Aiders & abettors - may be found guilty of lesser offense
People v. Nero (2nd Dist., 1/27/10, B206799) ___ Cal.App.4th ___
Aider and abettor may be found guilty of lesser homicide-related offense than actual perpetrator committed. Extends holding of People v. McCoy (2001) 25 Cal.4th 1111 (aider may be found guilty of greater offense).
Dismissal - on the basis of cooperation with police
People v. C.S.A. (1st Dist., 1/29/10, A122776) ___ Cal.App.4th ___
Law enforcement officers had no authority to promise that felony charge and related probation violations would be dismissed in exchange for cooperation and defendant's reliance on that unauthorized promise had no constitutional consequence permitting dismissal on due process grounds.
Disqualification - appearance of judicial bias
In re Freeman (Ca. Sup. Ct., 1/21/10, S150984) ___ Cal.4th ___
In light of Caperton v. A.T.Massey Coal Co. Inc. (2009) ___ U.S. ___, 129 S.Ct. 2252, Court holds that case did not present the "extreme facts" that require judicial disqualification under the due process clause. Even though Capterton does not require actual bias, the probability of bias must be so great as to be constitutionally intolerable. Defendant's remedy was disqualification under the state statutes.
Drugs - marijuana possession
People v. Kelly (Ca. Sup. Ct., 1/21/10, S164830) ___ Cal.4th ___
Health & Safety Code section 11362.77, a part of which limits the amount of marijuana a "qualified patient" may possess or cultivate, is invalid because it attempted to amend the Compassionate Use Act, Health & Safety Code section 11362.5, which was an initiative, without voter approval. But remainder of section 11362.77 need not be voided.
Ed. Note: Supreme Court misspelled Gerald Uelmen's last name. (Shame).
Drunk driving - prior dismissal
People v. Hernandez (4th Dist., 1/26/10, E047219) ___ Cal.App.4th ___
Defendant was charged with drunk driving as a felony due to 3 priors. After one prior was stricken, the offense became a misdemeanor, but the court still had jurisdiction to proceed. (See People v. Clark (1971) 17 Cal.App.3d 890, 896 [in pre-consolidation case, when felony and misdemeanor charged in same document, and felony dismissed, superior court still had jurisdiction to proceed].) Court also holds that Penal Code section 1387, subdivision (a) does not preclude DA from proceeding with misdemeanor even though prior misdemeanor complaint had been dismissed when DA discovered priors.
Drunk driving - substituting felonies with misdemeanors
People v. Powell (3rd Dist., 1/25/10, C057847) ___ Cal.App.4th ___
Trial court had jurisdiction to substitute lesser-included misdemeanors for felony DUI's for which there was insufficient evidence at trial, after granting defendant's motion for acquittal of the felony charges. Distinguishes People v. Garcia (1985) 166 Cal.App.3d 1056 and People v. McElroy (1989) 208 Cal.App.3d 1415, where there was a break between the dismissal and the subsequent filing.
Gangs - registration requirement
In re J.V. (4th Dist., 2/1/10, E047553) ___ Cal.App.4th ___
Minor found in contempt (as a crime, under Penal Code section 166(a)(4)) for violating gang injunction could be ordered to register as a gang member under Penal Code section 186.30. Question whether court had to inform him of gang requirement before accepting admission forfeited by failure to object, and by failing to show prejudice.
Homicide - attempted - insufficient evidence
People v. Leon (2nd Dist., 1/26/10, B211679) ___ Cal.App.4th ___
Evidence insufficient to prove defendant intended to kill both victims when he fired a single shot that could not have hit both. Distinguishes People v. Smith (2005) 37 Cal.4th 733, where single shot could have killed both victims.
Probation conditions - constitutional rights violations
People v. Leon (6th Dist., 2/2/10, H034066) ___ Cal.App.4th ___
Probation condition prohibiting defendant from associating with gang members, possessing gang paraphernalia, frequenting areas of gang-related activity and appearing in any court proceeding unless he is a party, violate due process rights because they are vague. Reviewing court narrows them down. Court proceeding condition also violates First Amendment. No forfeiture even though counsel did not object. (In re Sheena K. (2007) 40 Cal.4th 875 [constitutional challenges to probation conditions involving pure questions of law are not forfeited despite failure to assert them in trial court].)
Retroactivity - of Cunningham on collateral review
In re Watson (4th Dist., 2010, D055404) ___ Cal.App.4th ___
Cunningham v. California (2007) 549 U.S. 270 applies on collateral (habeas) review of judgment that became final before Cunningham but after Apprendi v. New Jersey (2000) 530 U.S. 466. Apprendi established a new rule of law for purposes of retroactivity analysis, that is, that any fact (other than a prior conviction) that increases maximum penalty for crime must be charged in accusatory pleading, submitted to jury, and proven beyond reasonable doubt.
Search & seizure - DNA material
People v. Robinson (Ca. Sup. Ct., 1/25/10, S158528) ___ Cal.App.4th ___
Lawfully convicted and incarcerated felon does not have Fourth Amendment right to prevent state authorities from collecting DNA blood sample. Even if he did, suppression is not the remedy, citing to Hudson v. Michigan (2006) 547 U.S. 586 [statutory knock-notice violation does not necessarily trigger exclusionary rule] and Herring v. United States (2009) ___ U.S. ___, 129 S.Ct. 695.
Sex offenders - Jessica's Law
In re E.J. (Ca. Sup. Ct., 2/1/10, S156933) ___ Cal.4th ___
Penal Code section 3003.5 (Proposition 83 (Jessica's Law)) which restricts where certain sex offenders subject to lifetime registration of Penal Code section 290 may live is not impermissible even though it was applied retroactively. Issue whether statute is vague and overbroad remanded to courts of appeal to decide.
Statute of limitations - effect of DNA warrant
People v. Robinson (Ca. Sup. Ct., 1/25/10, S158528) ___ Cal.App.4th ___
Jon Doe warrant that described defendant by DNA profile was sufficiently descriptive to to indicate the identification of the person whose arrest is ordered under Penal Code section 804, subdivision (d) and satisfies statute of limitations.
Theft - embezzlement
People v. Sisuphan (1st Dist., 1/29/10, A122351) ___ Cal.App.4th ___
Penal Code section 512 does not provide a defense to embezzlement even if evidence shows defendant intended to return the money and did so before charges filed (defendant had taken the money to get a co-worker fired). Penal Code section 512 states that intent to return property is not a defense if property if it is not returned before charges brought. Judge Martin Jenkins of the First District does a really nice job analyzing the legislative history back to the Field Code of New York (after which a lot of the CA Penal Code is modellled).
Vicinage - offenses committed in two counties
People v. Delgado (4th Dist., 2/1/10, G041561) ___ Cal.App.4th ___
Penal Code section 784.7 allows prosecution of sex offenses in any county in which any of the offenses occurred. Applying the statute to crimes committed before enactment does not violate ban against ex post facto laws.
Witnesses - prejudicial conduct by police officer witness
People v. Navarrete (2nd Dist., 2/1/10, B210691) ___ Cal.App.4th ___
"Because of willful misconduct on the witness stand by a Maywood police officer [Detective Andrew Serrata, named in the opinon], who in front of the jury intentionally violated a court order suppressing a statement by appellant, we reverse for retrial." The trial court had ruled that the defendant's statement could not be used because it did not believe that Det. Serrata had given defendant Miranda rights. When asked a question during trial (which did not call for the answer given), the detective answered, "Well, for several reasons, the first of which it's a court rule that the defendant's statement is inadmissible. So I can't state the first reason." Instead of granting a mistrial, the trial court ordered the officer's testimony stricken. Even after finding out the misconduct was intentional (Serrata told another DA that he "was going to show" the court), Los Angeles Superior Court Judge Patrick T. Meyers still refused to grant a mistrial. Court of appeal held the jury instructions were not enough to "undo the damage Detective Serrata inflicted." Jury's belief that a defendant may have confessed "eviscerates the presumption of innocence." (Citing to Arizona v. Fulminante (1991) 499 U.S. 279, 311.)
