Child molestation - meaning of 10 years and under
People v. Cornett (A123957, First Dist., 12/6/10) Cal.App.4th
Child who was 10 years and 11 months at time of offense was not "child ... 10 years of age or under" within meaning of Penal Code section 288.7(b). Extensive discussion of cases from other jurisdictions.
Fees - failure to hold hearing on ability to reimburse county for counsel fees
People v. Polk (A117633, First Dist., 12/13/10) Cal.App.4th
County's lien against defendant's house did not obviate need for trial court to make findings that she had ability to pay for counsel costs, as required by Penal Code section 987.8(b).
Homicide - provocative act
People v. Gonzalez (D055698, Fourth Dist., 12/9/10) Cal.App.4th
Sufficient evidence to support murder and attempted murder conviction on provocative act theory when co-defendant shot by victim with gun provided to co-defendant by defendant (which she had brought to attack the victim). Provocative act doctrine applies when perpetrator of underlying crime instigates gun battle, and victim (or police) respond with privileged lethal force, killing perpetrator's accomplice. (People v. Cervantez (2001) 26 Cal.4th 860.)
Insanity - medication order unsupported by substantial evidence
People v. Christiana (E048681, Fourth Dist., 12/10/10) Cal.App.4th
Trial court's authorization to involuntarily administer antipsychotic medication to him was not supported by substantial evidence. Sell v. United States (2003) 539 U.S. 166. Evidence insufficient to support second Sell factor: that involuntarily medicating defendant was both substantially likely to render defendant competent to stand trial and substantially unlikely to have side effects that would interfere significantly with ability to assist counse. (Sell, supra, 539 U.S. at p. 181.)
Restitution - effect of civil settlement
People v. Vasquez (B218802, Second Dist., 12/13/10) Cal.App.4th
Because a restitution order does not fully replicate a civil judgment, settlement of a civil action and release of the defendant by the crime victim does not discharge the defendant's responsibility to satisfy the restitution order. Here, the civil settlement covered amounts incurred up to the time of the settlement, but the restitution order covered future expenses and pain and suffering.
Sentencing - consecutive
People v. Atencio (C063710, Third Dist., 12/1/10) Cal.App.4th
One physical act (possession of gun) may constitute two criminal "acts" (theft of firearm and possession by felon) thus permitting consecutive sentencing under Penal Code section 654.)
Sentencing - judicial plea bargaining
People v. Labora (E050692, Fourth Dist., 12/8/10) Cal.App.4th
DA appeal from guilty plea and sentence on grounds that judge engaged in judicial plea bargaining. Court agrees and remands to give defendant opportunity to withdraw guilty plea. Because defendant was charged with one serious felony, the court was precluded from engaging in plea bargaining (Pen. Code sec. 1192.7), and therefore People had right to appeal. Because the court specified the punishment it would impose, the action constituted bargaining.
12/14/2010
