Reasonable Doubts - March 23, 2010
Confrontation - preliminary hearing testimony & other statements
People v. Lynch (D053727, 4th Dist, 3/16/10) Cal.App.4th
Trial court properly found witness unavailable, so preliminary hearing testimony was admissible. No denial of confrontation right because interest and motive for cross-examination at prelim was same as at trial, so defendant had a prior opportunity to cross-examine. Agrees with People v. Seijas (2005) 36 Cal.4th 291, 303.) Other statements made by victim to various people were admissible as prior inconsistent statements or were harmless.
Fines & fees - retroactive imposition
People v. Fleury (C061629, 3d Dist, 3/25/10) __ Cal.App.4th ___
Imposition of Govt. Code section 70373 $30 court facilities assessment for crimes committed before its enactment does not violate ex post facto prohibitions because it is not intended as punishment and is not so punitive as to override legislative intent. (People v. Alford (2007) 42 Cal.4th 749, 756.)
Juveniles - deferred entry of judgment
In re R.C. (A123675, 1st Dist, 3/19/10) ___ Cal.App.4th ___
Court did not abuse discretion to determine whether minor eligible for deferred entry of judgment because he admitted a misdemeanor offense, not a felony.
Lesser includeds - assault w/in assault by life prisoner not
People v. Milward (C058326, 3d Dist, 3/22/10) ___ Cal.App.4th ___
Rejecting AG's concession, Third District holds that life prisoner can commit assault with deadly weapon in violation of Penal Code section 4500 without committing PC 245(a)(1) assault with deadly weapon, so 245(a)(1) is not lesser included. People v. Noah (1971) 5 Cal.3d 469 is no longer controlling because of statutory changes to 245(a)(1) which now exclude assaults with firearms. CALCRIM 875 is incomplete and must be rewritten to exclude firearms from 245(a)(1). Note: 245(a)(2) proscribes assaults with firearms.
Statute of limitations - remand to trial court
People v. Lynch (D053727, 4th Dist, 3/16/10) Cal.App.4th
Case remanded to trial court to determine whether counts other than attempted murder, which on the face of charging instrument, were not charged within statute of limitations, were nevertheless valid because the statute may have been tolled by the issuance of a warrant. Defense counsel failed to object on limitations grounds in trial court, so court never made a ruling. Issue not forfeited, as it may be raised at any time. (People v. Williams (1999) 21 Cal.4th 335.)
