Case Name: People v. Gamache , CalSup , Case #: S052808
Opinion Date: 3/18/2010 , DAR #: 4099
Case Holding:
Under Penal Code section 1424, a motion for recusal of the prosecutor will not be granted unless it is shown that a conflict exists that makes a fair trial unlikely, with review of the trial court’s decision being whether there has been an abuse of discretion. In this death penalty case, the Supreme Court reviewed the denial of the motion for recusal against the entire San Bernadino County District Attorney’s Office and found no abuse of discretion. The victim of the attempted murder worked for the office and her husband was the murder victim. The office was extremely large and divided into three geographical divisions. The responsible prosecuting attorneys were no more than superficially acquainted with the employee-victim. Under the facts of this case, although appellant showed that the prosecution had a conflict by virtue of the victim’s employment, he failed to establish that the victim’s employment with the office affected the District Attorney’s decision to seek the death penalty or would affect the conduct of the trial itself, such that he could not receive fair trial.
Case Name: In re R.C. , District: 1 DCA , Division: 4 , Case #: A12675
Opinion Date: 3/19/2010 , DAR #: 4182
Case Holding:
A court is not required to consider a minor’s eligibility where the minor, initially alleged to have committed a felony, ultimately admits a misdemeanor offense. Under Welfare and Institutions Code section 790, a minor may be eligible for deferred entry of judgment because of the commission of a felony offense. The prosecuting attorney is required to determine eligibility and if there is a determination of eligibility and the minor admits the offense, the court may grant DEJ. Here, a petition alleging felony vandalism was filed but minor ultimately admitted a misdemeanor violation of Penal Code section 594 and was adjudged a ward of the juvenile court. On appeal, minor contended that the court failed to exercise discretion to determine whether he was eligible for DEJ. However, the appellate court, looking to the language of the statute and the purposes of the law, concluded that because minor did not admit a felony violation, DEJ procedures were no longer applicable.
Case Name: Blakely v. San Bernadino County Superior Court , District: 4 DCA , Division: 3 , Case #: G042107
Opinion Date: 3/19/2010 , DAR #: 4229
Case Holding:
Under the MDO Act the deadline to evaluate and certify the prisoner is mandatory and failure to comply with it invalidates the Board’s determination. The Mentally Disordered Offender Act, Penal Code section 2960 et seq., provides for involuntary mental health treatment of the prisoner who meets the criteria set forth in the statute. The Act requires that the evaluation and certification of the prisoner occur prior to release on parole. Here, following her conviction for resisting a peace officer and misdemeanor vandalism, appellant was incarcerated in prison on September 3, 2008, for a 16 month term, but the next day, the authorities calculated that she should be released on parole because of accrued time credits. Before she was released, however, she was evaluated and certified to the Board of Parole Hearings as meeting the MDO criteria and the Board released her on parole on condition she receive treatment at the state hospital. She was then transferred to Patton State Hospital. The appellate court, utilizing rules of statutory construction, held that the deadline (prior to release on parole) for the certification was mandatory and that the statute contained no provision for good cause extensions of the deadline. Because appellant, despite her custody status, was on parole when the evaluation/certification was completed the action was unauthorized and had to be invalidated. The court noted that its holding did not necessarily mean that appellant should be released because, where appropriate, action could be taken under the Lanterman-Petris-Short Act for continued detention. Ironically, just prior to oral argument on this case, the Board found appellant no longer met the criteria of a MDO and scheduled her for parole release.
Case Name: People v. Castillo , District: 3 DCA , Case #: C061806
Opinion Date: 3/18/2010 , DAR #: 4177
Case Holding:
Imposition of the $30 assessment pursuant to Government Code section 70373, for an offense occurring prior to the effective date of the statute is not a violation of the prohibition against ex post facto laws and the triggering date for the imposition is the date of conviction. Appellant was convicted of a 2007 carjacking and sentenced to 19 years in state prison and ordered to pay a $30 criminal conviction assessment pursuant to Government Code section 70373, which has an effective date of January 1, 2009. The court held that imposition of the $30 assessment was not a violation of the prohibition against ex post facto laws because the assessment is not punitive — it was not denominated a fine, the amount is small and not dependent on the seriousness of the crime, and it was adopted to address a budget shortfall. Additionally, imposition of the assessment was not statutorily prohibited. The language of the statute states that the assessment is to be imposed on every conviction, as opposed to every offense. This language is identical to that of Penal Code section 1465.8, as interpreted in People v. Alford (2007) 42 Cal.4th 749, holding the conviction date to be the operative date and when a term has been given a particular meaning by a judicial decision, it is presumed to have the same meaning in later enacted statutes. In this case, because the conviction was after the January 1, 2009, effective date of section 70373, imposition of the assessment was not error.
Case Name: People v. Sokolsky , District: 2 DCA , Division: 4 , Case #: B212437
Opinion Date: 3/23/2010 , DAR #: 4337
Case Holding:
An appellant has no constitutional right to self-representation on appeal from an SVPA commitment. At jury trial, appellant was found to be a sexually violent predator and committed for treatment. On appeal he argued that he should be allowed to represent himself on the appeal because a significant liberty interest is at stake in a SVPA proceeding and, regardless, the appellate court has the discretion to permit him to represent himself. The court, relying on People v. Fraser (2006) 138 Cal.App.4th 1430, which held that a defendant has no constitutional right to represent himself in a civil commitment under the SVPA, rejected appellant’s claim. There is no Sixth Amendment right to self representation in proceedings other than criminal prosecutions and the SVPA proceeding, a civil commitment with a non-punitive purpose, is not equivalent to a criminal prosecution. As to the discretion to permit appellant to represent himself, the court declined to exercise its discretion in this area.
Case Name: People v. Bowman , District: 5 DCA , Case #: F058082
Opinion Date: 3/23/2010 , DAR #: 4395
Case Holding:
The holding in People v. Geier (2007) 41 Cal.4th 555, that an in-court witness may rely on laboratory notes and reports prepared by another to support the witness’ expert opinion was not abrogated by Melendez-Diaz v. Massachusetts (2009) 557 U.S. __ [129 S.Ct. 2527]. Appellant was charged with transportation of methamphetamine. At trial, the court permitted the supervisor of the analyst who actually completed the analysis of the controlled substance to testify that she had evaluated the notes and test results and determined that they supported her conclusion that the substance was methamphetamine. The report was not entered as evidence. On appeal, the court, relying on People v. Geier, found no error. It explained that in Geier, there was no Sixth Amendment violation of the right to confrontation because the in-court witness relied on laboratory notes and reports to support an expert opinion that she was qualified by training and experience to give. Melendez-Diaz, on the other hand, dealt with the admissibility of a written document, defined as testimonial, that was not subject to cross-examination concerning either expert qualifications or analytical conclusions, the “witnesses” who completed the affidavits not testifying.
Case Name: People v. Gonzales , District: 4 DCA , Division: 2 , Case #: E046800
Opinion Date: 2/23/2010 , DAR #: 4399
Case Holding:
CALCRIM No. 1170 adequately defines the “residence” element of Penal Code section 290; and the definition of residence in Penal Code section 290.01, subdivision (g) is not unconstitutionally vague and ambiguous. Appellant registered as a sex offender at one location in Fontana but evidence presented at trial indicated that he spent considerable time at a second address and that he had not registered this second address. Appellant was convicted of failure to register under Penal Code section 290, subdivision (g)(2). On appeal, he argued that CALCRIM No. 1170 inadequately defined the “residence” element of the registration statute. The instruction requires proof that defendant knows of the duty to register every residence in which defendant regularly resides regardless of the number of days and nights he spends there. The court disagreed with appellant, finding that the meaning of the term “residence” as defined in Penal Code section 290.011, subdivision (g) is a commonly understood term and, as such, does not require a separate sua sponte definition by the court. The court also found that the definition of “residence” in Penal Code section 290.011, subdivision (g) is not unconstitutionally vague and ambiguous as it is the common meaning of residence understandable by the average person or law enforcement agency.
Case Name: People v. Sanders , District: 2 DCA , Division: 8 , Case #: B206569
Opinion Date: 2/24/2010 , DAR #: 4382
Case Holding:
Where a party is deprived of the benefits of cross-examination of a witness by refusal of the witness to answer, whether the trial court strikes the testimony or instructs the jury that the refusal can be a factor in assessing credibility depends on whether the testimony involves collateral matters. Appellant was charged with shootings of two victims at a motorcycle club party. Although both victims, as well as other witnesses, positively identified appellant as one of the shooters, identification of the second suspect was subsequently determined to be erroneous. One of the witnesses changed his identification after being advised by other individuals that this subject was not at the party. At trial, the witness refused to identify the individuals who had so advised him. The court denied appellant’s motion to strike the testimony and instead provided wide latitude on cross examination and instructed the jury that the witness’ failure to answer the questions as to the identity could be used in assessing his credibility in all his testimony. The appellate court found no error — where the questions that the witness refuses to answer concern a collateral issue and not a material issue and the witness is fully cross examined as to material issues, there is no violation of the due process right to confront and cross examine. The court also found no error in the sentence imposed, 64 years to life for the two attempted murders and the two Penal Code section 12022.53, subdivision (d) enhancements. Where there are both determinate and indeterminate sentences, the provisions of the Determinate Sentencing Act and Penal Code section 1170.1 do not apply.
Case Name: People v. Milward , District: 3 DCA , Case #: C058326
Opinion Date: 3/22/2010 , DAR #: 4250
Case Holding:
Penal Code section 245, subdivision (a)(1) (assault with a deadly weapon) is not included in Penal Code section 4500 (assault with a deadly weapon by a life prisoner) and a defendant can be convicted of both. Appellant was convicted of both Penal Code section 245, subdivision (a)(1) and section 4500. The appellate court rejected his argument that because the elements of section 245, subdivision (a)(1) are included in section 4500 he could not be convicted of the lesser offense. (People v. Reed (2006) 38 Cal.4th 1224.) However, section 4500 merely providing for assault with a deadly weapon or instrument, does not exclude an assault by a life prisoner with a firearm, whereas section 245, subdivision (a)(1) specifically excludes a firearm in its definition of deadly weapon. Thus, a life prisoner can violate section 4500 without violating section 245, subdivision (a)(1). Although the appellate court would normally be bound by the Supreme Court’s decision in People v. Noah (1971) 5 Cal.3d 469, holding otherwise, because section 245, subdivision (a)(1) was amended to exclude firearms following the Noah decision, Noah no longer provided a binding interpretation. Separately, the court noted that CALCRIM No. 875, unlike CALJIC No. 9.02, does not accurately describe section 245, subdivision (a)(1) because it does not exclude firearms, and that it should be rewritten.
Case Name: People v. Fleury , District: 3 DCA , Case #: C061629
Opinion Date: 3/19/2010 , DAR #:4287
Case Holding:
Imposition of the $30 per offense Government Code section 70373 assessment does not violate state or federal prohibitions against ex post facto statutes. The ex post facto clauses of the federal and state constitutions protect a defendant from retrospective legislation with a punitive effect or purpose. If the intent of the Legislature is to impose punishment, it cannot be done retroactively. If the intention was to enact a civil and nonpunitive regulatory scheme, it may still violate the prohibition against ex post facto laws if it is so punitive that it negates the intent. Government Code section 70373, imposing a $30 assessment for a criminal or traffic offense, was part of a broader legislative scheme raising costs in civil, family, and probate cases. Its language indicates that the Legislature did not intend the assessment as punishment — it is titled an assessment with its purpose being court funding, a nonpunitive objective. It is not imposed solely on persons convicted of a crime as it also includes traffic matters. This Legislative intent is not negated by the effect of the assessment, being relatively small, it does not constitute punishment.
Case Name: Wilson v. Los Angeles County Superior Court , District: 2 DCA , Division: 7 , Case #: B216212 , Opinion Date: 3/2/2010 , DAR #: 4279
Case Holding:
Pursuant to the due process clause of the California and Federal Constitutions, an initial SVPA commitment trial may not proceed while the defendant is incompetent. At a probable cause hearing, the superior court judge found probable cause to believe appellant suffered from a diagnosed mental disorder, was likely to engage in violent sexual behavior if released, and the matter was set for an initial trial on the SVPA petition. Counsel for appellant moved to stay the proceedings pending determination of appellant’s competency but the court denied the motion, finding appellant had no statutory right to be mentally competent during SVPA proceedings, and that with the guarantee of counsel provided by the SVPA statute, his due process concerns were met. The appellate court disagreed, citing People v. Allen (2008) 44 Cal.4th 843, which provides a four-part balancing test to determine which protections not contained in the statute are required to meet due process considerations. Here, in weighing whether defendant must be mentally competent for the initial SVPA proceeding, the court observed that appellant’s private interests, loss of liberty and stigma as being classified as a sexually violent predator subjected to treatment, are high; dignitary interest, ability to be an active participant in an SVPA proceeding, is strong; absent appellant’s participation, risk of an erroneous finding exists; and the state’s interest protecting the community and providing treatment will not be unduly hampered with a requirement that a defendant in the initial SVPA proceeding be mentally competent. The court granted appellant’s petition for writ of mandate and directed the superior court to suspend SVPA proceedings and conduct a hearing, in which Penal Code sections 1368 and 1369 can be utilized, to determine appellant’s mental competency. [Editor's note: This issue is pending in the Supreme Court in People v. Moore (2009) 174 Cal.App.4th 856, review granted September 17, 2009, S174633.]