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• 20 Oct
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By Gary Mandinach, Attorney at Law, California Appellate Project, Los Angeles, California 1. People v. Moses (2011) Cal.App.4th , reported on September 21, 2011, in 2011 Los Angeles Daily Journal 14260, the Fourth Appellate District, Division 4 held that a probation condition barring the defendant from possessing “sexually explicit movies, videos, material, or devices,” which was modified to include a knowledge requirement, was not unconstitutionally vague. “Devices,” in context, was not so vague that the defendant would not know how to comply. A condition restricting the defendant’s ability to associate with “minors,” which was modified to include a knowledge requirement, was not unconstitutionally vague. Absent language to the contrary, court will apply the statutory definition of “minors” as persons under the age of 18 years of age. The condition requiring the defendant to obtain a probation officer’s permission to marry a person with a minor child violates constitutional right to marry. (Loving v. Virginia (1967) 388 U.S. 1, 12.) A condition barring the defendant from being “in contact with occupants in vehicles” while a pedestrian and from being “in contact with pedestrians” were overly broad as they barred legal conduct unrelated to the crime of child molestation. (In re White (1979) 97 Cal.App.3d 141, 146; People v. Norris (1978) 88 Cal.App.3d Supp. 32, 41-42 [condition prohibits otherwise legal activities and have no relationship to the crime appellant committed.]) Finally, a condition barring the defendant from hitchhiking was not overbroad, given the nature of the crime, it was a reasonable restriction to keep him from opportunities to be in a car alone with a minor. 2. People v. Gari (2011) Cal.App.4th , reported on September 26, 2011, in 2011 Los Angeles Daily Journal 14462, the Fourth Appellate District, Division 3 held that section1016.5, which requires that alien defendants be admonished that a guilty or no-contest plea may affect immigration status, does not require that naturalized citizen, which the defendant became in 1989, be admonished that a plea to a crime committed prior to the date of naturalization may result in revocation of citizenship. In this case the defendant did not show a newly discovered fact which would have prevented the rendition of the judgment. (People v. Kim (2009) 45 Cal.4th 1078; People v. Shipman (1965) 62 Cal.2nd 226.) The defendant’s assertions that he pled guilty to charged offenses without paying heed to the dates the prosecution alleged he had committed them, because he lacked knowledge of the legal effect that pleading guilty to those offenses might have on his citizenship status, were insufficient to support a writ of coram nobis or any similar form of nonstatutory equitable relief based on equity and fairness. 3. People v. Aguirre (2011) Cal.App.4th , reported on September 27, 2011, in 2011 Los Angeles Daily Journal 14534, the Second Appellate District, Division 8 held that the trial court did not err in denying appellant’s motion to withdraw his plea in state court, as any subsequent indictment in federal court is not a direct consequence of his plea and does not “follow inexorably” from his plea. (See People v. Barella (1999) 20 Cal.4th 261, 270; People v. Moore (1998) 69 Cal.App.4th 626, 630.) The trial court is not obligated to advise a defendant that his plea may be used against him in federal proceedings. Federal indictment did not deprive defendant of the benefit of his plea to state charges where defendant’s sentence in the state case was within the parameters of the plea agreement. (See People v. Gallego (1979) 90 Cal.App.3d Supp. 21, 29, 33.) 4. People v. Nottoli (2011) Cal.App.4th , reported on September 27, 2011, in 2011 Los Angeles Daily Journal 14521, the Sixth Appellate District held that the trial court erred in granting the defendant’s motion to suppress. The defendant was arrested for being under the influence of a controlled substance. The arrest for that offense provided the officers a reasonable basis for believing that evidence relevant to that type of an offense might be in his vehicle. (Arizona v. Gant (2009) __ U.S. __ [129 S.Ct., 1710, 173 L.Ed.2d 485].) As a result, giving officers unqualified authority to search the passenger compartment of the vehicle and any container found therein, including defendant’s cell phone. (See United States v. Finely (5th Cir. 2007) 477 F.3d 250; see also People v. Diaz (2011) 51 Cal.4th 84 [in particular warrantless searches, the police may search every purse, briefcase, or other container within the car’s passenger compartment].) 5. People v. Espiritu (2011) Cal.App.4th , reported on September 29, 2011, in 2011 Los Angeles Daily Journal 14716, the Second Appellate District, Division 5 held that the trial court erred when it sent the jury back for further deliberations after they returned what appeared to be an inconsistent verdict of “not true” for the personal use of a deadly weapon enhancement within the meaning of section 12022, subdivision (b)(1). The jury returned verdicts of attempted voluntary manslaughter and battery with serious bodily injury. After the jury deliberated further, they came back with a true finding on the aforementioned enhancement. Pursuant to section 1161, once the jury returns a verdict of acquittal, the court cannot require the jury to reconsider it, but must order the judgement be entered on the verdict. (People v. Blair (1987) 191 Cal.App.3d 832, 939.) Even though defense counsel did not object to further deliberations, that the court was improperly directing the jury to reconsider the “not true” verdict, the objection is not necessary to preserve a claim that the defendant’s substantial rights have been violated. (People v. Bareraza (1979) 23 Cal.3d 675, 683-684.) Application of the forfeiture rule is not automatic, as the appellate court has the discretion to excuse forfeiture in cases presenting an important legal question. (Canaan v. Abdelnour (1985) 40 Cal.3d 700, 722, fn. 17.) 6. People v. Robinson (2011) Cal.App.4th , reported on September 29, 2011, in 2011 Los Angeles Daily Journal 4712, the Second Appellate District, Division 8 held that possession of firearm by felon (§12021, subd. (a)(1)), is a crime of moral turpitude for impeachment purposes. (People v. Littrel (1986) 185 Cal.App.3d 699, 702-703.) Admission of the prior conviction for possession of firearm by felon was not an abuse of discretion, under Evidence Code section 352, where defendant placed his credibility in issue by (1) disputing virtually every fact to which prosecution witnesses testified, (2) the conviction was only three years old, and (3) the prior crime was not at all similar to the current charge of battery on a correctional officer. 7. People v. Boulter (2011) Cal.App.4th , reported on September 30, 2011, in 2011 Los Angeles Daily Journal 14802, the Second Appellate District, Division 5 held that the trial court did not err in denying the motion to suppress, finding a valid administrative search of a jail house locker into which defendant, a jail visitor, put his belongings. As a result of the obvious need for a jail to maintain security, the defendant was presumed to know that upon entering jail property he and his belongings were subject to search, and therefore he implicitly consented to the search or had a reduced expectation of privacy. Defendant did not have a reasonable expectation of privacy with respect to possessions he placed in a locker on the jail property that was controlled by the jail. Purpose of the locked lockers was to secure items from others, including jail visitors, not to insulate such items from searches by jail personnel. 8. People v. Uribe (2011) Cal.App.4th , reported on October 3, 2011, in 2011 Los Angeles Daily Journal 14853, the Sixth Appellate District held that the trial court erred in dismissing the matter due to prosecutorial misconduct, or outrageous governmental misconduct since it did not impair appellant’s substantial due process rights under Rochin v. California (1952) 342 U.S. 165.) Prosecutorial misconduct that impairs a defendant’s constitutional right to a fair trial may constitute outrageous governmental conduct warranting dismissal, but here the prosecutor’s false testimony in a peripheral hearing, pertaining to the withholding of Brady material was not shown to have prejudiced defendant’s right to a fair trial. (People v. Kasim (1997) 56 Cal.App.4th 1360, 1287 [dismissal of charges is an extraordinary remedy, which is reserved for the few cases where conduct by the prosecution has completely eliminated the possibility of a fair retrial].) The determination of whether the government engaged in outrageous conduct is a mixed question, requiring that a trial court engage in the consideration and weighing of the evidence and assessing the credibility of the witnesses to determine factually whether, and to what extent, the governmental misconduct occurred, and whether the governmental misconduct constitutes outrageous conduct in the constitutional sense of violating the defendant’s due process rights. The first, factual determination is subject to a deferential standard of review, but the second involves the application of law to the established facts and is primarily a legal question subject to independent review. 9. People v. Larkins (2011) Cal.App.4th , reported on October 6, 2011, in 2011 Los Angeles Daily Journal 15024, the Fourth Appellate District, Division 2 held that the trial court did not abuse its discretion in allowing lay witness to testify that he recognized a man depicted in security video as the defendant because he had seen the defendant in 20-30 videos from other gyms, even though the witness had never seen the defendant in person. The Court of Appeal disagreed with appellant that People v. Mixon (1982) 129 Cal.App.3d 118, 128 indicated that the opinion of the identity of persons depicted in surveillance photos or video is only admissible if the witness testifies from personal knowledge of the defendant’s appearance at or before the time the photo is taken. 10. People v. Quiroz (2011) Cal.App.4th , reported on October 10, 2011, in 2011 Los Angeles Daily Journal 15077, the Fourth Appellate District, Division 2 held that a probation condition which requires a defendant to “[s]ubmit a record of income and expenditures to the Probation Officer as directed” was not unconstitutionally vague or overbroad, and did not violate section 1203.1, subdivision (d). In the context of nonpayment of a fine or restitution, it requires an ability to pay, and a court could not find ability to pay in the absence of information about the defendant’s expenditures for necessities as well as income. 11. People v. Valenzuela (2011) Cal.App.4th , reported on October 13, 2011, in 2011 Los Angeles Daily Journal 15143, the Second Appellate District, Division 1 held that the trial court did not have a sua sponte duty to give an imperfect-self-defense instruction under circumstances in which, if the defendant had actually acted under fear of imminent bodily harm, such fear would have been reasonable, and not unreasonable. (People v. Rogers (2006) 39 Cal.4th 826, 883.) If the court instructs on actual or perfect self-defense it does not mean that it must instruct on imperfect self-defense. (People v. Rodriguez (1997) 53 Cal.4th 1250, 124-1255.) The trial judge did not err in instructing jury on mutual combat, as it relates to self-defense, where there was substantial evidence of mutual combat, including an exchange of gunfire. The trial court erred in imposing a street-gang enhancement under section 186.22, subdivision (b)(5) (15-L MEPD), where a section 12022.53, subdivisions (d) and (e)(1) was also imposed and there was no finding that the defendant personally fired a gun. (People v. Brookfield (2009) 47 Cal.4th 583, 590.) 12. People v. Davis (2011) Cal.App.4th , reported on October 14, 2011, in 2011 Los Angeles Daily Journal 15195, the Third Appellate District held that the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits. (Bullcoming v. New Mexico (2011) 564 U.S. ___ [180 L.Ed.2d 610].) Reports prepared by medical personnel, generated in the ordinary course of a hospital’s business of treating patients for medically related purposes, are not affidavits, and such documents are not testimonial in nature. 13. People v. Williams (2011) Cal.App.4th , reported on October 17, 2011, in 2011 Los Angeles Daily Journal 15239, the Second Appellate District, Division 8 held that the trial court did not err in denying the defendant’s motion to withdraw his plea, within the meaning of section 1018, as untimely, since the motion was not made (1) before judgment was entered, or (2) within 6 months if entry of judgment is suspended. The Court of Appeal found that the trial court did not suspend entry of judgment when it suspended imposition of sentence by placing the defendant on probation. The defendant wanted to withdraw his plea to take advantage of the amendment to section 666. 14. People v. Lopez (2011) Cal.App.4th , reported on October 18, 2011, in 2011 Los Angeles Daily Journal 15261, the Fifth Appellate District held that CALCRIM 505, 571, and 604 correctly state the law on imperfect self defense in terms of common, everyday usage and do not misstate the concept of imminent peril. (People v. Aris (1989) 215 Cal.App.3d 1178, 1187 [the peril must appear to the defendant as immediate and present and not prospective or even in the near future. An imminent peril is one that, from appearances, must be instantly dealt with.]) 15. People v. Hoover (2011) Cal.App.4th , reported on October 20, 2011, in 2011 Los Angeles Daily Journal 15439, the Second Appellate District, Division 6 held that the trial court did not err in finding that the defendant was able to pay probation supervision and investigation fees at the rate of $30 per month, as it was supported by evidence that the defendant possessed a cell phone and a car and lived in an expensive area. Requiring the defendant to pay fees at a rate of $30 per month, while they accrued at the rate of $205 per month, was not unreasonable where the total fees would only reach $4,615. Section 1203.1b, subdivision (e)(2) precludes the court from basing a finding of ability to pay on a projection of the defendant’s financial condition more than one year into the future, but it does not preclude the court from requiring that he pay the costs over a period of more than one year where his current financial situation suggests an ability to do so. 16. People v. Miranda (2011) Cal.App.4th , reported on October 20, 2011, in 2011 Los Angeles Daily Journal 15403, the Second Appellate District, Division 5 held that substantial evidence supported jury’s findings that a 15-year-old sexual assault victim, who suffered from cerebral palsy resulting in severe communication difficulties combined with physical disabilities, was mentally incapable of consenting to the sexual offenses committed upon her by defendant. The existence of capacity to consent is a question of fact. (People v. Griffin (1897) 117 Cal. 583, 585.) The victim was assaulted by her grandfather, in a small trailer, with her brother nearby. The victim could not articulate at trial what had happened to her, and had difficulty in processing what was asked of her and formulating responses to questions posed during trial. The prosecution was not required to prove that defendant actually attempted to penetrate victim with his penis to prove attempted rape. (People v. Scott (2011) 52 Cal.4th 452, 488.) The trial court had no obligation to provide a definition of “legal consent” where victim’s mental capacity to give such consent was not a contested issue and no issue of actual consent was presented; plain meaning of incapacity to give legal consent, because of a mental disability does not have a technical definition requiring further instruction in the absence of a defense request or jury inquiry as to the meaning of the phrase. (See People v. Martinez (2010) 47 Cal.4th 911, 955.) The Court of Appeal found that the trial court did not abuse its discretion in excluding evidence, under Evidence Code section 352, that the victim had been the subject of a prior sexual abuse investigation where the value of the proffered evidence was questionable, in that, no clear showing of falsity was made, and delving into the issue had the potential for confusing the jury and consuming an undue amount of time. (See People v. Bittaker (1989) 48 Cal.3d 1046, 1097 [prior rape complaints do not reflect on a credibility unless proven to be false].) A defendant who committed acts upon a victim incapable of giving consent due to a mental disability is not similarly situated to a defendant who engages in consensual sexual conduct with a minor, and so requirement the former register as a sex offender, but not the latter, does not violate equal protection. 17. In re L.K. (2011) Cal.App.4th , reported on October 20, 2011, in 2011 Los Angeles Daily Journal 15427, the Fifth Appellate District held that, on the one hand, there was insufficient evidence to support the juvenile court’s conclusion that minor’s actions in running over 17-month old child with her mother’s truck violated the direct infliction prong of section 273a, subdivision (a), since nothing in the record indicated that minor could see victim or otherwise knew his location when the truck moved. (See People v. Valdez (2002) 27 Cal.4th 778, 783 [4 types of conduct described].) Nonetheless, there was substantial evidence to support the court’s finding that the defendant violated the section by willfully permitting victim to suffer while she failed to alert others to his injuries. (Ibid.)

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Criminal Law Case Summaries – September-October 2011