Certificate of rehabilitation - discretionary
People v. Blocker (A126229, First Dist., 11/23/10) Cal.App.4th
Trial court does not abuse discretion by denying certificate of rehabilitation to otherwise-qualified candidate who maintains his innocence.
Death penalty - issues
People v. Foster (S058025, 11/18/10) Cal.4th
Issues: use of physical restraints (stun belt and leg restraints) forfeited by failure to object, and no evidence they were visible to jury. Voir dire of prospective jurors not inadequate, and forfeited anyway by failure to object. Admission of evidence of prior crimes proper to prove identity, common plan and intent. Cross-examination of defendant regarding prior crimes proper because by denying guilt, defendant placed at issue his identity. Third party contacts with jurors harmless, and unrelated to case. Trespass not lesser included offense of burglary, only lesser related offense. Jury properly instructed on burden of proof with respect to identity. Jury instructions concerning prior crimes were sufficient to properly inform jury that it had to find the priors true by a preponderance, but offenses had to be found true beyond reasonable doubt, and if jury relied on priors to prove essential fact, it had to find prior true BRD. Evidence was sufficient to support convictions. No prosecutorial misconduct. Penalty phase arguments rejected. Full affirmance.
Drunk driving - great bodily injury enhancement
People v. Poroj (E048123, Fourth Dist., 11/18/10) Cal.App.4th
Penal Code section 12022.7(a) (great bodily injury enhancement) does not require a showing of intent to inflict great bodily injury that is separate from intent to commit the crime itself.
Eavesdropping - by police - dismissal not mandated
People v. Shrier (B218424, Second Dist., 11/23/10) Cal.App.4th
Appellate court reverses magistrate's dismissal of criminal charges as penalty for intentional eavesdropping of confidential attorney-client conversations by law enforcement. Remedy of suppression and/or other sanctions to be imposed by the trial court is sufficient, because prosecutor was not involved, distinguishing Morrow v. Superior Court (1994) 30 Cal.App.4th 1252. Privilege existed even though co-defendants' counsel were present, since there was in place a joint defense agreement. Court criticizes Dept of Justice personnel who did the eavesdropping.
Evidence - DNA on discarded cigarett butt
People v. Gallego (C061749, Third Dist., 11/22/10) Cal.App.4th
Cigarette butt that defendant discarded by throwing it on public sidewalk, collected and DNA-tested by police, did not constitute a search. Distinguishes intrusion cases of Arizona v. Hicks (1987) 480 U.S. 321 and Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602.
Evidence - newly discovered evidence required new trial
People v. Soojian (F058589, Fifth Dist., 11/24/10) Cal.App.4th
Admitting that "it is unusual for an appellate court to conclude that newly discovered evidence entitles a defendant to a new trial as a matter of law," court concludes that newly discovered evidence raised significant issues as to verdict's correctness.
Gangs - enhancements
People v. Carr (B219279, Second Dist., 11/23/10) Cal.App.4th
Penal Code section 190.2(a)(22) special circumstance requires proof that defendant had knowledge of gang's criminal purpose (People v. Castenada (2000) 23 Cal.4th 743) and that the murder was carried out to further the gang's criminal activities. Evidence sufficient for special circumstance and also for gang enhancements.
Prosecutorial misconduct - cured by court
People v. Carr (B219279, Second Dist., 11/23/10) Cal.App.4th
Prosecutor probably committed error under Griffin v. California (1965) 380 U.S. 609 by commenting on defendant's failure to call an alibi witness, but court cured error by admonishing jury to ignore her statement.
Search & seizure - opening dryer door during search
People v. Smith (B219915, Second Dist., 11/29/10) Cal.App.4th
Opening dryer door during search for a person was reasonable. Def placed something in the dryer which made a metallic sound, and officer could smell fresh marijuana, as well as see a box filled with cash and individual plastic baggies. Officer claimed he opened the door to stop the dryer because of the noise.
11/30/2010
