Criminal Law Case Summaries July – August 2011

by Gary Mandinach, Staff Attorney, California Appellate Project, Los Angeles, California 1.   People v. Bell (2011)     Cal.App.4th    , reported on July 21, 2011, in 2011 Los Angeles Daily Journal 10935, the Second Appellate District, Division 1 held that there was sufficient evidence to support a conviction for grand theft, where the facts established that the defendant used another person’s name and personal identifying information to convince a lessor of an apartment that the defendant was creditworthy, then leased the apartment and was delinquent in paying rent until she was evicted.  The court found that there was sufficient evidence of an intent to permanently deprive the lessor of a leasehold interest, at least to the extent that the defendant failed to pay rent during her occupancy. (Cf. People v. Avery (2002) 27 Cal.4th 49, 56-57, citing People v. Zangari (2001) 89 Cal.App.4th 1436, 1443.) 2.   People v. Rushing (2011)     Cal.App.4th    , reported on July 21, 2011, in 2011 Los Angeles Daily Journal 10919, the Second Appellate District, Division 3 held that the prosecutor had legitimate, race-neutral reasons for exercising a peremptory challenge against an African American venire member, based on her degree of sympathy for gang members, her husband’s employment by the post office, and her acknowledged religious prejudice against atheists. 3.   People v. Canizalez (2011)     Cal.App.4th    ,  reported on July 22, 2011, in 2011 Los Angeles Daily Journal 10983, the Second Appellate District, Division 2 held that sufficiency evidence supported the defendants’ convictions for second degree murder based on the subjective awareness of the risk of death created by participating in a speed contest.  It is proximate causation, not direct or actual causation, which together with the defendant’s mental state determines liability. (People v. Sanchez (2001) 26 Cal.4th 834, 845 [just because the actual cause of death cannot be determined does not undermine the conviction].)  The defendant’s act must be a substantial factor in producing the result of the crime. (People v. Scola (1976) 56 Cal.App.3d 723, 726-727 [the prosecution does not have to prove with certainty that the death would have occurred absent the defendant’s act].)  Even though the defendant’s car did not hit the victim, and the other car did, the acts of both led directly to and were a proximate cause of the result. (People v. Kemp (1957) 150 Cal.App.2d 654, 659.)  The Court of Appeal also found that, under the facts of this case, where aiding and abetting was one of the prosecution’s alternate theories of liability, that CALCRIM 400, is an accurate statement of the law in that the aider and abettor can be “equally guilty” with the direct perpetrator of the crime. (People v. Samaniego (2009) 172 Cal.App.4th 1148 [an aider and abettor will generally have the same mens rea as the direct perpetrator, and have the same liability; or he could have greater or lesser liability if the mens rea is more than or less than the direct perpetrators]; see also People v. McCoy (2001) 25 Cal.4th 1111, 1115 [if a persons mens rea is more culpable than another, that person may be guilty of a greater crime, even as the aider and not the direct perpetrator].) Secondly, CALJIC 403 did not mislead the jury in this matter since the speed contest, which is a non-target misdemeanor or felony (wobbler) can support a murder conviction under the natural and probable consequences doctrine.  (See People v. King 1938) 30 Cal.App.2d 185, 200; People v. Lucas (1997) 55 Cal.App.4th 721, 732-733.)  Here, the speed contest constituted a felony under Vehicle Code section 23109, subdivision (b), since his conduct caused injury as described in that section. 4.   People v. Bennett (2011)     Cal.App.4th    , reported on July 22, 2011, in 2011 Los Angeles Daily Journal 11027, the Second Appellate District, Division 1 held that it was not unlawful for an officer to detain a vehicle that had committed a parking violation.  The officer then saw the defendant make a furtive movement as to drop something on the floorboard of the car.  When ordered out of the car, the officer seized what he believed was rock cocaine, and then following the defendant’s arrest, additional drugs and a digital scale were found.  The Court of Appeal held that pursuant to United States v. Choudhry (9th Cir. 2006) 461 F.3d 1097, 1098-1102, which relied in part on Whren v. United States (1996) 517 U.S. 806, 810, that California does not distinguish between a police officer’s authority to enforce traffic violations as opposed to parking violations.  Because the officer had the authority to enforce the particular violation at issue, a civil parking violation under the Vehicle Code fall within Whren’s scope. 5.   People v. Roldan (2011)     Cal.App.4th    , reported on July 22, 2011, in 2011 Los Angeles Daily Journal 11032, the Second District, Division 1 held that a police officer’s failure to locate proof of insurance among the defendant’s possessions and in the defendant’s vehicle following a traffic collision was insufficient to support a conviction for violating Vehicle Code section 16028 since the statute requires that the officer “demand” or “request” the proof of financial responsibility be made by the investigating officer.  Since the court denied the motion to dismiss under section 1118.1, only the evidence to support the conviction is considered.  (See People v. Augborne (2002) 104 Cal.App.4th 362, 371.) 6.   People v. Clair (2011)     Cal.App.4th    , reported on July 25, 2011, in 2011 Los Angeles Daily Journal 11063, the First Appellate District, Division 5 held that there was sufficient evidence to support the defendant’s convictions for violating section 273a, subdivision (a) where jury was presented with numerous photographs of the sexual abuse of the defendant’s 9-year old daughter inserting a dildo into her vagina.  The jury could reasonably infer that the acts would likely cause great bodily injury based upon her age, physical development, and the manner of abuse. There is no requirement that a victim suffer actual injury or harm to support a conviction for violating the section as it is a general intent crime. (People v. Sargent (1999) 19 Cal.4tth 1206, 1221-1224.) 7.   In re Rinaldo S. (2011)     Cal.App.4th    , reported on July 25, 2011, in 2011 Los Angeles Daily Journal 1069, the Fifth Appellate District held that where the minor “willfully” (see People v. Lewis (2004) 120 Cal.App.4th 837, 852 [implies simply a purpose or willingness to commit the act; is a synonym for intentionally]),  obtained the victim’s personal identifying information for purposes of section 530.5, subdivision (a), where he received an unsolicited text message containing the victim’s email account and password and used this information to alter the victim’s information on a social networking site. Intentional civil torts, such as libel, constitute an “unlawful purpose” for purposes of section 530.5, subdivision (a).   However there was insufficient evidence to support a guilty finding of section 647.6, subdivision (a)(1), (see People v. Lopez (1998) 19 Cal.4th 282, 289), and the facts failed to support the prosecution’s assertion that minor’s conduct was motivated by an unnatural or abnormal sexual interest in the victim where record indicated that the minor never attempted to contact the victim and intended his comments to be a joke. 8.   People v. Appellate Division of the Superior Court of Los Angeles County (World Wide Rush, LLC) (2011)     Cal.App.4th    , reported on July 25, 2011, in 2011 Los Angeles Daily Journal 1095, the Second Appellate District, Division 1 held that section 1054 et. sec., do not bar production of corporate records, requested by the prosecution, which constitute a category of nontestimonial evidence that a prosecutor is able to attain under section 1054.4. (People v. Superior Court (Keuffel & Esser Co.) (1986) 181 Cal.App.3d 785.) 9.   People v. Stillwell (2011)     Cal.App.4th    , reported on July 26, 2011, in 2011 Los Angeles Daily Journal 11132, the Third Appellate District held that a sniff by a well-trained detection of the exterior of a pickup truck does not amount to a “search” under the Fourth Amendment.  (See United States v. Place (1983) 462 U.S. 696 [dog sniff treated as sui generis because it discloses only the presence or absence of narcotics].)  There was sufficient evidence that dog was trained, certified, and handled by a trained and certified handler was sufficient to support a finding that the dog was well trained and, thus, reliable. Handler’s observation of dog’s change in behavior and alert in a manner consistent with the dog’s training to the odor was sufficient to establish probable cause. (People v. Bautista (2004) 115 Cal.App.4th 229, 236-237; see also People v. Mayberry (1982) 31 Cal.3d 335, 341-342.) Dog’s action of standing up on his hind legs and putting his front paws on the side of defendant’s truck did not amount to an infringement of constitutional rights. (See People v. Amick (1973) 36 Cal.App.3d 140, 143-146.) 10.   People v. Mitchell (2011)     Cal.App.4th    , reported on July 27, 2011, in 2011 Los Angeles Daily Journal 11200, the Third Appellate District held that the defendant’s purported waiver of his right to appeal as part of a plea bargain was not valid where the trial court advised the defendant that the prosecutor wanted him to waive this right and discussed what issues the defendant may appeal, without explaining to the defendant what his right actually was. (People v. Vargas (1993) 13 Cal.App.4th 1653, 1659 [to be enforceable, the defendant’s waiver of the right to appeal must be knowing, intelligent, and voluntary.])  The right of appeal should not be considered waived or abandoned except where the record clearly establishes it. [Citation.]” (Id., 13 Cal.App.4th at pp. 1661-1662.)  The court exerted pressure on the defendant by telling him that he should not let this matter hang up his plea.  It also told the defendant that it did not see an issue on which the defendant would appeal. Defendant was not estopped from challenging his sentence, which included an enhancement that was not alleged against him and which he never admitted. (See People v. Jones (1990) 51 Cal.3d 294, 317; People v. Hernandez (1988) 46 Cal.3d 194, 208 [defendant must be given notice of his charges])  Generally, where a defendant  pleads guilty in return for a specified sentence, appellate courts will not find error even though the trial court acted in excess of jurisdiction in reaching that figure, so long as the trial court did not lack fundamental jurisdiction.  This is so the defendant does not trifle with the courts. (People v. Hester (2000) 22 Cal.4th 290, 295.) 11.   People v. Thomas (2011)     Cal.4th    , reported on July 29, 2011, in 2011 Los Angeles Daily Journal 11373, the California Supreme Court held that the trial court did not err in denying the defendant’s motion to sever two murder cases, filed in the same information, under section 954.  Since consolidation promotes efficiency, it is preferred. (Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1220; People v. Hartsch (2010) 49 Cal.4th 472, 493.)  When two crimes of the same class are joined, cross-admissibility is not required. (� 954.1.)  When the evidence underlying the joined cases is not cross-admissible, the court considers whether the benefit of joinder sufficiently outweigh the possibility that the evidence of unrelated charges might affect the jury’s consideration of each set of facts. (People v. Soper (2009) 45 Cal.4th 759, 771-774 [three factors set forth to make the assessment].)  None of the factors weighed against joinder in this case. 12.   In re Sampson (2011)     Cal.App.4th    , reported on August 1, 2011, in 2011 Los Angeles Daily Journal 11463, the First Appellate District, Division 1 held that an amendment to section 2933.6, denying conduct credits to inmates who are validated gang members placed in a Secure Housing Unit (SHU), is not an ex post facto law as applied to inmate who, after the effective date of the statute, continued to associate with a gang, continued to pose a threat to prison security, and continued to warrant housing in SHU, and who had not completed the Department of Corrections and Rehabilitation “debriefing” process of formally dropping out of the gang. 13.   People v. Cruz (2011)     Cal.App.4th    , reported on August 4, 2011, in 2011 Los Angeles Daily Journal 11639, the Second Appellate District, Division 6 held that the defendant was not in violation of his probation for failing to wear the GPS device, based on the order of the probation officer, since the court specifically found that he did not have to wear the device. (In re Pedro Q. (1989) 209 Cal.App.3d 1368 [the probation department cannot add conditions that the court did not order]. To the extent section 1210.12 purports to deprive the trial court of the authority to decide who should be subject to GPS monitoring, and give it to the probation department, it violates the separation of powers. (Cal. Const., art. III, � 3.) 14.   People v. Buza (2011)     Cal.App.4th    , reported on August 5, 2011, in 2011 Los Angeles Daily Journal 11741, the First Appellate District, Division 2 held that the seizure of the defendant’s DNA pre-trial, under the Forensic Identification Data Base and Data Bank Act of 1998 (the DNA Act; � 295 et. sec.) when he was entitled to the presumption of innocence, and there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested, violated his Fourth Amendment right to be free from unreasonable searches and seizures. 15.   People v. Green (2011)     Cal.App.4th    , reported on August 8, 2011, in 2011 Los Angeles Daily Journal 11817, the Forth Appellate District, Division 1 held that the phrase “common scheme or plan” in section 12022.6, subdivision (b) does not have a technical meaning, but rather are understood to have a plain, ordinary meaning these words commonly convey.  In order to prove a “common scheme or plan” for purposes of this statute, a court must compare the losses from each charged count and determine whether there are a concurrence of common features that the various losses are naturally to be explained as caused by a general plan of which they are the individual manifestations.  The common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.  The evidence was insufficient to support the jury’s findings that losses incurred by the defendant’s embezzlement arose from a “common plan or scheme” where the victims in count one and two were not connected, the methods of theft were different, and the schemes to defraud were separate and distinct and not contingent on each other. 16.   People v. Bryant (2011)     Cal.App.4th    , reported on August 10, 2011, in 2011 Los Angeles Daily Journal 12011, the Fourth Appellate District, Division 1 held that the trial court prejudicially erred in failing to instruct the jury, sua sponte, based on the evidence presented, on the lesser included offense of voluntary manslaughter (� 192, subd. (a)), that an unintentional killing committed without malice during the course of an inherently dangerous assaultive felony constitutes voluntary manslaughter, but not involuntary manslaughter. (People v. Garcia (2008) 162 Cal.App.4th 18.)  Additionally, the Court of Appeal found that it was prejudicial even under Watson (see People v. Breverman (1998) 19 Cal.4th 142, 176-178 [probability of a different result in this context does not mean more likely than not, but merely a reasonable chance, more than a abstract possibility]; see also People v. Soojian (2010) 190 Cal.App.4th 491, 519.) 17.   People v. Battle (2011)     Cal.App.4th    , reported on August 10, 2011, in 2011 Los Angeles Daily Journal 11989, the Third Appellate District held that the trial court did not err in failing to instruct the jury on voluntary manslaughter based on imperfect self-defense and imperfect defense of others where evidence indicated defendant did not fear imminent harm from victim at the time of the murder. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)  All the surrounding circumstances, including prior assaults and threats, may be considered in determining whether the accused perceived an imminent threat of death or great bodily injury. (Id., at 183; People v. Michaels (2002) 28 Cal.4th 486, 530-531.)  Provocation, no matter the means of proving it, is not a defense to murder by lying in wait or conspiracy to commit murder, or conspiracy to commit murder. (See People v. Stanley (1995) 10 Cal.4th 764, 794.) 18.   People v. Lowery (2011)     Cal.4th    , reported on August 12, 2011, in 2011 Los Angeles Daily Journal 12122, the California Supreme Court held that section 140, subdivision (a), which makes it a crime to threaten a victim or witness who provided assistance to law enforcement, requires proof that a reasonable person would understand the allegedly threatening statements, when considered in their context and surrounding circumstances, to communicate a serious expression of an intent to commit an act of unlawful violence, as the statute targets “true threats”.  Such a construction of this statute does not run afoul of the First Amendment. (Virginia v. Black (2003) 538 U.S. 343, 359.) 19.   People v. Torres (2011)     Cal.App.4th    , reported on August 12, 2011, in 2011 Los Angeles Daily Journal 12113, the Second Appellate District, Division 5 held that sufficient evidence supported the defendants’ convictions for bringing alcohol into a jail facility under section 4373.5 and possession of alcohol in a jail facility under section 4373.8.  Here a security guard at the facility observed a civilian and a trash can within prison camp in an atypical location, then heard the civilian honking incessantly while driving away.  Then he saw the defendants take possession of the trash can and retrieve its contents, and heard defendant Torres ask “Which one is mine?” Once the bags were dropped in the trash can, the Court of Appeal found that the crime of bringing alcohol into the prison camp was completed, and defendants’ objectives then shifted to possession.  The Court of Appeal unbelievably found that the defendants harbored separate objectives, the transportation into the camp and taking possession of the contraband once it reached the facility, and therefore the crimes are separately punishable. 20.   People v. Bowles (2011)     Cal.App.4th    , reported on August 15, 2011, in 2011 Los Angeles Daily Journal 12237, the Fourth Appellate District, Division 1 held that the trial court does not have the power to grant sanctions under section 1054.5, subdivision (b) due to the prosecution’s failure to disclose exculpatory evidence, including a motion for a new trial, when the jury has already returned its verdict on the charged crimes. 21.   People v. Singh (2011)     Cal.App.4th    , reported on August 15, 2011, in 2011 Los Angeles Daily Journal 12231, the Fourth Appellate District, Division 1 held that unlike the offense in People v. Hofsheier (2006) 37 Cal.4th 1185 (consensual oral cop), subjecting sex offenders convicted under section 288, subdivision (a), to mandatory sex offender registration does not violate equal protection, because offenders convicted under this statute are not similarly situated to persons convicted of unlawful sexual intercourse with a minor, oral copulation with a minor, or sexual penetration with a minor. Section 288, subdivision (a) affords a specific protection to minors under the age of 14 and is a specific intent offense whereas these other crimes are general intent offenses against minors under the age of 18.  This court also distinguished its prior decision in People v. Ranscht (2009) 173 Cal.App.4th 1369. 22.   People v. Keister (2011)     Cal.App.4th    , reported on August 16, 2011, in 2011 Los Angeles Daily Journal 12373, the Third Appellate District held that section 288.3, subdivision (a), which makes it a felony to communicate with a minor with the intent to commit a lewd act, does not violate the a defendant’s constitutional rights to travel (Shapiro v. Thompson (1969) 394 U.S. 618, 629) or his First Amendment rights. (People v Hsu (2000) 82 Cal.App.4th 976, 998-989 [� 288.2 upheld against constitutional challenges].)  Additionally, the statute is not unconstitutionally vague (United States v. Williams (2008) 553 U.S. 285, 305-306), and does not, by treating persons who communicate with minors for sexual purposes differently than those who communicate with other criminal intent, violate the right to equal protection. (See People v. Buffington (1999) 74 Cal.App.4th 1149, 1155.)  The Court of Appeal found that there was not a violation of the single-subject rule with the inclusion of section 288.3, subdivision (a) in Proposition 83, since the various provisions addressed in Proposition 83, were designed to protect children from sexual predators. (Manduley v. Superior Court (2002) 27 Cal.4th 537, 575-576.) Finally, the Court of Appeal found that section 288.4, subdivision (a) is not a lesser included offense to section 288.3, subdivision (a), since it is possible to commit the greater offense without committing the lesser. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1456.) 23.   People v. Smith (2011)     Cal.App.4th    , reported on August 16, 2011, in 2011 Los Angeles Daily Journal 12343, the Third Appellate District held that the evidence produced at trial was sufficient to establish that the limitations period had expired when defendant was prosecuted for violating section 288, subdivision (a), but the extension provisions applied, even though victim’s testimony was internally inconsistent regarding the extent of her molestation by defendant. (See People v. Ruiloba (2005) 131 Cal.App.4th 674, 681.)  No authority supported defendant’s claim that “substantial sexual conduct” cannot be established by evidence for which there is contradictory evidence. (Id.)  Corroborating evidence need not corroborate every element so long as it corroborates victim’s allegations that sexual acts occurred.  Additionally, the Court of Appeal found that defense counsel was not ineffective in failing to request an instruction requiring jury to find whether defendant engaged in substantial sexual conduct with victim when she was 8 years old.  The defendant suffered no prejudice from this omission since jury found victim to be a credible witness and victim claimed substantial sexual conduct had occurred when she was 8.  The court ordered restitution for noneconomic damages does not give rise to a jury trial right. Child molesters are not similarly situated with other criminals for purposes of calculating restitution for noneconomic damages.  The restitution order for $750,000 in noneconomic damages for 15 years of sexual abuse does not shock the conscience or suggest passion, prejudice, or corruption on the part of the trial court.  Victim restitution provisions of Marsy’s Law gave the victim the right to have her attorney participate in the restitution hearing, and that involvement did not invade the exclusive province of the district attorney’s prosecutorial authority. 24.   People v. Milward (2011)     Cal.4th    , reported on August 19, 2011, in 2011 Los Angeles Daily Journal 12548, the California Supreme Court held that an inmate serving a life sentence who attacked another inmate with a deadly weapon, could not be convicted both of violating section 4500 (assault with a deadly weapon or by means likely to inflict great bodily injury by a prisoner serving a life sentence) and section 245, subdivision (a)(1), because the latter is a lesser included offense to the former.  The court indicated that the phrase “other than a firearm” in section 245, subdivision (a)(1), is not an element of that offense.  As a result of the prohibition of simultaneous convictions for both the greater and the lesser offense (People v. Reed (2006) 38 Cal.4th 1224, 1227), the conviction of the greater offense is controlling, and the lesser offense, must be reversed. (People v. Moran (1970) 1 Cal.3d 755, 763.)

More here:
Criminal Law Case Summaries July – August 2011

Follow us on