Tuesday, April 24, 2012

New Stuff

1. In re Tom (2012) Cal.App.4th , reported on March 21, 2012, in 2012 Los Angeles Daily Journal 3595, the First Appellate District, Division3 held that where the defendant was held for approximately an hour after being involved in fatal vehicle collision, was denied permission to leave the scene, and then placed in the rear of a patrol car for another 20 minutes before being transported from the accident scene to the police station for further investigation, those restraints were “tantamount to a formal arrest,” triggering his right to Miranda warnings. (See Berkemer v. McCarty (1984 468 U.S. 420, 423-426, 440-442.) Where the defendant was not given the required Miranda warnings, and prosecution elicited police testimony that, subsequent to his arrest, defendant never inquired about the welfare of the occupants of the other vehicle, the use of this evidence of defendant’s post-arrest, pre-Miranda silence as substantive evidence of defendant’s guilt violated his Fifth Amendment right against self-incrimination. (See Doyle v. Ohio (1976) 426 U.S. 610, 617-619; see also Jenkins v. Anderson (1980) 447 U.S. 231, 233-238; United States v. Velarde-Gomez (9th Cir. 269 F.3d 1023, 1028-1029.) Where emotionally charged case hinged on competing theories of accident reconstruction yielding widely different estimates of defendant’s speed at the point of impact, the prosecutor’s argument urging the jury to consider the defendant’s failure to ask about the welfare of the occupants of the other vehicle as substantive evidence of his guilt was highly prejudicial, as a result the erroneous admission of such evidence was not harmless beyond a reasonable doubt. (People v. Neal (2003) 31 Cal.4th 63, 86.) CALCRIM 592, defining gross vehicular manslaughter, does not eliminate the requirement that the prosecution prove the predicate offense of reckless driving.

2. Lafler v. Cooper (2012) U.S. , reported on March 22, 2012, in 2012 Los Angeles Daily Journal 3726, the United States Supreme Court held, in a 5-4 opinion, that where counsel’s ineffective advice led to the defendant rejecting a negotiated disposition (plea), and where the prejudice alleged is having to stand trial, the defendant must show that, but for the ineffective advice, there is a reasonable probability that: (1) the plea offer would have been presented to the court, (2) that the court would have accepted its terms, and (3) that the conviction or sentence or both under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. The High court reversed the ruling of the state appeals court that a defendant who receives a fair trial cannot claim ineffective assistance of counsel based on advice to reject plea offer. The correct remedy for counsel’s ineffective assistance in the plea deal, is to order the state to reoffer the negotiated disposition so that if defendant accepts, trial court may exercise its discretion according to the applicable rules of the jurisdiction. 

3. Missouri v. Frye (2012) U.S. , reported on March 22, 2012, in 2012 Los Angeles Daily Journal 3713, the United States Supreme Court, in another 5-4 opinion, with its companion case Lafler v. Cooper decided the same day, held that plea bargaining is a critical stage of a criminal proceeding, and if trial counsel taints the proceeding by failing to communicate an offer from the prosecution, the taint cannot subsequently be removed by providing the defendant a fair trial or an opportunity to enter a plea on less favorable terms. Counsel’s failure to communicate a formal, written plea offer, as a result of which the offer lapsed and the defendant lost the opportunity to accept it, constituted ineffective assistance of trial counsel. In order to show prejudice where a plea offer has lapsed or has been rejected because of counsel’s deficient performance, the defendant must demonstrate a reasonable probability both that he would have accepted the more favorable plea offer had he been afforded effective assistance of counsel and that the plea would have been entered without the prosecution’s canceling it or the trial court’s refusing to accept it, if it had the authority to exercise that discretion under state law. 

4. People v. Garcia (2012) Cal.App.4th , reported on March 22, 2012, in 2012 Los Angeles Daily Journal 3700, the Fourth Appellate District, Division 3 held that the defendant’s conviction must be reversed where the trial court excused a juror and seated an alternate, but remaining jurors announced that they had reached a verdict before the 12th juror was excused. The error was that the trial court allowed the remaining 11 jurors to deliver a sealed verdict, which was subsequently unsealed and affirmed in a poll only of the 11 jurors, (see People v. Thaugott (2010) 184 Cal.App.4th 492, 500-501 [the jurors must appear in court and affirm their verdict]) and then affirmed by the 12th juror in court 11 days later. As a result of the 12th juror failing to affirm the verdict, the defendant was deprived of his state constitutional right to a unanimous verdict of a 12-member jury. (Ibid.) Once the court loses control over the jurors, it is without jurisdiction to call them together again. (People v. Bonillas (1989) 48 Cal.3d 757, 771.) The court may accept a partial verdict of all 12 jurors, who can affirm the verdicts, and the verdicts can be recorded pursuant to section 1164, and then the juror can be excused and replaced by an alternate. (See People v. Fudge (1994) 7 Cal.4th 1075- 1100-1101.) 

5. People v. Maharaj (2012) Cal.App.4th , reported on March 26, 2012, in 2012 Los Angeles Daily Journal 3837, the Third Appellate District held that where the defendant was convicted of 3 counts within section 269 (aggravated sexual assault on a minor), and section 288, subdivision (b), and each of the offenses are within section 667.6, subdivision (e), and therefore requiring mandatory consecutive sentences for each of the 4 forcible sex offenses. (See § 667.6, subds. (c) and (d) requiring full term, consecutive sentences.) Section 667.6, subdivision (c) mandates that violent sex offenses listed in section 667.6, subdivision (e), when committed against the same victim on separate occasions, be subject to full-term consecutive sentences just as when such offenses are committed against multiple victims. 

6. People v. Romero (2012) Cal.App.4th , reported on March 28, 2012, in 2012 Los Angeles Daily Journal 3935, the Third Appellate District held that the defendant, who alleged a violation of his Sixth Amendment right to a grand jury drawn from a representative sample of the population, failed to make a prima facie showing of systematic exclusion of Hispanics and Asian-Americans in the jury selection process. Furthermore, he failed to identify any aspect of the jury selection process that resulted in systematic exclusion of Hispanics and Asian-Americans from grand juries. The jury commissioner testified that she made efforts to reach out to organizations representing minority groups and that she reached out to those with ethnic-sounding names. Additionally, the nomination of grand jurors by superior court judges did not deprive the defendant of equal protection under Fourteenth Amendment where there was ample evidence in the record of nondiscriminatory motivations and methods of the superior court and its officers. 

7. People v. Wells (2012) Cal.App.4th , reported on March 29, 2012, in 2012 Los Angeles Daily Journal 4034, the Third Appellate District held that the trial court erred in failing to sua sponte instruct the jury pursuant to section 26, which in effect exempts from criminal responsibility persons who committed the act charged “without being conscious thereof.” (See People v. Chaffey (1994) 25 Cal.App.4th 852, 855.) The defendant who was charged with DUI with injury and related offenses was entitled to a sua sponte instruction under section 26, where there was evidence supporting his theory that he could not be found guilty because the reason he crossed double yellow lines and collided with the victims’ vehicle was due to his low blood sugar, causing him to pass out, and not to being under the influence. (People v. Cole (1988) 202 Cal.App.3d 1439, 1446 [a defendant is entitled to an instruction on the defense theory where it is obvious that he is relying on that defense or if there is substantial evidence to support it.]) The trial court erred in instructing with CALCRIM 2100–the last sentence of which reads: “If the defendant was under the influence of a drug, then it is not a defense that something else also impaired his ability to drive a vehicle.” That wording might have misled jury into believing that unconsciousness is not a defense to the violation of law or failure of duty element of DUI with injury. The combined impact of instructional errors was prejudicial under either Chapman or Watson. 

8. People v. Tuck (2012) Cal.App.4th , reported on March 29, 2012, in 2012 Los Angeles Daily Journal 3995, the First Appellate District, Division 3 held that the trial court does not have discretion under section 1385 to grant a dismissal in the interests of justice to relieve a defendant of the duty to register as a sex offender. The mandatory requirement that the defendant register as a sex offender because of a conviction for section 288, subdivision (a), does not violate the constitutional guarantee of equal protection. (People v. Hofsheier (2006) 37 Cal.4th 1185 [consensual oral cop].) A defendant convicted of lewd conduct on a minor under 14, are not similarly situated with persons convicted of sex offenses under other statutes that do not require the minor victim to be so young. However, the defendant can apply for a certificate of rehabilitation to relieve himself of the registration requirement. 

9. People v. Hale (2012) Cal.App.4th , reported on March 30, 2012, in 2012 Los Angeles Daily Journal 4132, the First Appellate District, Division 3 held that when a defendant is charged with a violation of section 269 (aggravated sexual assault of a child under the age of 14 and more than 10 years younger than defendant), the prosecution may be commenced at any time. A conflict between section 799, which says that prosecution for a crime punishable by life imprisonment may be commenced at any time, and section 801.1, which applies a 10-year limitations period to crimes for which sex offender registration is required, is resolved under section 803.6, subdivision (a) by applying the longest applicable period. Additionally, the force used to commit forcible sodomy, a violation of former section 286, subdivision (c)(2), need not be greater than or different from the force used to engage in the act of sodomy. The prosecution was merely required to prove that the act of sodomy was accomplished by enough physical force to overcome victim’s will. (See People v. Griffin (2004) 33 Cal.4th 1015, 1026-1028; People v. Guido (2005) 125 Cal.App.4th 566, 576.) 

10. People v. Superior Court (Chapman) Cal.App.4th , reported on April 2, 2012, in 2012 Los Angeles Daily Journal 4205, the Second Appellate District, Division 8 held that the trial court erred in granting the defendant’s motion to suppress evidence, based on the facts of this case, where the officer’s were permitted to reenter the premises to seize evidence observed in plain view (Coolidge v. New Hampshire (1971) 403 U.S. 443, 465 [lawful entry based on exigency or consent permits seizure of items observed in plain view]), during the first entry for a protective sweep. The officers responded to the defendant’s home in response to a call that shots had been fired inside the house. The defendant was ordered out, and he came out with his girlfriend. The defendant was handcuffed and a patdown revealed a loaded handgun. The defendant told the officers to help him, referring to his son, inside of the house. The court found that consent to enter may be express or implied. (People v. Frye (1998) 18 Cal.4th 894, 990.) An officer is permitted to reenter to seize evidence observed in plain view during a lawful entry but not initially seized because an officer was doing a duty that took priority over the seizure of evidence. (People v. McDowell (1988) 46 Cal.3d 551, 564; see also People v. Justin (1983) 140 Cal.App.3d 729, 740.) Exigent circumstances justified the warrantless entry by second wave responders a few minutes later. 

11. People v. Self (2012) Cal.App.4th , reported on April 5, 2012, in 2012 Los Angeles Daily Journal 4338, the Fourth Appellate District, Division 1 held that the trial court erred in finding that an Arizona prior qualified as a prior DUI as all elements of the Arizona prior did not contain the same elements (see People v. Crane (2006) 142 Cal.App.4th 425), was not the categorically equivalent to a California DUI conviction where the level of impairment required for conviction under the Arizona law was less than that required in California. If the prior conviction was for an offense that can be committed in multiple ways, and the record does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. (See People v. Delgado (2008) 43 Cal.4th 1059, 1066.) The trial court erred in relying on handwritten notations on Arizona judgment form to find that defendant’s conduct in the Arizona case would have supported conviction in California as they are not part of the record of conviction (People v. Crane, supra, 142 Cal.App.4th at p. 434), and thus did not constitute a prior conviction for enhancement purposes. 

12. People v. Finney (2012) Cal.App.4th , reported on April 5, 2012, in 2012 Los Angeles Daily Journal 4331, the Second Appellate District, Division 6 held that the trial court did not err in distinguishing People v. Benson (1998) 18 Cal.4th 24, 35, fn 8, and People v. Burgos (2004) 117 Cal.App.4th 1209, and did not strike a strike from the defendant’s prior convictions and found him to be a “three striker” and sentenced him to a life term. The defendant’s prior involved an attack on the victim with a skateboard, fled in the erroneous belief victim was dead, and then returned 30 minutes later, where he saw the victim was alive and kicked him in the head three times, and as a result was convicted for mayhem and assault constituted two separate strikes. Additionally, the trial court did not abuse its discretion (see People v. Superior Court (Alvarez) 14 Cal.4th 968, 977-978), in denying his Romero motion to strike a strike, where defendant had a history of violent crime and failed attempts at parole and probation, and therefore fell inside and not outside of the Three Strikes Law. (People v. Carmony (2004) 33 Cal.4th 367, 377-378; see also People v. Williams (1998) 17 Cal.4th 148, 161.) 

13. People v. Wright (2012) Cal.App.4th , reported on April 6, 2012, in 2012 Los Angeles Daily Journal 4379, the Second Appellate District, Division 3 held that the trial court did not err in failing to instruct sua sponte on voluntary intoxication causing unconsciousness (CALCRIM 626), nor involuntary intoxication causing unconsciousness (CALCRIM 3426), where there was no substantial evidence to support defendant’s claim that he was poisoned. (See People v. Halvorsen (2007) 42 Cal.4th 379, 417.) There was substantial evidence that the defendant was conscious at the time of the crime. Additionally, the defendant could not claim as a matter of law that he was involuntarily intoxicated by the introduction of an illicit substance into the drug he was ingesting illegally. (People v. Gallego (1990) 52 Cal.3d 115, 183-184.) Where the trial court found a prima facie showing had been made that defense counsel discriminated against Caucasians in exercising peremptory challenges, and defense counsel responded by expressing a bias against women, the trial court properly sustained the prosecution’s objection and accepted the prosecution’s proposed remedy of reseating the juror challenged by the defense. The trial court did not err in having peremptory challenges and Wheeler motion made in open court rather than at sidebar. (People v. Willis (2002) 27 Cal.4th 811, 813 [the court "may" challenge at sidebar, but it is not mandatory].) The matter is within the trial court’s discretion, and any prejudice was cured by the instruction that peremptory challenges were a matter of right and should not be treated as an insult to challenged venire members. (Id., at 821-822.) 

14. People v. Wade (2012) Cal.App.4th , reported on April 11, 2012, in 2012 Los Angeles Daily Journal 4510, the First Appellate District, Division 5 held that section 243, subdivision (f)(5)’s reference to the victim’s need for medical treatment is irrelevant to whether the victim sustained “serious bodily injury” within the meaning of section 243, subdivision (d), as that phrase is defined solely by section 243, subdivision (f)(4). (People v. Longoria (1995) 34 Cal.App.4th 12, 16; see also People v. Burroughs (1984) Cal.3d 824, 831 [serious bodily injury as used in § 243 is essentially equivalent to great bodily injury as used in § 12022.7].) Additionally, the recent amendment to the definition of grand theft, which increases the monetary threshold from $400 to $950, must be applied retroactively to cases not yet final when the amendment took effect. (See People v. Vinson (2011) 193 Cal.App.4th 1190, 1194-1199; accord In re Estrada (1965) 63 Cal.2d 740, 748.) Where the jury was instructed that it could find the defendant guilty of grand theft on either of two theories, that he stole more than $400 or that he took victim’s property from her person, and the evidence was undisputed that the amount of the theft was less than $950, but it was disputed whether the property was taken from victim’s person, retroactivity of the legislative amendment required that the instruction be treated as erroneous. Given the fact that there was no way for appellate court to determine which theory upon which the defendant was convicted, the error required the reduction of conviction to one of petty theft and remand for resentencing. (See People v. Guiton (1993) 4 Cal.4th 1116, 1122; see also People v. Chun (2009) 45 Cal.4th 1172, 1203.) 

15. People v. Kurtenbach (2012) Cal.App.4th , reported on March 13, 2012, in 2012 Los Angeles Daily Journal 4635, the Fourth Appellate District, Division 1 held that where jury found that defendant intended that an arson be committed, and that he acted willfully and maliciously in connection with the arson, any error in failing to give aiding and abetting instructions was necessarily harmless beyond a reasonable doubt. (Cf. People v. Garcia (2001) 25 Cal.4th 744, 761 [an error in failing to instruct on an element, is harmless when the reviewing court can determine beyond a reasonable doubt the jury finding may be based on other instructions].) Injuries to an accomplice are not excluded from the offense of arson causing great bodily injury as it is not specifically excluded by the statute. Pouring gasoline in a structure to fuel an arson is the use of a device designed to accelerate the fire for the purposes of the sentencing enhancement in section 451.1, subdivision (a)(5). (See People v. Andrade (2000) 85 Cal.App.4th 759 [either the use of a Molotov cocktail or breaking a gasoline-filled bottle by throwing it on the floor and then light a match].) Proof that defendant committed arson of his own house and thereby damaged his neighbor’s was sufficient to establish the “malice” element of vandalism of his neighbor’s house. (See In re V.V. (2011) 51 Cal.4th 1020, 1028 ["malice in law" may be presumed or implied from the intentional doing of the act without justification or excuse or mitigating circumstances].) The Fifth Amendment does not protect the defendant against a prosecution for concealing or knowingly failing to disclose an event affecting an insurance benefit, in violation of section 550, subdivision (b)(3), based on the defendant’s concealing, during his insurer’s investigation of a fire at defendant’s house, the fact that defendant planned the fire. The trial court did not err in failing to stay either the arson count or concealing an insurance claim (§ 550, subd. (b)(3), since the two crimes constituted a course of conduct divisible in time, and therefore, the defendant can be punished for both. (People v. Beamon (1973) 8 Cal.3d 625, 639, fn.11.) However, the trial court did err in failing to stay the punishment for vandalism when considering the arson count, since this is an indivisible course of conduct incident to one objective (People v. Perez (1979) 23 Cal.3d 545, 551.) The preclusion of section 654 for multiple victims is not applicable here since the crimes are not both against a person (see People v. Miller (1977) 18 Cal.3d 873, 886), as vandalism is not a crime against a person. 

16. People v. Allexy (2012) Cal.App.4th , reported on April 17, 2012, at 2012 Los Angeles Daily Journal 4747, the Third District held that the trial judge erred by ordering the defendant, who pled guilty to child endangerment, which is an offense for which sex offender registration is discretionary and not mandatory, to register as a sex offender following revocation of probation where no such order was made at sentencing, but the decision was bifurcated if and until the defendant violated probation. The trial court may, however, order registration at time of sentencing but suspend the requirement, thus reserving the right to impose it if probation is subsequently revoked. (See § 290.006.) The trial court’s error in ordering registration following probation revocation did not require reversal, where the judge announced at sentencing that he would order registration if probation were later revoked, and the claim of error was forfeited or the error invited because defense counsel acquiesced to the court’s procedure. 

17. People v. Borg (2012) Cal.App.4th , reported on April 19, 2012, in 2012 Los Angeles Daily Journal 4927, the First Appellate District, Division 1 held that the 2011 amendments to section 4019, that grants custody credits to enumerated classes of prisoners previously denied them, but only with respect to conduct occurring after the operative date of the amendment, does not deprive those classes of prisoners of equal protection. The Court of Appeal found that treating such prisoners differently than other classes of prisoners, who were permitted to earn additional credits for past conduct, had a rational basis in that legislature may have decided that the nature and scope of fiscal emergency required granting additional credits to the specified classes of prisoners previously denied them only after the effective date of the amendment. This case is contrary to the holding in at least Payton v. Superior Court (2012) 202 Cal.App.4th 1187. 

18. People v. Hernandez (2012) Cal.4th , reported on April 20, 2012, in 2012 Los Angeles Daily Journal 4970, the California Supreme Court held that the trial court’s gag order, which precluded defense counsel from discussing with defendant a sealed declaration of a testifying prosecution witness and a transcript of that witness’s plea-agreement proceedings, did not so completely deprive defendant of his right to counsel as to constitute structural error reversible without a showing of prejudice, but gag order did implicate the defendant’s right to counsel in a manner requiring a showing of prejudice before reversal would be required. Trial court’s error in barring defendant’s attorney without justification from discussing with him the existence or contents of a sealed transcript of a witness’s plea agreement proceedings and a sealed declaration executed by the witness as part of those proceedings is subject to harmless-error review. Unwarranted judicial interference with effective communication between defendant and attorney is per se reversible error only in extreme circumstances, such as where defendant is denied all communication with counsel for an inordinate period of time or during a critical stage of proceedings. (See Geders v. United States (1984) 466 U.S. 80; see also Perry v. Leeke (1989) 488 U.S. 272 [discussions during a recess]; Morris v. Slappy (1983) 461 U.S. 1, 11 [not all restrictions on communication are invalid].) 

19. People v. Bejasa (2012) Cal.App.4th , reported on April 20, 2012, in 2012 Los Angeles Daily Journal 4981, the Fourth Appellate District, Division 2 held that the trial court erred in failing to suppress statements made by the defendant to the police after he was handcuffed and placed in a police car prior to being advised of his Miranda rights. Of the statements that appellant sought to be suppressed was his estimation of time, made during a “Romberg”, or modified attention test (FST), was testimonial evidence and should have been suppressed. The court found that it was error to admit all of the questioned evidence, but that the error was harmless.