Reasonable Doubts - Nov 19, 2010

Appeals - of probationary orders that were final
In re Shaun R. (H035112, Sixth Dist., 9/29/10) Cal.App.4th
    The phrase "all previous Orders of the Court ... remain in full force" does not operate to revive a previous order that had become final and was therefore nonappealable. "It does not turn an otherwise nonappealable order into an appealable order."

Appeals - appeal following summary denial of writ petition
People v. Jahansson (H034446, Sixth Dist., 9/30/10) Cal.App.4th
    People could appeal grant of suppression motion after previous writ petition was summarily denied. Disagrees with People v. Carrington (1974) 40 Cal.App.3d 647 (DA had to elect between writ review and appeal), and agrees with People v. Allison (1988) 202 Cal.App.3d 1084. Summary denial is not a "decision" within meaning of Penal Code section 1538.5(j).

Child molestation - no specific child
People v. Phillips (B221932, Second Dist., 10/5/10) Cal.App.4th
    Evidence supported conviction for violating Penal Code section 647.6(a)(1) (annoying or molesting a child) even though there was no evidence masturbation was directed at a specific child. Defendant was masturbating in his car, parked in front of a school. He was seen by a girl who walked by his car.

Confessions - midstream Miranda
People v. Camino (G041887, Fourth Dist., 10/4/10) Cal.App.4th
    Substantial evidence supported trial court's ruling that police did not use a deliberate two-step strategy to violate Miranda. See Oregon v. Elstad (1985) 470 U.S. 298; Missouri v. Seibert (2004) 542 U.S. 600.

Credits - retroactive application of Penal Code section 4019
People v. Rasmussen (A125942, First Dist., 11/9/10) Cal.App.4th
    Penal Code section 4019 amendment that increases conduct credits against sentence is properly applied retroactively. Court notes that Supreme Court has granted review on several cases raising this issue.

Death penalty - issues
People v. Russell (S075875, 11/15/10, CA S.Ct.) Cal.4th
    Issues: lying-in-wait theory of murder; denial of jury view; interference with deliberations and jury coercion; consciousness of guilt instruction; unanimity instruction on theory of murder; denial of admission of defendant's statements (by defendant); excusal of jurors; victim impact evidence; uncharged acts; double-counting specials as aggravators; circumstances of crime as aggravator; penalty phase instructional challenges.
Full affirmance.

Discovery - of CI identity
Davis v. Superior Court (B216345, Second Dist., 7/22/10) Cal.App.4th
    Disclosure of confidential informant is not mandatory even when informant was percipient witness but court had duty to hold in camera hearing to determine if CI can given exculpatory evidence. "[T]he balance between the public interest in protecting the flow of information to law enforcement officers and Davis's right to prepare his defense is struck by having an in camera hearing prior to any disclosure."

Drugs - transportation of medical marijuana
People v. Wayman (G042582, Fourth Dist., 10/15/10) Cal.App.4th
    Jury properly instructed on transportation of medical marijuana when it was told that defendant must be a qualified user under the CUA (Compassionate Use Act), and the circumstances of his transportation had to demonstrate he was transporting the marijuana for his own medical use, and that the quantity transported and the method, timing, and distance of the transportation had to be reasonably related to defendant's current medical needs. (CALCRIM 2361.)

Drunk driving - admission of refusal to take PAS test
People v. Jackson (A128782, First Dist., 11/12/10) Cal.App.4th
    Trial court erred in admitting evidence that defendant refused to take a preliminary alcohol screening (PAS) test. The statute itself provides that the test is voluntary and police are required to so inform a detained driver. However, because the jury was told the defendant had a right to refuse, and evidence of guilt was substantial, error was harmless.

Fees - court facilities fee
People v. Cortez (G042891, Fourth Dist., 11/10/10) Cal.App.4th
    Court facilities fee under Government Code section 70373 properly imposed on each of six convictions. Because they are not criminal penalties, ex post facto prohibition is not violated.

Fleeing scene of accident - GBI enhancement
People v. Valdez (G042837, Fourth Dist., 10/12/10) Cal.App.4th
    In prosecution for fleeing scene of injury accident (Veh. Code sec. 20001(a)), conviction may not be enhanced with great bodily injury enhancement (Pen. Code sec. 12022.7(a)) when injuries suffered in accident were not aggravated by defendant's failure to stop and render assistance because defendant was not committing the felony at the time of the accident that caused the injury.

Gangs - jury instruction error
People v. Aranda (D055701, Fourth Dist., 10/6/10) Cal.App.4th
    Trial court's failure to include reference to DA's burden of proof (beyond reasonable doubt) in "active participation in street gang) charge was prejudicial.

Habeas corpus - federal - remand after grant on non-federal grounds
Wilson v. Corcoran (US S.Ct., 10-91, 11/8/10) U.S.
    Seventh Circuit granted habeas relief to state prisoner without finding federal law violation. Matter remanded in per curiam opinion. The appeals court had required the state trial court to reconsider its sentencing determination to "prevent non-compliance with Indiana law."

Hearsay - Victim's 911 call
People v. Johnson (A124362, First Dist., 11/5/10) Cal.App.4th
    Victim's 911 call reporting that her husband shot at her properly admitted at trial under hearsay spontaneous exception of Evidence Code section 1240 when victim failed to appear. No violation of Sixth Amendment confrontation clause as interpreted by Crawford v. Washington (2004) 541 U.S. 36 and Davis v. Washington (2006) 547 U.S. 813 because statement was nontestimonial. Follows People v. Cage (2007) 40 Cal.4th 965; People v. Romero (2008) 44 Cal.4th 386.

Homicide - vicarious liability for shooting when co-defendant killed by another
People v. Camino (G041887, Fourth Dist., 10/4/10) Cal.App.4th
    Insufficient evidence to support finding defendant vicariously discharged a gun (Pen. Code sec. 12022.53(e)(1)) because the lone shooter (and only armed person in defendant's group), who was shot by an unknown person, could not be a principal in his own murder. (People v.  Antick (1975) 15 Cal.3d 79, 91.)

Homicide - failing to instruct on heat-of-passion voluntary manslaughter
People v. Ramirez (B218413, Second Dist., 11/12/10) Cal.App.4th
    Trial court erred prejudicially by failing to instruct jury on voluntary manslaughter on a heat of passion theory that defendant shot victim after victim provoked him by punching him. Even in absence of request, trial court must instruct on general principles of law relevant to issues raised by the evidence. Obligation includes giving lesser included offenses instructions. Voluntary manslaughter based on "sudden quarrel or heat of passion" is lesser and necessarily included offense of intentional murder. (People v.  Breverman (1998) 19 Cal.4th 142, 153-155.)

Juveniles - probation condition that minor not approach courthouses
In re E.O. (H035462, Sixth Dist., 9/29/10) Cal.App.4th
    Santa Clara County Judge Patrick Tondreau's probation condition that minor, made a ward for possession of a knife on school grounds, not approach or enter courthouses where gang-related cases were being tried is constitutionally overbroad. Justice Rushing takes Judge Tondreau to task for also making the condition difficult to understand, using an online readability tester, which ranked the wording at a 28.68 year grade level.

Leaving scene - special enhancement instruction
People v. Nordberg (B218891, Second Dist., 11/8/10) Cal.App.4th
    Jury should have been instructed that defendant had to have knowledge that accident resulted in injury or was of such nature that one would reasonably anticipate it resulted in injury when defendant was charged with violating Vehicle Code section 20001(c). Error harmless because defendant's own testimony established that she knew knew the accident was of such a nature that it was probable another person had been injured.

Misconduct - prosecutorial - "Golden Rule" closing argument improper - conviction reversed
People v. Vance (A122777, First Dist., 9/29/10) Cal.App.4th
    "There is a tactic of advocacy, universally condemned across the nation, commonly known as "The Golden Rule" argument. In its criminal variation, a prosecutor invites the jury to put itself in the victim's position and imagine what the victim experienced. This is misconduct, because it is a blatant appeal to the jury's natural sympathy for the victim. (See People v. Lopez (2008) 42 Cal.4th 960, 969-970 and decisions cited.)"
Nevertheless, Alameda County DA Ynostrosa made a sustained "Golden Rule" closing argument and disregarded the court's rulings sustaining defense counsel's objections. "Unfortunately, the possible prejudicial effect of the improper comments by the prosecutor was exacerbated by the trial court's passive reaction to them." [Alameda Superior Court Judge Roy Hashimoto].
"The judgment of conviction is reversed. Pursuant to Business and Professions Code section 6086.7, subdivision (a)(2), a copy of this opinion will be sent to the State Bar for such disciplinary action, if any, it may deem appropriate." Finally!

Rape - of intoxicated and unconscious woman
People v. Smith (C061805, Third Dist., 11/8/10) Cal.App.4th
    Trial court's instructions on rape of intoxicated woman (CALCRIM 1002) is not incomplete or misleading. It states that a woman must be "so intoxicated that she cannot give legal consent" and defines "reasonable judgment" as being "able to understand and weigh the physical nature of the act, its moral character, and probable consequences." Instruction on rape of unconscious woman (CALCRIM 1003) correctly states that "A woman is unconscious of the nature of the act if she is unconscious or asleep or not aware that the act is occurring." The evidence supported the charge.

Resisting - resisting executive officer by actual resistance is general intent crime
People v. Rasmussen (A125942, First Dist., 11/9/10) Cal.App.4th
    Penal Code section 69 (resisting executive officer by actual resistance) is a general intent crime, and jury was properly instructed. There are two ways section 69 can be violated, and here DA proceeded on the second manner, actual resistance.

Restitution - to RIAA for piracy
People v. Kelly (E048797, Fourth Dist., 10/12/10) Cal.App.4th
    Recording Industry of America (RIAA) could not obtain restitution for piracy from criminal defendants because it was not a direct victim of their crimes.

Restitution - victim's estate
People v. Runyan (B218863, Second Dist., 9/24/10) Cal.App.4th
    Restitution to victim's estate was proper. The estate only existed because of defendant's killing of victim.

Search & seizure - mother's consent to search of minor son's room
In re D.C. (A127228, First Dist., 9/24/10) Cal.App.4th
    Mother of minor had authority to consent to search of minor's room and to override any objection he raised to search. Compare Georgia v. Randolph (2006) 547 U.S. 103 (search of adult son's room).

Search & seizure - prolonged detention
People v. Jahansson (H034446, Sixth Dist., 9/30/10) Cal.App.4th
    Following People v. Glaser (1995) 11 Cal.4th 354, court holds that defendant's initial detention outside premises to be searched was lawful incident to the probation search of the premises, but continued detention in handcuffs was not reasonable under the Fourth Amendment. (People v. Stier (2008) 168 Cal.App.4th 21.

Sentencing - street terrorism sentence had to be stayed
People v. Duarte (G041195, Fourth Dist., 6/2/10) Cal.App.4th
    Trial court should have stayed sentence on street terrorism count under Penal Code section 654 because defendant had same intent and objective in count of discharging firearm with gross negligence. Follows People v. Sanchez (2009) 179 Cal.App.4th 1297.

Sentencing - gang-related enhancements
People v. Yang (C062816, Third Dist., 10/13/10) Cal.App.4th
    Enhancement for firearm discharge by co-principal causing death in gang-committed felony (pcs 12022.53(d) & (e)(1)) does not apply when defendant was not convicted of one of the qualifying offenses enumerated in the statute. Judgment modified to strike 25-life enhancement and 10-year enhancement for gang-committed violent felony, previously imposed but stayed, is imposed instead.

Sex offender registration - after defendant acquitted of sex offenses
People v. Mosley (G038379, Fourth Dist., 9/29/10) Cal.App.4th
    The restriction forbidding registered sex offenders from living within 2,000 feet of a school or park where chidren gather constitutes punishment and therefore the facts supporting sex offender registration must be found by a jury beyond a reasonable doubt under Apprendi v. New Jersey (2000) 530 U.S. 466. Here the jury acquitted the defendant  of any sexual offense and only found him guilty of misdemeanor assault. Nevertheless Orange County Superior Court Judge David A. Hotter imposed a sex registration requirement. Distinguishes In re E.J. (2010) 47 Cal.4th 1258 (imposition of residency restriction as parole condition).

Sexual battery - touching breast
People v. Smith (C061805, Third Dist., 11/8/10) Cal.App.4th
    Defendant committed crime of sexual battery (touching intimate part against the will of the person being touched, for purpose of sexual arousal, sexual gratification, or sexual abuse; Penal Code section 243.4(e)(1)) when he touched breast of woman too intoxicated to resist.

Speedy trial - Penal Code section 1382
People v. Hajjah (S175307, CA S.Ct., 11/4/10) Cal.4th
    Trial court correctly determined that courtroom 76 miles away was not "available" at 4:15 pm on last day to bring defendant to trial. Nor did the physical remoteness of the courtroom constitute "good cause" under Penal Code section 1382 to delay defendant's trial. As in People v. Engram (Oct. 25, 2010, S176983) __ Cal.App.4th __, "the lack of any judge or courtroom available to bring this case to trial within the statutory period resulted from chronic court congestion attributable to the state, the trial court properly concluded that good cause did not exist under section 1382 to delay defendant's trial." Dismissal upheld.

Torture - no ineffective assistance in failing to request cultural defense jury instruction
People v. Assad (C059777, Third Dist., 10/15/10) Cal.App.4th
    Trial counsel was not ineffective in failing to request jury instruction that would have directed jury to consider whether evidence of defendant's cultural background (Syrian) raised reasonable doubt whether he had requisite intent to inflict torture and aggravated mayhem on his son when he physically disciplined him.

Weapons - possession of firearm after discharge from psych facility
People v. Jason K. (D055765, Fourth Dist., 10/7/10) Cal.App.4th
    Trial court did not abuse discretion in holding that DA met burden of showing by preponderance of evidence that petitioner would not be likely to use firearms in safe and lawful manner under Welfare & Institutions Code section 8103(f)(6), and denying petitioner the right to possess firearms for five years after release from facility where he was detained for psychiatric evaluation under Welfare & Institutions Code section 5150. He had checked himself in a few months before and the triggering incident involved a loaded gun and his two-year old child was in the next room. Court considered effect of McDonald v. City of Chicago (2010) 130 S.Ct. 3020 (Second Amendment right to possess firearms) on the question of the burden of proof, but petitioner did not challenge constitutionality of section 8103.

Weapons - interpretation of 18 U.S.C. sec. 924(c)
Abbott v. United States (09-479, U.S. Supreme Court, 11/15/10) U.S.
    Defendant is subject to highest mandatory minimum sentence specified for conduct in 18 U.S.C. sec 924(c) unless another provision of law directed to such conduct imposes a greater minimum.