Reasonable Doubts - June 28, 2010

Child molestation - sufficiency of evidence
People v. Tompkins (E047842, 4th Dist., 6/23/10) Cal.App.4th
    Separate evidence as to each count is not required to satisfy corpus delicti rule and admit defendant's statements. Agrees with People v. Culton (1992) 11 Cal.App.4th 363, 365. Generic and somewhat inconsistent testimony regarding multiple molestations only went to weight of evidence, not admissibility. Conviction for violating Penal Code section 311.4(c) (filming sexual conduct) does not require that defendant personally do the filming.

Child molestation - no actual touching
People v. Lopez (E048027, 4th Dist., 6/23/10) Cal.App.4th
    Defendant's act of playing game with victims where they were directed to put on certain clothing supported convictions for commission of lewd act under Penal Code section 288(a). Follows People v. Austin (1980) 111 Cal.App.3d 110 (def directed victim to remove her pants). "This act of changing clothing was sexually motivated by defendant's lascivious desire to observe and take pictures of the girls in provocative clothing while they played the money game."

Conduct credits - for certain offenses
In re Maes (C062967, 3d Dist., 6/22/10) Cal.App.4th
    Penal Code section 2933.2(a), which prohibits prisoners convicted of murder from receiving postsentence conduct credit, applies to bar defendant convicted of murder from receiving such credit against consecutive determinate term imposed for separate non-homicide offense.

Discovery - charging for discovery costs
Schaffer v. Superior Court (People) (B217743, 2d Dist., 6/23/10) Cal.App.4th
    People comply with Penal Code section 1054.1 by affording defendant's counsel opportunity to examine, inspect, or copy discoverable items. Non-indigent defendant may receive copies at his own expense.

Drugs - brought into custodial setting
People v. Low (S151961, CA S.Ct., 6/24/10) Cal.4th
    In companion case to People v. Gastello, Court holds that defendant who is arrested and brought into custodial setting against his will may be prosecuted for violating Penal Code section 4573. "While such entry was compulsory, the act of bringing drugs inside was not. The arresting officer gave advance warning about the prohibitions in section 4573, and defendant violated its terms despite ample opportunity to avoid doing so."

Drugs - brought into custodial setting
People v. Gastello (S153170, CA S.Ct., 6/24/10) Cal.4th
    When arrestee brings drugs on his person to a custodial setting, he violates Penal Code section 4573, and there is no violaton of right not to incriminate himself. "Any difficulty defendant faced in making this choice was largely of his own making. He committed a nontestimonial act for which he was not immune from prosecution or conviction under section 4573."

Enhancements - crime against developmentally disabled person
People v. Morris (C060358, 3d Dist., 6/22/10) Cal.App.4th
    Evidence insufficient to prove defendant knew or should have known that victim, who suffers from schizophrenia, was "developmentally disabled" within meaning of Penal Code section 667.9(a).

Fees - Government Code section 70353 court facilities fee
People v. Davis (B216348, 2d Dist., 6/18/10) Cal.App.4th
    Government Code section 70353 $30-$35 court facilities fee does not apply to convictions rendered before January 1, 2009. But fee may be imposed if crime committed before the date, but sentence imposed after.

Fraud - honest services wire fraud
Black et al v. United States (08-876, U.S. S.Ct., 6/24/10) U.S.
    Following Skillings v. United States (decided on the same day), Court holds that honest services component of fraud statute criminalizes only schemes to defraud that involve bribes or kickbacks.

Fraud - honest services wire fraud
Skilling v. United States (08-1394, U.S. S. Ct., 6/24/10) U.S.
    Statute proscribing fraudulent deprivations of "the intangible right of honest services," is properly construed to cover only bribery and kickback schemes. Enron chief's conduct involved neither. Conviction overturned and matter remanded. Court construes section 1346, but does not completely invalidate it.

Funds in capital cases - definition of capital case
Gardner v. Superior Court (County of Contra Costa) (A125861, 1st Dist., 6/18/10) Cal.App.4th
    "Capital case" as used in Penal Code section 987.9 (entitling accused to investigation and expert funds) means one where defendant faces possibility of death penalty, where defendant "actually risks death." (Sand v. Superior Court (1983) 34 Cal.3d 567, 571. "So, unless the district attorney makes an announcement to the contrary, a defendant charged with murder with special circumstances is exposed to that punishment, and a section 987.9 request must be heard on the merits."

Priors - stalking as act of domestic violence admissible to prove propensity
People v. Ogle (B214086, 2d Dist., 6/22/10) Cal.App.4th
    Stalking is an act of domestic violence and therefore admissible as prior offense to show propensity under Evidence Code section 1109.

Reckless evading - no unanimity on act required
People v. Datt (H033079, 6th Dist., 6/17/10) Cal.App.4th
    Trial court did not err in instructing the jury that it need not unanimously agree on which Vehicle Code violations supported the "willful or wanton" element of the evading count. See People v. Mitchell (1986) 188 Cal.App.3d 216.

Restitution - counseling costs
People v. Garcia (E048416, 4th Dist., 6/23/10) Cal.App.4th
    No error to order restitution for rape victim's counseling costs, and for money paid to therapist for appearing at restitution hearing pursuant to defendant's subpoena. No error in excluding testimony by therapist regarding contentn of discussions with victim. Victim did not waive psychotherapist-patient privilege by requesting restitution. Distinguishes In re Lifschutz (1970) 2 Cal.3d 415, where plaintiff was held to have waived privilege by instituting civil suit.

Search & seizure - citizen's arrest
People v. Bloom (E048326, 4th Dist, 6/25/10) Cal.App.4th
    Harassing phone calls to 911 dispatcher occurred in dispatcher's presence, and there was no need for dispatcher to go to defendant's location to "participate" in arrest. "Presence" language in Penal Code section 837 requires offense be in citizen's presence, not arrest.
The decision does not discuss fact that even a violation of citizen's arrest law would not require suppression, since it is not federal constitutional requirement.

Sentencing - retroactive application of conduct credits
People v. Eusebio (B216149, 2d Dist., 6/18/10) Cal.App.4th
    Penal Code section 4019, which grants additional conduct credits, is not retroactive. Note: the issue is before the California Supreme Court, so this ruling is meaningless.

Sex offenses - rape shield law
People v. Fontana (S170528, CA S.Ct., 6/21/10) Cal.4th
    Trial court erred in denying defendant's motion to introduce evidence of complaining witness' sexual conduct as an exception to Evidence Code section 1103(c)(1) without holding a hearing, but error harmless. Excluding evidence of possible consensual sexual conduct with another man earlier in the day was not abuses of discretion.

Terrorism - providing material support
Holder v. Humanitarian Law Project (08-1498, U.S. S.Ct., 6/21/10) U.S.
    18 U. S. C. §2339B, the material support statute, is constitutional as applied to particular forms of support that plaintiffs seek to provide to foreign terrorist organizations. It is not vague, it provides sufficient notice of prohibited conduct, and does not violate freedom of speech or association. Roberts, Stevens, Scalia, Kennedy, Thomas and Alito in majority. Breyer, Ginsburg and Sotomayor dissent.