Case Name: People v. Reed , District: 1 DCA , Division: 5 , Case #: A123967
Opinion Date: 4/13/2010 , DAR #: 5487
Case Holding:
When a defendant moves for a new trial based on ineffective assistance of counsel (IAC), the trial court has a duty to inquire into the basis for the allegations. After a jury convicted appellant, counsel moved for a new trial based on insufficient evidence. When that was denied, appellant indicated through his attorney that he wanted a new trial based on “incompetence” of counsel. Defense counsel then stated he could not make that motion on behalf of appellant. The court responded that it could not consider the request, and that this would be a matter for appellate counsel. The appeal alleged the trial court erred when it did not inquire about the reasons behind appellant’s new trial motion based on IAC. The Court of Appeal agreed. Even though IAC is not one of the statutory grounds for a new trial motion, such a motion can based on IAC. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583.) In this situation, the court “must initially elicit and fully consider the defendant’s reasons for believing he was ineffectively assisted at trial.” (People v. Stewart (1985) 171 Cal.App.3d 388, 396; People v. Mejia (2008) 159 Cal.App.4th 1081, and People v. Mendez (2008) 161 Cal.App.4th 1362.) Because the trial court made no inquiry at all, reversal is required. The Third District’s decision in People v. Richardson (2009) 171 Cal.App.4th 479 is distinguishable because in that case the allegations were set forth in the record. Here the record is silent as to the reasons and that is why remand for a hearing is required.
Case Name: People v. Becker , District: 4 DCA , Division: 2 , Case #: E047898
Opinion Date: 4/13/2010 , DAR #: 5534
Case Holding:
Because Ecstasy contains methamphetamine, it qualifies as a controlled substance or an analog to a controlled substance for purposes of Health and Safety Code section 11377. Appellant was convicted of possession of Ecstasy. He argued insufficient evidence supported the conviction because the drug is neither a controlled substance, nor an analog of any controlled substance for purposes of the statute. Section 11377 prohibits possession of controlled substances which are specified in several other statutes. Ecstasy, also known as MDMA or methyldioxy methamphetamine, is not listed in any of these statutes. But, one of the statutes enumerated in section 11377, namely section 11055, subdivision (d), includes, inter alia, “stimulants” containing any quantity of methamphetamine. In this case, the officer testified Ecstasy includes methamphetamine and has a stimulating effect similar to it. Based on this testimony, the jury reasonably concluded that Ecstasy is either a controlled substance or an analog of methamphetamine for purposes of the crime.
Case Name: People v. Stacy , District: 3 DCA , Case #: C060673
Opinion Date: 4/14/2010 , DAR #: 5555
Case Holding:
There was sufficient evidence to support the crime of false personation. (Pen. Code, § 529.) When police stopped appellant for a suspected DUI, she identified herself as Amber Skorbecky, gave a birth date of April 2, 1984, and said she had no picture identification. On the way to jail, she provided the same information to another officer, and also gave him a mailing address, middle name, and driver’s license number. After a records check, it was discovered the middle name and birth date did not match Amber’s. Photographs and fingerprints from the state database also showed she was not Amber. After being confronted with this evidence, appellant admitted she lied about her identity because she had an outstanding warrant for her arrest. She told the officer that Amber was her cousin. After being convicted of false personation, appellant alleged insufficient evidence to uphold the conviction because it was not proven that 1) Amber was a real person; 2) Amber might become liable or lose a benefit based on appellant’s actions; 3) appellant made an additional act, as the statute requires; and 4) because the corpus delicti rule was not satisfied. The court found ample evidence Amber was a real person, namely confirmation of her driver’s license number, her photo in the “Cal Photo” database, and appellant’s statement that Amber was her cousin. It was also possible that Amber might suffer liability from appellant’s acts because had police believed her, Amber could have been prosecuted and punished for DUI. As to the “additional act” required by the statute, this too was satisfied. While the statute requires something beyond, or compounding, the initial report of false information, here appellant refused to complete chemical testing, which put the impersonated individual at risk of liability for additional Vehicle Code violations. Finally, the court found the corpus deliciti rule was not violated because, in addition to appellant’s extrajudicial statements, there was other evidence of the crime, namely fingerprint and photographic evidence showing appellant was not the person she claimed.
Case Name: People v. Chappelone , District: 1 DCA , Division: 2 , Case #: A121763
Opinion Date: 4/13/2010 , DAR #: 5523
Case Holding:
The trial court erred when it calculated restitution for damaged goods based on the retail value of the items rather than their devalued worth. Appellant was employed by Target and was responsible for dealing with damaged items. Damaged items were categorized and would either be returned to the manufacturer for credit, donated to charity for 30 cents on the dollar of the last retail price, or donated free of cost. Appellant and her husband began stealing some of this damaged merchandise and reselling it through a third party. Much of the property was recovered before it was sold. At the restitution hearing, the court ordered, inter alia, that appellant pay $234,185 for the stolen merchandise based on the last scanned retail price. Appellant argued this was an abuse of discretion because most of the items were to be donated for free or for 30 cents on the dollar. Respondent argued it would be “virtually impossible” to accurately calculate the value. The Court of Appeal noted that complexity of calculation does not absolve the trial court from awarding restitution in a rational manner. It found the restitution amount an abuse of discretion because Target was entitled only to the value of the stolen property, which was less than the last retail value. The last retail value was a good starting point, but the value should have then been discounted to reflect the true nature of the goods. Moreover, much of the merchandise was returned to Target, so they were doubly compensated and this resulted in a windfall.
The restitution order did not violate appellant’s Sixth Amendment right to a jury trial. Relying on a footnote in People v. Giordano (2007) 42 Cal.4th 644, which stated that the cases holding restitution hearings require fewer due process protections than criminal hearings were all decided prior to Cunningham, appellant argued the restitution order in this case constitutes punishment above and beyond that authorized by the elements of the crime, and such punishment cannot be imposed without a jury finding. The argument was rejected because the court disagreed with the premise that restitution increases punishment for a crime. Rather, the primary purpose is to compensate the victim. And to the extent that it also serves the purpose of rehabilitation and deterrence, it is not increased punishment. (People v. Wilen (2008) 165 Cal.App.4th 270; People v. Millard (2009) 175 Cal.App.4th 7.)
Case Name: People v. Landon , District: 1 DCA , Division: 2 , Case #: A123779
Opinion Date: 4/13/2010 , DAR #: 5459
Case Holding:
Amended Penal Code section 4019, which changed the calculation of presentence conduct credit, applies retroactively. While this appeal was pending, the Legislature amended section 4019. Defendant filed a motion in the trial court requesting that her presentence conduct credits be calculated in accordance with the amended statute. The trial court denied the request, finding that the amended statute did not apply retroactively. Defendant appealed from this ruling. The court noted Senate Bill 18 has neither a saving clause nor an express statement of intent. But, under In re Estrada (1965) 63 Cal.2d 740, if the amendment reduces punishment, retroactive application must be presumed as to cases not yet final on the effective date. The amendment to section 4019 reduces punishment for a subset of prisoners who have good conduct in jail. It is insignificant that the time reduction is tied to conduct instead of to a specific offense. Moreover it can be reasonably inferred from section 59 of SB 18 that the Legislature intended retroactive application. (Accord People v. Brown (2010) 182 Cal.App.4th 1354.)
A sentencing remand is not required where an appellant cannot show prejudice from the alleged sentencing error. The trial court found appellant presumptively ineligible for probation because of her out-of-state priors. Appellant argued that all but one of the priors should not have been considered because there was insufficient evidence to show they qualified as felonies in California. Respondent countered a sentencing remand was not necessary even if appellant was not presumptively ineligible for probation because she could not establish prejudice from any sentencing error. The appellate court agreed with respondent. Appellant is entitled to a sentencing remand where it can be shown it is reasonably probable the trial court would impose a different sentence. The evidence presented at the sentencing hearing overwhelmingly showed appellant would not be able to comply with conditions of probation. This was appellant’s fifth DUI conviction, and a sixth DUI case was pending. Appellant had been given several chances to address her alcoholism to no avail. Under these circumstances, the court would not have granted probation even if she was not found presumptively ineligible. Since appellant cannot show prejudice, remand is not required.
Case Name: People v. House , District: 2 DCA , Division: 1 , Case #: B212057
Opinion Date: 4/9/2010 , DAR #: 5398
Case Holding:
The amendment to Penal Code section 4019 regarding presentence custody credits must be applied retroactively to eligible defendants whose convictions were not final on the date of enactment. While the appeal was pending, the Legislature amended section 4019, which changed the calculation of presentence conduct credit. The Legislature did not include a savings clause, nor it expressly indicate whether the amendment applies retroactively. But the Court of Appeal found the plain language of the statute indicates the amendment lessens punishment: before the amendment, a defendant received one day of credit for each six-day period of confinement, and as amended a defendant now receives one day of credit for each four-day period. Consequently, per In re Estrada (1965) 63 Cal.2d 740, the defendant receives the benefit of the mitigation of punishment if the criminal conviction is not yet final. The appellate court remanded to the trial court for recalculation of credits.
Case Name: People v. Botello , District: 2 DCA , Division: 4 , Case #: B212183
Opinion Date: 4/9/2010 , DAR #: 5386
Case Holding:
Because the firearm enhancement under Penal Code section 12022.53, subdivision (e)(1) (principal armed in gang enhancement case) has a specific pleading and proof requirement, when the prosecution has failed to comply with the pleading requirement, it cannot be substituted on appeal in place of another gun-use enhancement. Appellants, identical twins, were convicted of attempted murder trial for the benefit of a gang, and the jury found true firearm allegations under Penal Code sections 12022.5 and 12022.53, subdivisions (b), (c), and (d) as to both of them. They argued on appeal that insufficient evidence supported the gun-use enhancements because the victim could not establish which one of them personally discharged the weapon. Respondent agreed the evidence did not support the enhancements as charged, but argued a gun-use enhancement under section 12022.53, subdivision (e)(1) could be imposed instead. The appellate court found the reasoning in People v. Mancebo (2002) 27 Cal.4th 735, and People v. Arias (2010) 182 Cal.App.4th 1009, prohibit the substitution of the enhancement. Like the One Strike multiple-victim circumstance in Mancebo, and the attempted murder statute in Arias , subdivision (e)(1) has an express pleading and proof requirement. Imposition of the enhancement would violate not only the language of the statute but also appellants’ due process right to notice. And harmless error analysis does not apply to the failure to satisfy the pleading requirement. Therefore, the enhancements were stricken.
Case Name: Alvarez v. Superior Court , District: 1 DCA , Division: 1 , Case #: 5321
Opinion Date: 4/8/2010 , DAR #: 5321
Case Holding:
San Francisco Superior Court’s judicial-assignment procedure limiting the number of judges authorized to accept plea agreements is valid. The prosecutor and defendant agreed to a plea bargain in a judge’s chambers. The judge approved the bargain, but did not take the plea. Per local court procedure, he transferred the matter to a designated department which handles plea negotiations for that judge to accept and take the plea. After the designated judge refused to accept the bargain without modifying it, defendant filed a writ of mandate/prohibition challenging the process. He argued it was not valid because a local court rule had not been adopted. The appellate court held the assignment procedure was validly instituted without promulgation of a local court rule. The court found the assignment procedure was an allocation of the “business of the court” and noted a presiding judge has plenary authority over judicial assignments per Government Code section 69508, subdivision (a), and rule 10.603. A local court rule was not needed before the procedure was enacted because it does not affect how parties are required to prosecute their cases or practices before the court, but rather governs who will hear the matter. For this reason, this case was distinguishable from Hall v. Superior Court (2005) 133 Cal.App.4th 908 [local 30-day cut off rule for filing motions before trial] and from People v. Cobb (1983) 139 Cal.App.3d 578 [local rule refusing plea agreements after pretrial readiness conference].
Case Name: People v. Zamani , District: 6 DCA , Case #: H032414
Opinion Date: 4/7/2010 , DAR #: 5228
Case Holding:
Appropriation of lost property (Pen. Code, § 485) is a general intent crime. In this case of first impression the court considered whether appropriation of lost property is a specific or general intent crime. The court reviewed the statute in the context of the entire statutory scheme which addresses various forms of theft. It compared this statute to section 484, which defines various “felonious takings” as theft. In section 484, the use of the word “felonious” has been held to import the common law specific intent requirement. But not all of the theft offenses in the scheme have a specific intent requirement. (See, e.g., Pen. Code, § 484c.) The only mental state mentioned in section 485 is the perpetrator’s “knowledge.” Also, the Legislature has made it clear that section 485 is a unique species of theft distinct from those in section 484 because it has given both the court and the prosecutor discretion to treat the former as an infraction, whereas the discretion to treat the latter as an infraction is only vested with the prosecutor. This more lenient treatment for section 485 reflects the Legislature’s acknowledgment that it does not have the same elements as a violation of section 484. (The dissent concluded the crime was a specific intent crime.)
Any error in failing to give a mistake of fact instruction was harmless. QuickSilver technology company shipped two circuit boards, but they were lost in transit. Another company purchased the boards from a dumpster diver and sold them to an individual on E-Bay for about $100. The individual contacted QuickSilver for a manual to learn more about the boards, and learned from an employee that they were lost property valued at about $24,000. The company that sold the individual the boards on E-Bay enlisted appellant’s help in getting the boards back to QuickSilver and obtaining a reward for the purchaser. Instead, appellant told QuickSilver he was “sitting on a gold mine” and sought payment for return of the boards. At his trial for appropriation of lost property, appellant testified he knew QuickSilver had been paid by their insurance company, but did not believe they would repay the insurance company, and so was trying to set them up for insurance fraud. Based on this testimony he requested a mistake of fact instruction, which the trial court denied. The court held failure to give the instruction was harmless given that he provided no explanation as to why it was necessary to try to extract large sums of cash from QuickSilver in order to report suspected insurance fraud to the Department of Insurance.
Case Name: People v. Friedeck , District: 2 DCA , Division: 6 , Case #: B213944
Opinion Date: 4/8/2010 , DAR #: 5263
Case Holding:
A defendant’s refusal to undergo drug treatment as a condition of deferred entry of judgment (DEJ) makes him ineligible for Prop. 36 probation. After pleading guilty to possession of Percocet, the court placed appellant on DEJ and ordered him to undergo drug counseling. A DEJ violation alleged appellant was arrested for being under the influence. It further alleged appellant would not be eligible for Prop. 36 probation because there was no evidence of enrollment in drug treatment. Appellant admitted being in violation of the DEJ order and was sentenced to prison. At a subsequent credits hearing, appellant requested Prop. 36 probation, but the request was not entertained. Appellant argued on appeal that his implied refusal to undergo drug treatment did not make him ineligible for Prop. 36. The Court of Appeal affirmed, relying on People v. Strong (2006) 138 Cal.App.4th Supp. 1. As that case recognized, even though no sentence is imposed when DEJ is granted, it is the equivalent of probation. Prop. 36 does not require that the refusal of drug treatment occur post conviction, or that treatment is refused under a particular program. Because the conviction in this case was entered after appellant refused to participate in drug treatment, that is sufficient to preclude Prop. 36 eligibility.
Case Name: People v. Superior Court (Pearson) , District: CalSup , Case #: S171117
Opinion Date: 4/8/2010 , DAR #: 5260
Case Holding:
Penal Code section 1054.9 does not unconstitutionally amend Prop. 115. The Habeas Corpus Resource Center filed a motion for post-conviction discovery under section 1054.9 to aid in habeas preparation to challenge the defendant’s death sentence. The statute requires defendants sentenced to death or to LWOP to be given post-conviction discovery in some circumstances. After the trial court partially granted the request, the prosecution filed a writ of mandate alleging section 1054.9 is invalid because it amended Prop. 115 without 2/3 legislative majority as required by the proposition. The Supreme Court granted review on the issue of the statute’s validity. The Court found section 1054.9 augments Prop. 115’s discovery provisions, but does not amend them because it does not authorize anything Prop. 115 prohibits or prohibit anything it authorizes. Prop. 115’s discovery provisions relate to evidence at trial whereas this discovery statute is for habeas investigation, which is separate from the criminal case itself.