Counsel - defendant did not make Marsden motion
People v. Carter (B210203, 2d Dist, 2/26/10) Cal.App.4th
Defendant did not make a Marsden motion (to replace appointed counsel) at his arraignment. Even though he used term "Marsden hearing" he actually asked to represent himself, which he was allowed to do. Duty to conduct inquiry only arises when defendant either directly or impliedly asserts counsel's performance has been so inadequate as to deny him constitutional right to counsel.
Discovery - examination of entire diary
People v. Cissna (D053464, 4th Dist, 2/26/10) Cal.App.4th
When DA introduced part of victim's diary into evidence, defense counsel had right to examine entire diary, subject to appropriate protective orders. Trial court erred in refusing to reveal rest of diary. Counsel was entitled to examine it under Penal Code section 1054.1(c)(f) (all relevant real evidence must be disclosed). When state has compelling interest in maintaining privacy of materials, court may review in camera. (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 59-61.) Here, because prosecutor actually introduced parts of the diary privacy protection was waived. (C.f., Taus v. Loftus (2007) 40 Cal.4th 683, 734 (a diary may be afforded privacy protection).
Hearsay - analyst's report
People v. Benitez (G041201, 4th Dist, 2/24/10) Cal.App.4th
Defendant was denied constitutional confrontation right as interpreted by Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, 129 S.Ct. 2527 when trial court allowed crime lab supervisor to testify that substance was methamphetamine based on notes made by an analyst who did not testify, and allowed document entitled "Request for Analysis" signed by analyst to be introduced. Court of appeal recognizes that People v. Geier (2007) 41 Cal.4th 555 has been overruled by Melendez-Diaz. "In this case, the fact that the analyst's laboratory notes were made in the regular course of business, pursuant to standardized scientific procedure, does not eliminate their testimonial nature. The trial court erred, therefore, in admission of the RFA as a business record without affording appellant an opportunity to cross-examine its creator." Contemporaneous nature of lab report does not eliminate testimonial nature. Cross-examination of supervisor does not satisfy Sixth Amendment. Error not harmless beyond reasonable doubt because testimony crucial to establishing nature of drug.
Juror misconduct - prejudicial
People v. Cissna (D053464, 4th Dist, 2/26/10) Cal.App.4th
Juror violated admonition not to discuss case by talking about it daily with nonjuror friend. See People v. Bradford (2007) 154 Cal.App.4th 1390, 1413-1414. Presumption of prejudice established by misconduct was not rebutted by prosecution. If record shows substantial likelihood that even one juror was impermissibly influenced to the defendant's detriment, it does not matter if unbiased jury would have reached same result. Here misconduct was pervasive (occurring every day) and substantive (involving discussions about merits of case). In addition, juror's failure to comply with admonitions not to discuss case "casts serious doubts on his willingness to follow the court's other instructions." The friend to whom juror spoke became in effect a 13th juror, who had not been vetted through voir dire. San Diego Judge Michael Wellington erred in denying new trial motion. Conviction reversed.
Jury instructions - failure to instruct with CALCRIM 101
People v. Carter (B210203, 2d Dist, 2/26/10) Cal.App.4th
Trial court failed to pre-instruct as required by Penal Code section 1122(a) when it did not give CALCRIM 101. Even though ordinarily a jury has discretion in choosing when to instruct, Legislature requires that juries be instructed on their duties before evidence is taken. Instruction must be given sua sponte, and defendant's failure to request it does not forfeit right to raise error on appeal. Error harmless here, however, under either federal or state standard because the trial was short, and the jury deliberated less than an hour.
Priors - fed definition of violent felony
Johnson v. United States (08-6925, 3/2/10) U.S.
Florida felony battery committed by actually and intentionally touching does not have element of use of physical force against another (18 U.S.C. section 924(e)(2)(B)(i) and does not constitute a "violent felony" under Armed Career Criminal Act.
Search & seizure - traffic stop and warrant
People v. Carter (B210203, 2d Dist, 2/26/10) Cal.App.4th
When evidence comes to light as result of unlawful traffic stop trial court must perform "attenuation analysis" to determine whether chain of causation has become so attenuated or has been interrupted by some intervening circumstance so as to remove the "taint" on the evidence caused by original illegality. (People v. Brendlin (2008) 45 Cal.4th 262, 269.) In the absence purposeful or flagrant police misconduct, discovery of an outstanding arrest warrant attenuates the taint of an antecedent unlawful traffic stop. (Id. at pp. 265, 269.) In any event, stop was proper due to tinted front and side windows. (VC 26708(a); People v. Niebauer (1989) 214 Cal.App.3d 1278.)
Sex offenses - statute of limitations etc.
People v. Perez (H033386, 6th Dist, 2/24/10) Cal.App.4th
Because defendant charged with Penal Code section 288(b)(1) against more than one victim in same proceeding is subject to life imprisonment, there is no statute of limitations. (PC 799.) Follows reasoning of People v. Jones (2009) 47 Cal.4th 566 and People v. Brookfield (2009) 47 Cal.4th 583.
Defendant's threat to tell victim's grandmother about theft of coins was sufficient evidence of coercion. Child sexual abuse accomodation syndrome evidence (CSAAS) properly admitted.
Theft - no double convictions for theft and receiving
People v. McPike (A122030, 1st Dist, 2/26/10) Cal.App.4th
Once again, a judge allows a conviction for petty theft and receiving the same property to stand. "It is well-established that, subject to exceptions not relevant here, a defendant may not be convicted of stealing and receiving the same property. (People v. Allen (1999) 21 Cal.4th 846, 853 (Allen); People v. Garza (2005) 35 Cal.4th 866, 874-875 (Garza); People v. Jamarillo (1976) 16 Cal.3d 752, 757.)" Petty theft reversed and receiving allowed to stand.
===============
Grace Lidia Suarez
Attorney at Law
San Francisco CA
