect. See People v. Chambers (1998) 65 Cal.App.4th 819 (court could not impose higher restitution fine upon revocation because original fines were still in effect).

Sentencing - felon in possession of gun and poss. of meth
People v. Vang (C059700, 3d Dist, 5/17/10) Cal.App.4th
    No error in sentencing defendant for felon in possession consecutively to sentence for possession of meth while armed. Court found separate intents and finding was supported by substantial evidence. The offenses involved distinct dangers, separate acts, and separate intents.

Sentencing - retroactive application of PC 4019
People v. Pelayo (A123042, 1st Dist, 5/6/10) Cal.App.4th
    Defendant entitled to retroactive additional conduct credits under amended PC 4019. "The Fifth District ruled in People v. Rodriguez (2010) 183 Cal.App.4th 1 (Rodriguez), that the amendments do not apply retroactively. The Third District, Second District (Divisions One and Six), and our First District (Division Two) have held that the amendments are retroactive. (People v. Brown (2010) 182 Cal.App.4th 1354 (Brown); People v. House (2010) 183 Cal.App.4th 1049; People v. Delgado (Apr. 29, 2010, B213271) __ Cal.App.4th __ [2010 Cal.App. Lexis 600]; People v. Landon (Apr. 13, 2010, A123779) __ Cal.App.4th __ [2010 Cal.App. Lexis 517] (Landon).) We join the majority view and also hold the amendments apply retroactively, entitling Pelayo to additional presentence custody credit."

Sentencing - PC 654
People v. Wynn (D056808, 4th Dist., 5/24/10) Cal.App.4th
    Trial court should have stayed Penal Code section 12022, subdivision (b)(1) sentence enhancement for use of a deadly or dangerous weapon in connection with the burglary count because it was based on the same indivisible course conduct that gave rise to the assault with a deadly weapon counts.

Sentencing - retroactive application of PC 4019
People v. Otubuah (E047271, 4th Dist, 4/7/10) Cal.App.4th
    Adding to the total confusion, the Fourth District holds that PC 4019 should not be applied retroactively.

Sex offenses - joinder of counts in different counties
People v. Nguyen (G040600, 4th Dist, 5/20/10) Cal.App.4th
    PC 784.7(a) permits joinder of any combination of listed sex crimes, but requires court to hold PC 954 joinder hearing at which court may exercise discretion to deny joinder. Court did not abuse discretion in allowing Orange County offense to be tried in San Bernardino County with SB offense.

Sexually dangerous federal prisoner - constitutionality of law
United States v. Comstock et al (08-1224, 5/17/10, U.S. Sup. Ct.) U.S.
    Necessary and Proper Clause of U.S. Constitution grants Congress authority to enact federal law allowing continued detention of sexually dangerous federal prisoners. No violation of Tenth Amendment either. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Ginsburg, and Sotomayor, JJ.,  joined. Kennedy, J., and Alito, J., filed opinions concurring in the judgment. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined in all but Part III-A-1-b.

Sexually violent predators - judicial estoppel applied to enforce stipulation
People v. Castillo (S171163, 5/24/10) Cal.4th
    DA and public defender entered into stipulation that defendant would receive two-year terms, but AG argued on appeal that stipulation was invalid because it was in derogation of Senate Bill 1128 and Prop. 83, which changed SVP law to require indeterminate terms. Held, judicial estoppel precludes AG from taking position contrary to DA's position below. (Note DA filed amicus brief supporting petitioner.) On appeal, AG argued that petitioner had not met "detrimental reliance" requirement of equitable estoppel. Held, in light of uncertain state of the law at the time stipulation was signed and parties' intent to avoid unwarranted dismissal of proceedings, "the stipulation should be enforced under the judicial estoppel doctrine ...."

Theft and receiving - receiving must be stricken, not theft
People v. Ceja (S157932, 5/17/10) Cal.4th
    Because trial court failed to instruct jury it could not find defendant guilty both of theft and receiving, jury brought back verdicts on both. Court of Appeal reversed petty theft conviction because the greater felony offense of receiving took precedence over "lesser" misdemeanor theft. No, unanimous Supreme Court says. Rule against dual convictions, in effect long before 1992 codification in PC 496(a), is based on premise that theft takes precedence, and Legislature did not indicate any change in established procedure. "The Attorney General's arguments are superficially appealing, but do not withstand close examination." [I love how Corrigan writes.]

Weapons - trailer as "place of residence"
Garber v. Superior Court (People) (B212766, 2d Dist, 5/13/10) Cal.App.4th
    Statutory place of residence exemption did not apply to trailer which defendant claimed he sometimes used as a residence. He was not using it as a place of residence when he drove to the park to walk his dog.

Wiretapping - errors, but harmless
People v. Roberts (D053377, 4th Dist, 5/21/10) Cal.App.4th
    Wiretaps were obtained legally under PC 629.50 et seq. but court erred when it did not require state to provide timely reports under section 629.60 and to file application to use nontargeted intercepted conversations as soon as practicable as required by PC 629.82(a)(1), but errors harmless. "As a matter of first impression, we hold that when a defendant moves to suppress evidence on the grounds the reports required under section 626.60 were inadequate or untimely, the state has the burden to show there was no error, the violation did not contravene a central purpose of the Act, or the purpose of the provision was achieved despite any error. (People v. Jackson (2005) 129 Cal.App.4th 129, 146-147.)" [Note extensive discussion of state wiretap law and procedure.]