SELECTED PENDING CASES IN THE U.S. AND … · SELECTED PENDING CASES IN THE U.S. AND CALIFORNIA SUPREME COURTS Jeremy Price and Tara Mulay Staff Attorneys ... Retroactivity of Padilla

FIRST DISTRICT APPELLATE PROJECT

TRAINING SEMINARJanuary 11, 2013

SELECTED PENDING CASES IN THE U.S. ANDCALIFORNIA SUPREME COURTS

Jeremy Price and Tara MulayStaff Attorneys

First District Appellate ProjectJanuary 2013

TABLE OF CONTENTS

I. U.S. SUPREME COURT CERT. GRANTED CASES: Selected Highlights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Apprendi/Blakely. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Speedy Trial/Failure to Fund Counsel for Capital Defendant. . . . . . . . . . . . . . . . . 2Ex Post Facto Clause - Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Double Jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Conspiracy - Statute of Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Retroactivity of Padilla v. Kentucky.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Federal Habeas: Adjudication on the Merits by State Court. . . . . . . . . . . . . . . . . . 5Fourth Amendment: Arrestee DNA Samples. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Fourth Amendment: Warrantless Blood Sample. . . . . . . . . . . . . . . . . . . . . . . . . . . 6Fourth Amendment: Execution of Warrant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Fourth Amendment: Dog Sniff Cases.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. CALIFORNIA SUPREME COURT – REVIEW GRANTED CASES: Selected Highlights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Search and Seizure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Guilty Pleas.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10Wheeler/Batson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Computer-Generated Evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15Psychotherapist-Patient Privilege. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16Evidence of Post-Arrest, Pre-Miranda Silence. . . . . . . . . . . . . . . . . . . . . . . . . . . 17Aiding and Abetting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18Active Participation in Criminal Street Gang. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Robbery.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21Mayhem. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22Homicide.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23Lesser Included Offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26Instruction on Defendant’s Extrajudicial Statements. . . . . . . . . . . . . . . . . . . . . . . 27Sufficiency of the Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28Proving Prior Convictions with Faxed Copies of Certified Records. . . . . . . . . . . 31Dual Use of Firearm Enhancements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32Prior Serious Felony Conviction Enhancement. . . . . . . . . . . . . . . . . . . . . . . . . . . 33Romero Motion to Dismiss Prior Strike Convictions. . . . . . . . . . . . . . . . . . . . . . . 34Right to Jury Trial Prior to Imposition of Discretionary Sex OffenderRegistration.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

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Fines and Fees: Sufficiency of Evidence of Ability to Pay. . . . . . . . . . . . . . . . . . 36Probation Conditions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37Probation Revocation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37Motion to Vacate Plea for Failure to Advise of Immigration Consequences.. . . . 39Double Jeopardy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41Dismissal of Sexually Violent Predator Petitions Following Reevaluation. . . . . . 42

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I. U.S. SUPREME COURT CERT. GRANTED CASES: Selected Highlights

The summaries below are based in large part on the Granted and Noted List,October 2012 Term, which is published on the Supreme Court’s website,http://www.supremecourt.gov/orders/, and on information obtained from SCOTUSBlog,http://www.scotusblog.com/, which provides links to opinions below, briefing, articles,and other relevant material. This is not a comprehensive list of all criminal cases pendingbefore the Court. It focuses on those cases of most interest to California appellatepractitioners.

Apprendi/Blakely

Alleyne v. United States, 11-9335 (cert. granted October 5, 2012)

Question Presented: Whether the United States Supreme Court’s decision inHarris v. United States, 536 U.S. 545 (2002), holding that the Constitution doesnot require facts which increase a mandatory minimum sentence to be determinedby a jury, should be overruled.

Status: Set for argument January 14, 2013

Opinion Below: unpublished (457 Fed. Appx.348 (4 Cir. 2011) No. 11-4208). th

Note: Arguably, there is a logical inconsistency between the Apprendi/Blakelyholdings that the Sixth Amendment guarantees that a jury find beyond a reasonabledoubt all facts necessary to increase the maximum sentence for an offense and theholding of Harris v. United States, supra, that the Sixth Amendment provides nosuch guarantee for facts which trigger a mandatory minimum sentence. As aresult, defense attorneys have for years been filing cert petitions asking theSupreme Court to reconsider Harris, and the Court has finally taken one of thesecases. Currently, there is speculation that Justice Breyer, who cast one of the fivemajority votes in Harris, might be ready to change his position.

The facts of Alleyne illustrate the arguable unfairness and inconsistency ofthe current state of the law. Alleyne was convicted of robbery and using orcarrying a firearm in relation to a crime of violence. The judge added eighty-fourmonths to his basic sentence for the robbery, after the judge found, contrary to thejury, that Alleyne would have known that his accomplice in the robbery wouldbrandish a firearm. In making that finding, the judge said he was bound by Harrisbut that he did not “like being the reverser of juries.”

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In Alleyne, the Supreme Court may have to grapple with the question ofwhether a jury must find any fact necessary to increase the floor sentence within arange or solely any fact necessary for application of a mandatory minimum (anincrease of the minimum within a range).

Speedy Trial/Failure to Fund Counsel for Capital Defendant

Boyer v. Louisiana, 11-9953 (cert. granted October 5, 2012)

Question Presented: Whether a state’s failure to fund counsel for an indigentdefendant for five years, particularly where failure was the direct result of theprosecution’s choice to seek the death penalty, should be weighed against the statefor speedy trial purposes?

Status: Set for argument January 14, 2013

Opinion Below: State v. Boyer (La.Ct.App. 2011) 56 So. 3d 1119

Note: For five years, capital charges were pending against Boyer and, due to asystemic breakdown in funding of indigent counsel for capital defendants inLouisiana, Boyer had no funding for counsel. Funding was provided only whenthe state agreed to reduce the charges to non-capital murder. The Louisiana ThirdCircuit Court of Appeal found that the lack of funding was beyond the control ofthe state, i.e., the district attorney’s office. The Supreme Court in this case willaddress whether that systemic failure was the fault of the state and, if so, whatimpact that failure should have on the Barker v. Wingo (1972) 407 U.S. 514speedy trial balancing process.

Ex Post Facto Clause - Sentencing

Peugh v. United States, 12-62 (cert. granted November 9, 2012)

Question Presented: Does a sentencing court violate the ex post facto clause byusing the U.S. Sentencing Guidelines in effect at the time of sentencing rather thanthe Guidelines in effect at the time of the offense, if the newer Guidelines create asignificant risk that the defendant will receive a longer sentence?

Status: Set for argument February 26, 2013.

Opinion Below: United States v. Peugh (7 Cir. 2012) 675 F.3d 736th

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Note: As summarized by Peugh in his cert. petition:

The U.S. Sentencing Guidelines Manual directs a court to “use the GuidelinesManual in effect on the date that the defendant is sentenced” unless “the courtdetermines that use of the Guidelines Manual in effect on the date that thedefendant is sentenced would violate the Ex Post Facto Clause of the United StatesConstitution.” Eight courts of appeals have held that the Ex Post Facto Clause isviolated where retroactive application of the Sentencing Guidelines creates asignificant risk of a higher sentence. In the decision below, however, the SeventhCircuit has held that the Ex Post Facto Clause is never violated by retroactiveapplication of the Sentencing Guidelines because the Guidelines are advisory, notmandatory.

Double Jeopardy

Evans v. Michigan, 11-1327 (cert. granted June 11, 2012)

Question Presented: Does the Double Jeopardy Clause bar retrial after the trialjudge erroneously holds a particular fact to be an element of the offense and thengrants a midtrial directed verdict of acquittal because the prosecution failed toprove that fact?

Status: Argued November 6, 2012

Opinion Below: People v. Evans (2012) 491 Mich. 1, 810 N.W.2d 535

Note: The United States Supreme Court has long held that double jeopardy barsretrial when defendants have been acquitted at the close of the prosecution’s casebased upon a trial judge’s erroneous evidentiary rulings concerning an element ofthe underlying offense. (See, e.g., Arizona v. Rumsey (1984) 467 U.S. 203; Smalisv. Pennsylvania (1986) 476 U.S. 140; and Smith v. Massachusetts (2005) 543 U.S.462.) In Evans, the Supreme Court will need to determine whether there is anymeaningful distinction which would allow retrial when the trial judge insteaderroneously added an element to the charged offense in directing a judgment ofacquittal at the close of the prosecution’s case.

Conspiracy - Statute of Limitations

Smith v. United States, 11-8976 (cert. granted June 18, 2012)

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Question Presented: Whether withdrawing from a conspiracy prior to the statuteof limitations period negates an element of a conspiracy charge such that, once adefendant meets his burden of production that he did so withdraw, the burden ofpersuasion rests with the government to prove beyond a reasonable doubt that hewas a member of the conspiracy during the relevant period – a fundamental dueprocess question that is the subject of a well-developed circuit split.

Status: Argued November 6, 2012.

Opinion Below: United States v. Moore (D.C. Cir. 2011) 651 F.3d 30

Note: Smith was convicted of conspiracy and numerous other crimes involvingfifteen defendants over ten years, but he was in prison for the last six years, raisingissues regarding his potential withdrawal from the conspiracy and whether theprosecution had proved he committed the offense during the five-year statute oflimitations period.

This case raises one of those thorny questions regarding how to define an “element” of the offense and to distinguish facts which may give rise to an

affirmative defense, which the defendant may have to prove, from facts whichmust be considered elements. The inquiry in the present case involves whether thefederal crime in question, conspiracy, includes an element of participation duringthe limitations period or merely provides the defendant with the opportunity topresent an affirmative defense of withdrawal.

Retroactivity of Padilla v. Kentucky

Chaidez v. United States, 11-820 (cert. granted April 30, 2012)

Question Presented: In Padilla v. Kentucky (2010) 130 S.Ct. 1473, the U.S.Supreme Court held that criminal defendants receive ineffective assistance ofcounsel under the Sixth Amendment when their attorneys fail to advise them thatpleading guilty to an offense will subject them to deportation. The questionpresented in this case is whether Padilla applies to persons whose convictionsbecame final before its announcement.

Status: Oral argument held on November 1, 2012.

Opinion Below: Chaidez v. United States (7 Cir. 2011) 655 F.3d 684 th

Note: In this case, which will have an impact on a large number of federal

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defendants who are immigrants, the United States Supreme Court will decidewhether the decision in Padilla v. Kentucky announced a “new rule” which cannotbe applied retroactively to a collateral attack on a prior conviction under Teague v.Lane (1989) 489 U.S. 288 or simply applied the ineffective assistance of counselstandard established long ago in Strickland v. Washington (1984) 466 U.S. 668. Chaidez will not necessarily determine whether California courts will applyPadilla retroactively. California courts are “free to give greater retroactive impactto a decision than the federal courts choose to give.” (In re Johnson (1970) 3Cal.3d 404, 415; see also Danforth v. Minnesota (2008) 552 U.S. 264.) TheCalifornia Supreme Court’s “new rule” retroactivity test can be found in People v.Guerra (1984) 37 Cal.3d 385, 401.

Federal Habeas: Adjudication on the Merits by State Court

Johnson v. Williams, no. 11-465 (cert. granted January 13, 2012.)

Question Presented: Whether a habeas petitioner’s claim has been “adjudicated onthe merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied reliefin an explained decision but did not expressly acknowledge a federal-law basis forthe claim.

Status: Argued October 3, 2012.

Opinion Below: Williams v. Cavazos (9 Cir. 2011) 646 F.3d 626th

Note: Tara Williams was convicted of special circumstances murder in California. On appeal, she argued that the trial court had violated her Sixth Amendment rightsby dismissing a holdout juror. Division Three of the Second District upheld herconviction (unpublished opinion, People v. Taylor, B137365), but in analyzing herclaim never mentioned the Sixth Amendment and cited no federal cases. TheNinth Circuit held that this indicated that the California appellate court had notdecided the federal issue and that, therefore, no deference under AEDPA wasrequired. However, the Second District had relied on an earlier California opinionthat had discussed the Sixth Amendment claim that Williams raised. The SecondDistrict’s discussion of that case may be enough for the United States SupremeCourt to determine that the federal issue was actually decided during the state courtappeal.

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Fourth Amendment: Arrestee DNA Samples

Maryland v. King, 12-207 (cert. granted November 9, 2012)

Question Presented: Does the Fourth Amendment allows the states to collect andanalyze DNA from people arrested and charged with serious crimes?

Status: Set for oral argument February 26, 2013.

Opinion Below: King v. State (2012) 425 Md. 550, 42 A.3d 549

Note: This case presents a similar issue to that raised in People v. Buza, no.S196200 (rev. granted October 19, 2011), which is currently pending before theCalifornia Supreme Court. The question whether the government may takeinvoluntary DNA samples from those arrested, but not convicted, of serious crimesis an issue that has split lower federal and state courts.

Fourth Amendment: Warrantless Blood Sample

Missouri v. McNeely, 11-1425 (cert. granted September 25, 2012)

Question Presented: Whether a law enforcement officer may obtain anonconsensual and warrantless blood sample from a drunk driver under the exigentcircumstances exception to the Fourth Amendment warrant requirement basedupon the natural dissipation of alcohol in the bloodstream.

Status: Set for argument Wednesday, January 9, 2013

Opinion Below: State v. McNeely (Mo. 2012) 358 S.W.3d 65

Note: At issue is whether there are any material facts which distinguish this casefrom Schmerber v. California (1966) 384 U.S. 757, in which the Court found thatcertain circumstances led an officer to reasonably believe he faced an emergencyin which delay in obtaining a warrant for a blood draw from a suspected drunkdriver would threaten the destruction of evidence. The Supreme Court of Missouriupheld the trial court’s finding in the present case that Schmerber wasdistinguishable and affirmed the trial court’s subsequent ruling suppressingevidence obtained in a blood draw: “The patrolman here... was not faced with the‘special facts’ of Schmerber. Because there was no accident to investigate andthere was no need to arrange for the medical treatment of any occupants, there was

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no delay that would threaten the destruction of evidence before a warrant could beobtained. Additionally, there was no evidence here that the patrolman would havebeen unable to obtain a warrant had he attempted to do so. The sole special factpresent in this case, that blood-alcohol levels dissipate after drinking ceases, is nota per se exigency pursuant to Schmerber justifying an officer to order a blood testwithout obtaining a warrant from a neutral judge.” (Id. at 67.)

Fourth Amendment: Execution of Warrant

Bailey v. United States, 11-770 (cert. granted June 4, 2012)

Question Presented: Whether, pursuant to Michigan v. Summers, 452 U.S. 692(1981), police officers may detain an individual incident to the execution of asearch warrant when the individual has left the immediate vicinity of the premisesbefore the warrant is executed.

Status: Argued November 1, 2012

Opinion Below: United States v. Bailey (2 Cir. 2011) 652 F.3d 197nd

Note: Although the question presented indicates that there is some similaritybetween the present case and Michigan v. Summers (1981) 452 U.S. 692, the factsappear markedly different. In Michigan v. Summers, police officers detained aresident of a home being searched pursuant to a warrant as that resident wasdescending the front steps of the home. In the present case, the defendant had leftthe residence before the search began and had driven .7 miles away. Policestopped his vehicle and returned him to the premises. At trial, the court admittedstatements he made as well as evidence obtained in a search of his person. Giventhese facts, many of the government interests, such as officer safety, that theSupreme Court identified as significant to its decision in Michigan v. Summersarguably do not carry the same weight in the present case.

Fourth Amendment: Dog Sniff Cases

Florida v. Jardines, 11-654 (cert. granted January 6, 2012)

Question Presented: Whether a dog sniff at the front door of a suspected growhouse by a trained narcotics detection dog is a Fourth Amendment search requiringprobable cause?

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Status: Argued October 31, 2012

Opinion Below: Jardines v. State (Fla. 2011) 73 So. 3d 34

Note: The United States Supreme Court has repeatedly found that dog-sniffs donot constitute searches for purposes of the Fourth Amendment. (See City ofIndianapolis v. Edmond (2000) 531 U.S. 32, 40; United States v. Place (1983) 462U.S. 696, 707; Illinois v. Caballes (2005) 543 U.S. 405, 409.) This case will givethe Supreme Court an opportunity to consider the limits of these prior holdings. Inthis case, Florida police officers used a trained narcotics detection dog to sniff atthe front door of a suspected marijuana grower’s home. The Court has notpreviously addressed the validity of dog-sniff searches in the context of the mostsacrosanct place for Fourth Amendment purposes, the home.

Florida v. Harris, 11-817 (cert. granted March 26, 2012)

Question Presented: Did the Florida Supreme Court decide an important federalquestion in a way that conflicts with the established Fourth Amendment precedentof this Court by holding that an alert by a well-trained narcotics detention dogcertified to detect illegal contraband is insufficient to establish probable cause forthe search of a vehicle?

Status: Argued October 31, 2012

Opinion Below: Harris v. State (Fla. 2011) 71 So. 3d 756

Note: In this case, the Supreme Court will opine on the qualifications a trainednarcotics detection dog must have in order for the dog’s alert to establish probablecause for the search of a vehicle. The extent to which a court ruling on asuppression motion may rely on a police officer’s own reliance on a dog’s“expertise” may be a key issue in the case.

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II. CALIFORNIA SUPREME COURT – REVIEW GRANTED CASES: Selected Highlights

In view of the availability of pending issues summaries issued by the JudicialCouncil, http://www.courts.ca.gov/supremecourt.htm, these materials will not provide acomplete list of review-granted criminal cases. Instead, the materials will focus solely onissues likely to be of greatest interest to California appellate practitioners which have notbeen covered in prior FDAP materials. Materials on pending issues covered in past yearscan be found at http://www.fdap.org/r-article_search.php.

Search and Seizure

People v. Buza, no. S196200 (rev. granted October 19, 2011)

Question Presented: Does the compulsory collection of biological samples from alladult felony arrestees for purposes of DNA testing (Pen. Code, §§ 296, subd.(a)(2)(c), 296.1, subd. (a)(1)(A)) violate the Fourth Amendment to the UnitedStates Constitution?

Opinion Below: 197 Cal.App.4th 1424 (A125542, filed August 4, 2011). In Buza,Division Two of the First District struck down the defendant’s misdemeanorconviction for refusing to give a DNA sample (§ 298.1(a)) at the time of his felonyarrest due to the absence of “independent suspicion, a warrant or even a judicial orgrand jury determination of probable cause.”

Note: This case presents many of the same issues as Maryland v. King, no. 12-207,currently pending before the United States Supreme Court.

Robey v. Superior Court, no. S197735 (rev. granted January 18, 2012)

Questions Presented: (1) Could police conduct a warrantless search of a packagesmelling of marijuana under a “plain smell” exception to the warrant requirement?(2) Could police conduct a warrantless search of the package because the mobilityof the box created exigent circumstances even after an officer seized the packagefrom a common carrier and held it at the police station?

Status: Fully briefed May 14, 2012.

Opinion Below: 200 Cal.App.4th 1 (no. B231019, filed October 24, 2011). “Petitioner Kewhan Robey consigned a sealed package to a common carrier for

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shipment. The package reeked of marijuana. The carrier notified the police, whoseized the package and later opened it at the police station” without first seeking awarrant. Inside the package, the police discovered 444 grams of marijuana. Inaccordance with section 1538.5, petitioner filed a Fourth Amendment motion tosuppress the marijuana, which the trial court denied. The Court of Appeal grantedthe defendant’s petition for writ of mandate and directed the trial court to grant thesuppression motion. Relying on Guidi v. Superior Court (1973) 10 Cal.3d 1 andPeople v. Marshall (1968) 69 Cal.2d 51, the Court of Appeal held there is no“plain smell” exception to Fourth Amendment warrant requirement. In Marshall,the California Supreme Court explicitly concluded the “plain view” doctrine -under which contraband in plain view of an officer seen from a lawful vantagepoint may be seized without a warrant - does not extend to odors. Justice Mosk’sconcurring opinion in Guidi called into question the continuing validity ofMarshall’s rejection of the plain smell doctrine, but the Supreme Court ultimatelydid not revisit its prior holding on this issue. Approximately 40 years later, theSupreme Court will now revisit the issue.

Note: The exigent circumstances question presented for review in this case maycause the Supreme Court to revisit its own precedent in People v. McKinnon(1972) 7 Cal.3d 899 and the First District Court of Appeal’s more recent decisionin People v. Pereira (2007) 150 Cal.App.4th 1106. The Court of Appeal in theinstant matter assumed, arguendo, the police were empowered to seize the packagebut held they could not search the package in the absence of a warrant or exigentcircumstances. The police did not obtain a warrant, and the Court of Appeal foundno evidence of exigent circumstances, noting there was “no risk the package wouldleave the station.” Pereira reached a similar result. McKinnon, likening a packageconsigned to a common carrier to an automobile, held the police could search sucha package immediately if probable cause exists to believe it contains contraband orseize the package and hold it until they can obtain a warrant.

Guilty Pleas

People v. Clancey, no. S200158 (rev. granted April 11, 2012)

Question Presented: Did the trial court’s actions in this matter constitute anunlawful plea bargain rather than a lawful indicated sentence?

Status: Briefing completed October 18, 2012.

Opinion Below: 202 Cal.App.4th 790 (H036501, issued January 10, 2012). On the

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People’s appeal, the Sixth District Court of Appeal struck down a guilty plea afterthe trial court made an offer, over the prosecutor’s objection, that if defendantadmitted all of the charges and allegations the trial court would grant his motion todismiss a strike and would impose a five-year state prison term or allow defendantto withdraw his pleas and admissions. The Sixth District held: “The prior casesthat have considered this issue have failed to devise a clear and coherent test fordetermining whether a trial court’s actions amounted to an improper judicial pleabargain or were instead a permissible indicated sentence. In our view, twoprinciples govern the distinction between a judicial plea bargain and an indicatedsentence. [¶] First, an ‘offer’ by the court that is contingent on a defendantpleading guilty or no contest cannot be a proper indicated sentence because itinduces a defendant to plead guilty or no contest.... A proper indicated sentence isnot premised on guilty or no contest pleas, but applies whether or not the defendantchooses to proceed to trial.... [¶] Second, an ‘offer’ by the court that provides thedefendant with the option to withdraw the guilty or no contest pleas and anyadmissions if the court decides to impose a sentence other than the one offered isnot a proper indicated sentence.”

Note: This case produced a split opinion in the Sixth District and a passionatedissent by Justice Lucero, who observed, inter alia, that case authority recognizedthat “a true indicated sentence does not include any inducement to a criminaldefendant to plead to the sheet apart from the indicated sentence” and “[t]he factthat a sentence indication results in a guilty plea does not establish that it wasindicated with the prohibited intent.” (Emphasis in original.)

People v. Palmer, no. S204409 (rev. granted October 10, 2012)

Questions Presented: (1) Is a claim that the trial court failed to establish a factualbasis for defendant’s plea within the meaning of Penal Code section 1192.5 notcognizable on appeal where defense counsel stipulated to a factual basis for theplea? (2) If the claim is cognizable, did defense counsel’s bare stipulation to afactual basis without reference to any document describing the facts sufficientlyestablish a factual basis?

Status: Opening Brief on the Merits filed November 27, 2012.

Opinion Below: unpublished (no. H036979, filed July 2, 2012). Appellant entereda no contest plea to a drug possession offense pursuant to a negotiated pleabargain. During voir dire, appellant confirmed in open court that his attorneydiscussed the elements of the offense with him and stated that he was satisfied

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with his attorney’s advice. Defense counsel stipulated to a factual basis for theplea, and both parties waived their rights to a preliminary hearing. The trial courtthen suspended imposition of sentence and placed appellant on probation. Appellant filed a timely notice of appeal, and the trial court granted his request fora certificate of probable cause to challenge the validity of his plea.

On appeal, appellant maintained that “a bare stipulation by the parties thatthere is a factual basis for a plea is insufficient to satisfy the requirements of PenalCode section 1192.5 [footnote] and People v. Holmes (2004) 32 Cal.4th 432, and,because a preliminary examination and a probation report were both waived, thereis nothing in the record to support a factual basis in this case.” Section 1192.5 andHolmes require trial courts to inquire into the voluntariness and factual basis for adefendant’s no contest or guilty plea. The Court of Appeal acknowledged that adefendant may challenge on appeal the procedure that resulted in his or her pleaand that “[w]hether there was an inquiry of the kind required by the statute is aprocedural question.” (See People v. Voit (2011) 200 Cal.App.4th 1353, 1369.) However, the Court of Appeal held that a challenge to the sufficiency of thefactual basis inquiry is not a challenge to the trial court’s process where there hasbeen a stipulation to the factual basis for the plea in open court and in thedefendant’s presence; rather, such a challenge is one directed at the ultimateconclusion whether there was a factual basis for the plea. In the Court of Appeal’sestimation, the stipulation in this case foreclosed an appellate challenge to thefactual basis for appellant’s plea.

Note: Although section 1192.5 mandates that the trial court “cause an inquiry to bemade of the defendant to satisfy itself that the plea is freely and voluntarily made,and that there is a factual basis for the plea” (§ 1192.5), the California SupremeCourt has held that “there is no federal constitutional requirement for this factualbasis inquiry . . . .” (People v. Hoffard (1995) 10 Cal.4th 1170, 1183.)

Wheeler/Batson

People v. Mata, no. S201413 (rev. granted May 9, 2012)

Questions Presented: (1) Did the trial court err in reseating a challengedprospective juror following defendant’s successful Wheeler/Batson motion (Peoplev. Wheeler (1978) 22 Cal.3d 258; Batson v. Kentucky (1986) 476 U.S. 79)? (2) Didthe defense impliedly consent to reseating the juror? (3) If defense counsel did notconsent, was the error reversible per se or subject to harmless error analysis?

Status: Fully briefed December 6, 2012.

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Opinion Below: 203 Cal.App.4th 898 (no. B226256, filed February 23, 2012). Inthe trial court, defense counsel challenged the prosecutor’s use of a peremptorystrike against an African-American juror in accordance with Wheeler. The trialcourt found the prosecutor’s justification for the peremptory challenge insufficientand ordered the juror reseated. Defense counsel did not make any comments inresponse to the trial court’s chosen remedy of reseating the juror for the Wheelerviolation. The jury subsequently convicted appellant of three criminal charges. On appeal, Division One of the Second District Court of Appeal reversed thejudgment, finding the trial court did not have the authority to reseat the juror in theabsence of appellant’s waiver or consent. The Court of Appeal noted that, inWheeler, the Supreme Court held that when the trial court finds that either partyhas improperly exercised a peremptory challenge on the basis of a group bias, thecourt “must dismiss the jurors thus far selected” and “quash any remaining venire.” (Wheeler, supra, 22 Cal.3d at p. 282.)

In 2002, noting that the remedy fashioned in Wheeler was not required bythe federal Constitution, the Supreme Court held that “with the assent of thecomplaining party, the trial court should have the discretion to issue appropriateorders short of outright dismissal of the remaining jury . . . .” (People v. Willis(2002) 27 Cal.4th 811, 821.) The Supreme Court emphasized, however, that“waiver or consent is a prerequisite to the use of such alternative remedies . . . .” (Id. at p. 823.) In the instant case, the Court of Appeal held that defense counsel’ssilence on the issue of remedy did not amount to a waiver or consent. Accordingly, all previously seated jurors should have been dismissed, and the trialcourt should have commenced anew the entire jury selection process. The Courtof Appeal did not directly address whether the error was subject to automaticreversal or harmless error review, but it reversed the judgment without anyprejudice analysis.

Note: The Court of Appeal distinguished People v. Overby (2004) 124Cal.App.4th 1237, where defense counsel implicitly consented to the trial court’sreseating of the improperly challenged juror by asking that the challenged jurorremain in the courtroom while the Wheeler motion was resolved and by responding“submit” when the court asked for comment on the proposed remedy. Regardingthe question whether the error in this case was structural or subject to harmlesserror review, it should be noted that the Fifth District Court of Appeal addressedthis question in a related context in 1996, deciding “(1) whether the trial court’sfailure to dismiss the entire jury panel following its disallowance of theprosecutor’s challenge to [an alternate juror] was a ‘trial error’ or a ‘structuraldefect;’ and (2) assuming the error was a ‘trial error,’ was it harmless.” (People v.Rodriguez (1996) 50 Cal.App.4th 1013, 1028-1029.) In the context of an alternate

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juror who was never actually seated (because she left the courtroom) and whereanother alternate juror was seated in her place, Rodriguez concluded that the errorbefore it was subject to harmless error review but cautioned: “Lest there be anymisunderstanding, we emphasize that our finding of harmless error with respect tothe Wheeler/Batson motion is limited to the specific facts of this case: aperemptory challenge against an alternate juror who was never called upon to sit injudgment of the defendant. Whether to apply harmless error or a reversible per setest if the error involved a venireperson who actually sat as a member ofdefendant’s jury is not before this court today.” (Id. at p. 1036.)

People v. Wright, no. S202433 (rev. granted July 18, 2012)

Questions Presented: (1) Did the trial court misapply People v. Wheeler (1978) 22Cal.3d 258 and Batson v. Kentucky (1986) 476 U.S. 79 by granting a prosecutionmotion claiming the defense was selectively excluding prospective Caucasianjurors when defense counsel, asked his reason for excluding a particular femaleCaucasian juror, acknowledged that one of his reasons for the challenge was toachieve a more gender-balanced jury? (2) Did the trial court err by reseating thejuror and then refusing to allow the defense to exercise a peremptory challengeafter acknowledging that defense counsel had provided a legitimate gender-neutralreason for challenging that particular female Caucasian juror? (3) If the trial courterred by reseating the juror, is that error reversible per se or subject to a harmlesserror analysis?

Status: Opening Brief on the Merits filed September 17, 2012.

Opinion Below: 204 Cal.App.4th 1084 (no. B228640, filed April 4, 2012). Thetrial court found that the prosecutor made a prima facie showing that defensecounsel’s use of peremptory challenges evidenced group bias towards Caucasians. The court then asked defense counsel to provide race-neutral justifications for hischallenges. Defense counsel responded that he had not exercised the challengesin question based on race; rather, he had directed challenges at Caucasian womenin order to achieve a more gender-neutral jury. The trial court granted theprosecutor’s Batson/Wheeler motion as to one of the female jury members and,pursuant to the prosecutor’s request, ordered her reseated. The Court of Appealaffirmed the ruling of the trial court, finding substantial evidence supported thetrial court’s determination that appellant made challenges based on group biastoward women, even though defense counsel offered as an alternative basis for hischallenge the explanation that the challenged juror appeared to be “cold.”

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Note: If the Supreme Court determines the trial court erred in reseating thechallenged juror, as in the Mata case described above, the Court will alsodetermine whether the error is subject to harmless error review or automaticreversal on appeal.

Computer-Generated Evidence

People v. Goldsmith, no. S201443 (rev. granted May 9, 2012)

Questions Presented: (1) What testimony, if any, regarding the accuracy andreliability of the automated traffic enforcement system (ATES) is required as aprerequisite to admission of the ATES-generated evidence? (2) Is the ATESevidence hearsay and, if so, do any exceptions apply?

Status: Answer Brief on Merits filed November 27, 2012

Opinion Below: 203 Cal.App.4th 1515 (B231678, issued February 28, 2012). With regard to authentication of computer-generated video and photographicevidence, Division Three of the Second District relied on People v. Martinez(2000) 22 Cal.4th 106 and People v. Lugashi (1988) 205 Cal.App.3d 632 to find:“We do not presume computer data to be unreliable, and do not require theproponent of such evidence to disprove the possibility of error to meet the minimalshowing required for admission. [Citation.] Neither is the proponent of thecomputer records evidence required to produce testimony on the acceptability,accuracy, maintenance, and reliability of the computer hardware and software,especially where, as here, the computer data consists of retrieval of automaticinputs rather than computations based on data entered into the computer by humanbeings. [Citation].” With regard to hearsay, Goldsmith held: “The video andphotographs in the instant case are not ‘verbal’ expression because they do notcontain words. Moreover, a ‘statement’ is made by a ‘person”. . . . The EvidenceCode does not contemplate that a machine can make a statement, and a printout ofresults of a computer's internal operations is not a “statement” constituting hearsayevidence. [Citation.]”

Note: Although this case concerns a minor traffic infraction (failing to stop at a redlight), the outcome could be relevant in many criminal cases. Goldsmith broadlyopined that testimony on the accuracy and reliability of computer hardware andsoftware is not necessary and that computer generated photographs and video neednot meet the prerequisites for admission of business or official records. This casewill give the California Supreme Court an opportunity to revisit standards

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governing admission of computer-generated records in an era in which suchrecords continue to proliferate.

Psychotherapist-Patient Privilege

People v. Gonzales, no. S191240 (rev. granted April 27, 2011)

Questions Presented: (1) Was defendant’s statement to his psychotherapist that hehad molested 16 children in the distant past properly admitted into evidence in acommitment proceeding under the Sexually Violent Predator Act pursuant to the“dangerous patient” exception to the psychotherapist-patient privilege? (2) Did thedisclosure of defendant’s statements violate a federal constitutional right ofprivacy?

Status: Fully briefed November 28, 2011.

Opinion Below: 192 Cal.App.4th 152 (no. H032866, filed January 27, 2011). Thepsychotherapist-patient privilege found in Evidence Code section 1014 affordspatients the right to refuse to disclose confidential communications with theirpsychotherapist. Evidence Code section 1024, however, establishes an exceptionto the privilege - the “dangerous patient” exception - under which apsychotherapist may disclose confidential communications if the psychotherapisthas reasonable cause to believe the patient is dangerous to self or others anddisclosure is necessary to prevent the danger.

In this sexually violent predator (SVP) civil commitment case, the trialcourt admitted confidential communications between appellant and hispsychotherapist under the dangerous patient exception. Appellant admitted pastacts of child molestation from more than 20 years ago to a psychotherapist he wasseeing as a court-ordered condition of parole. A jury subsequently found appellantmet the SVP commitment criteria, and the trial court order him committed for anindeterminate term. The Court of Appeal found the communications, which didnot cause appellant’s psychotherapist concern that he might be dangerous, did notfall under the dangerous patient exception to the privilege and were thereforeerroneously admitted at trial. Furthermore, the Court of Appeal rejected theAttorney General’s argument that appellant’s status as a parolee ordered by thecourt to participate in therapy rendered the privilege inapplicable to him. While“the psychotherapist-patient privilege does not protect psychological records of aprevious involuntary commitment . . . generated, in part, as part of an ongoingprocess designed to treat . . . SVPs,” “[a] defendant who has been released onparole with a therapy condition is not comparable to a person involuntarily

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committed to a state institution as an MDSO or an SVP . . . .” A person in thelatter situation “can generally expect communications with a psychotherapist to beconfidential and protected by the privilege except insofar as disclosure is necessaryto ensure compliance with the parole condition.” The Court of Appeal held that“the erroneous release and later admission of privileged psychotherapy informationat the SVP trial violated defendant’s federal constitutional right to informationalprivacy” and deemed the error prejudicial under the harmless beyond a reasonabledoubt standard found in Chapman v. California (1967) 386 U.S. 18. The Court ofAppeal reversed the judgment accordingly.

Note: The Court of Appeal found no reason to apply a different rule for paroleesthan already applied by case law to probationers. (See Story v. Superior Court(2003) 109 Cal.App.4th 1007 [finding the privilege applied to therapy entered intoas a court-ordered condition of probation].) The Supreme Court’s review of thequestion presented in this case may lead to a reexamination of Story’s holding aswell. This case, therefore, appears to have potentially broad application beyondthe SVP commitment context, as the result will likely determine whether a paroleeor probationer’s court-ordered communication with a psychotherapist would beadmissible at trial in criminal proceedings as well.

Evidence of Post-Arrest, Pre-Miranda Silence

People v. Tom, no. S202107 (rev. granted June 20, 2012)

Question Presented: Did the admission of defendant’s post-arrest, pre-Mirandasilence as substantive evidence of guilt violate his Fifth Amendment rights?

Status: Answer Brief on the Merits filed November 26, 2012.

Opinion Below: 204 Cal.App.4th 480 (nos. A124764 & A130151, filed March 19,2012). In this case, the “defendant was under de facto arrest when he was drivenfrom the scene of the accident in a patrol car and he was not given Mirandawarnings at that time. During its case-in-chief, the government elicited testimonyfrom [two officers] that, subsequent to his arrest, defendant never inquired aboutthe welfare of the occupants of the other vehicle. The government offered thisevidence of defendant’s post-arrest, pre-Miranda silence as substantive evidenceof defendant’s guilt” of vehicular manslaughter with gross negligence.

Although a number of federal circuit courts have addressed whether theadmission of a defendant’s post-arrest, pre-Miranda silence as substantiveevidence of guilt violates the defendant’s Fifth Amendment right against self-

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incrimination, no published California decision had directly addressed this issueuntil this case. After discussing the conflict on this question among federal circuitcourts, the Court of Appeal held that “the right of pretrial silence under Miranda istriggered by the inherently coercive circumstances attendant to a de facto arrestand therefore the government may not introduce evidence in its case-in-chief of adefendant’s silence after arrest, but before Miranda warnings are administered, assubstantive evidence of defendant’s guilt.” The Court of Appeal deemed the errorprejudicial under Chapman, noting that the question for the jury in this case was“whether defendant acted with gross negligence in driving over the speed limit andwhether his conduct displayed an ‘I don’t care attitude’ [footnote] and was soreckless that it created a high risk of death or great bodily injury.”

Note: Federal cases addressing this issue include: United States v. Moore (D.C.Cir. 1997) 104 F.3d 377 [finding a Fifth Amendment violation]; United States v.Velarde-Gomez (9th Cir. 2001) 269 F.3d 1023 (en banc) [finding a FifthAmendment violation]; and United States v. Frazier (8th Cir. 2005) 408 F.3d 1102[finding no Fifth Amendment violation].

Aiding and Abetting

People v. Chiu, no. S202724 (rev. gr. August 15, 2012.)

Question Presented: Does a conviction for first degree murder as an aider andabettor under the natural and probable consequences doctrine require thatpremeditated murder have been a reasonably foreseeable consequence of the targetcrimes or only that murder have been such a consequence?

Status: Opening Brief on the Merits filed December 14, 2012.

Opinion Below: unpublished (no. C063913, filed April 23, 2012). The ThirdDistrict Court of Appeal followed People v. Woods (1992) 8 Cal.App.4th 1570,1586-1587 and People v. Hart (2009) 176 Cal.App.4th 662 and found that the trialcourt prejudicially erred by failing to instruct the jury it must find that apremeditated and deliberate first degree murder was the natural and probableconsequence of one of the target offenses: “The absence of such an instructionmeans that..., the jury necessarily convicted defendant of first degree murdersimply because that was the degree of murder the jury found the perpetratorcommitted, and the jury never determined whether a reasonable person indefendant's position would have known that premeditated murder... was likely tohappen... as a consequence of either target offense.”

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Note: The ultimate decision in Chiu may turn on a statutory analysis of thedistinctions between premeditation and deliberation allegations made pursuant toPenal Code section 664 for purposes of attempted murder and mens rea required1

for other criminal offenses, such as murder, which are divided into degrees. Hart,an attempted murder case, had held that a trial court erred by failing to instruct thatthe jury had to find, not only that the attempted murder was a natural and probableconsequence of the robberies, but also that the perpetrator’s willfulness,deliberation, and premeditation were natural and probable consequences. Peoplev. Favor (2012) 54 Cal.4th 868 overruled Hart on this issue after the ThirdDistrict’s decision in Chiu was issued. Favor distinguished Woods on the groundsthat Woods was a murder case and murder, unlike attempted murder, is an offensedivided into degrees. (Id. at 877.)

However, in her briefing in Chiu the attorney general has attempted to evade thisstatutory distinction and to expand liability for murder under the natural andprobable consequences doctrine by arguing, in essence, that the harm caused by theperpetrator, not the perpetrator’s specific mens rea, need have been reasonablyforeseeable for natural and probable consequences liability to attach:

In murder cases where the aider’s liability is based on the natural andprobable consequences doctrine, a conviction for first degree murder isappropriate where the aider could reasonably foresee the victim’s death andthe perpetrator acted with premeditation and deliberation. The purpose ofthe doctrine is to punish aiders for the foreseeable harms that directly resultfrom their actions. To assign liability strictly based on the foreseeability ofa specific unintended crime goes against this purpose and defeats thevicarious nature of the doctrine. . . . If a jury finds that. . . death was anatural and probable consequence of the intended offense, then the aider’sliability under the doctrine is strictly vicarious and is therefore guilty of thesame degree of murder as the perpetrator.

(Chiu, Opening Brief on the Merits, pp. 11-12.)

People v. Delgado, no. S192704 (rev. granted June 29, 2011)

Questions Presented: (1) Did the trial court have a duty to instruct on its ownmotion on an aiding and abetting theory of liability when defendant personallyperformed some elements of the charged offense and another person performed the

All further statutory references are to the Penal Code unless specified otherwise.1

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remaining elements required to complete the crime? (2) If so, did the Court ofAppeal correctly conclude that the trial court’s failure to instruct on aiding andabetting was harmless error?

Status: Argued January 8, 2013.

Opinion Below: 193 Cal.App.4th 1202 (B220174, filed March 29, 2011). The defendant, convicted of kidnaping to commit robbery (§ 209(b)(1)), invited thevictim into a car and both of them got into the vehicle. A woman in the driver’sseat locked all of the car doors and drove for a short time, after which defendantdrew a knife on the victim and took his property. Division One of the SecondDistrict Court of Appeal held that the trial court erred by failing to instruct onaiding and abetting, because there was no evidence that the defendant personallytransported the victim and, therefore, no evidence that she could have been guiltyas the direct perpetrator. The Court rejected the Attorney General’s argument thatsince defendant committed an element of kidnaping (detaining the victim with theintent to rob), she could be found guilty as a direct perpetrator, relying on thebedrock principle that “[d]ue process requires all the elements of an offense beproved against a defendant.” However, the error was harmless under the Chapmanv. California (1967) 386 U.S. 18 standard because the evidence provided “strongindicators” the driver and Delgado shared each other’s intention and cooperated inrobbing the victim.

Note: The Second District disagreed with People v. Cook (1998) 61 Cal.App.4th1364 and agreed with Cook v. Lamarque (E.D.Cal. 2002) 239 F.Supp.2d 985, 986,996, in concluding that a rule allowing a defendant to be found guilty as aperpetrator if he committed only one element of the offense violates federal dueprocess by effectively removing the necessity of proving all elements and loweringthe burden of proof. Among the arguments made by FDAP panel attorney BobDerham on behalf of Delgado is that People v. Cook was wrongly decided, hasnever been followed, and was rightfully rejected by Cook v. Lamarque.

Active Participation in Criminal Street Gang

People v. Johnson, no. S202790 (rev. granted August 8, 2012.)

Question Presented: Is there a crime of conspiracy to commit the offense of activeparticipation in a criminal street gang in violation of Penal Code section186.22(a)?

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Status: Opening Brief on the Merits filed November 2, 2012.

Opinion Below: 205 Cal.App.4th 594. (F057736, issued on April 26, 2012). TheFifth District Court of Appeal concluded: “[A] criminal street gang is, at its core, aform of conspiracy. This being the case, by charging defendants in count ninewith conspiracy to actively participate in a criminal street gang, the Peopleessentially charged defendants with conspiracy to actively participate in aconspiracy.” After considering analogous federal authority and doctrines ofstatutory interpretation, the court found nothing to suggest that the voters orLegislature intended section 182, criminalizing conspiracy to commit a crime, toapply to the offense of active participation in a criminal street gang.

Note: The Fifth District relied on a rather straightforward statutory analysis. However, in a footnote of the opinion the court recognized the potential validity ofsome perhaps more intriguing arguments made by appellate counsel: “Defendantssay a charge of conspiracy to commit a conspiracy is ‘an absurd redundancy’ thatresults in unconstitutional vagueness. (See, e.g., Williams v. Garcetti (1993) 5Cal.4th 561, 567–568 [discussing unconstitutional vagueness]; People v. Gallegos(1997) 54 Cal.App.4th 252, 262 [discussing inherent unfairness].) One might alsoask whether such a crime is a ‘conclusive legal falsehood.’ (People v. Iniguez(2002) 96 Cal.App.4th 75, 79 [discussing conspiracy to commit attemptedmurder].) Our conclusions remain the same by whatever means we reach them.” (205 Cal.App.4th at 719, fn. 161.) On December 27, 2012, the California SupremeCourt decided People v. Rodriguez (S187680), in which it held “an active gangparticipant only violates section 186.22(a) if he commits the requisite felonycollectively with one or more ‘members of that gang,’ rather than while actingalone, as defendant did here.” (See concurring opinion of Baxter, J. at slip opinionpage 1.)

Robbery

People v. Williams, no. S195187 (rev. granted October 12, 2011)

Question Presented: Can a conviction for robbery be based on the use of force inthe attempt to escape after committing the crime of theft by false pretenses asopposed to theft by larceny?

Status: Fully briefed February 23, 2012.

Opinion Below: 197 Cal.App.4th 339 (no. B222845, filed July 11, 2011).

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Robbery, as defined in section 211, requires an unlawful taking accomplished bymeans of force or fear. A person may be convicted of robbery where the requisiteforce is not applied contemporaneously with the taking but rather is subsequentlyapplied to prevent retaking of the stolen property or to facilitate escape. (People v.Estes (1983) 147 Cal.App.3d 23.) “Many decisions since Estes,” according to theCourt of Appeal, “have reaffirmed theft by larceny or theft by trick becomesrobbery even when possession of property is peacefully or fraudulently obtained ifforce or fear is used to either carry it away or retain it.” Here, “Williams’sfelonious acquisition of the gift cards was theft by false pretenses, rather than theftby trick. Based on that distinction Williams contends his robbery convictions mustbe reversed because theft by false pretenses lacks the elements of a trespassorytaking and asportation and is completed when the defrauded party passespossession and title to the thief.” The Court of Appeal rejected this argument,finding the facts of appellant’s case virtually indistinguishable from an Estesrobbery. The Court of Appeal held: “There is simply no public policy justificationfor treating theft by false pretenses differently from theft by larceny or by trickwhen, as in the case at bar, the defendant uses force or fear after the propertyowner, who consented to deliver ownership, immediately recognizes he or she is avictim of a scam and tries to reclaim the property.”

Note: The California Supreme Court has described the difference between theft byfalse pretenses and theft by trick in the following manner: “Although the crimes oflarceny by trick and device and obtaining property by false pretenses are muchalike, they are aimed at different criminal acquisitive techniques. Larceny by trickand device is the appropriation of property, the possession of which wasfraudulently acquired; obtaining property by false pretenses is the fraudulent ordeceitful acquisition of both title and possession.” (People v. Ashley (1954) 42Cal.2d 246, 258.)

Mayhem

People v. Santana, no. S198324 (rev. granted February 22, 2012)

Question Presented: Does CALCRIM No. 801, which defines the crime ofmayhem, incorrectly require the People to prove that a defendant caused seriousbodily injury to the victim?

Status: Fully briefed August 27, 2012.

Opinion Below: 200 Cal.App.4th 182 (no. D059013, filed October 26, 2011 and

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modified on November 10, 2011). In this attempted mayhem prosecutioninvolving a gunshot wound, the trial court instructed the jury, in accordance withCALCRIM No. 801, that the state must prove the defendant caused serious bodilyinjury and that serious bodily injury means “a serious impairment of physicalcondition.” The trial court then proceeded to modify the pattern instruction toinclude the following sentence: “Such an injury may include a gunshot wound.” Ina 2-1 decision, the Court of Appeal held that the gunshot wound language“provided a grossly misleading and argumentative instruction that favored theprosecution” and “improperly misdirected the jury to focus on the means by whichthe injury was inflicted” rather than “nature of the wound inflicted.”

Note: The question presented for review in the Supreme Court does not appear tohave been addressed in the Court of Appeal. Section 203, which defines mayhem,provides: “Every person who unlawfully and maliciously deprives a human beingof a member of his body, or disables, disfigures, or renders it useless, or cuts ordisables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty ofmayhem.” Unlike CALCRIM No. 801, the statute does not include the phrase“serious bodily injury.” Thus, the Supreme Court will decide whether theCALCRIM instruction accurately reflects the elements the prosecution must prove.

Homicide

People v. Beltran, no. S192644 (rev. granted June 15, 2011.)

Questions Presented: (1) Was the jury misinstructed with former CALCRIM No. 570 on provocation and heat of passion as a basis for a conviction of voluntarymanslaughter? (2) Did the prosecutor misstate the applicable law on the subject inargument? (3) Did the trial court accurately respond to a jury question on thesubject? (4) If there was error, was defendant prejudiced?

Status: Briefing complete May 30, 2012.

Opinion Below: Division Four of the First District Court of Appeal held: “Whatnegates malice is simply a state of mind obscured by passion. [Citation.] Thatstate of mind can be induced by any violent, intense, or enthusiastic emotion,except revenge, including anger, rage, and fear of death or bodily harm. [Citation.] Thus, in the context of voluntary manslaughter, provocation is sufficient if itwould trigger such a state of mind in a reasonable person. It need not further causea particular level of conduct, let alone cause a reasonable person to react withlethal violence.” Ambiguity in a former version of CALCRIM no. 570 “invited the

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jurors to consider what would and would not be a reasonable response to theprovocation,” and was, therefore, erroneous. Since the jurors asked a relatedquestion and the prosecutor’s argument capitalized on the error, it was notharmless under the People v. Watson (1956) 46 Cal.2d 818 standard.

Note: In this case, the California Supreme Court will address the validity of theanalysis in People v. Najera (2006) 138 Cal.App.4th 212, which found that aprosecutor incorrectly stated the law in arguing that heat of passion provocationrequires that a reasonable person would have been provoked to kill.

People v. Wilkins, no. S190713 (rev. granted May 11, 2011.)

Question Presented: Should the trial court have instructed the jury, as requested,with CALCRIM no. 3261, on the theory that a homicide and an underlying felonydo not constitute one continuous transaction for purposes of the felony-murder ruleif the killer has escaped to a place of temporary safety before the homicide takesplace?

Status: Argued January 8, 2013.

Opinion Below: 191 Cal.App.4th 780 (No. G040716, filed January 7, 2011). Division Three of the Fourth District Court of Appeal held: “The defense’srequested instruction [on the escape rule], to the extent it would be understood bythe jurors as setting the point at which felony-murder liability terminates—whichundoubtedly was the very reason it was requested—is an incorrect statement of thelaw and was properly refused by the trial court.”

Note: This case will allow the California Supreme Court to revisit the standardsgoverning the necessary temporal relationship between the homicide and anyunderlying felony for purposes of the felony murder rule. Wilkins relied on Peoplev. Cavitt (2004) 33 Cal.4th 187, 208, which held that, while the “‘escape rule’defines the duration of the underlying felony, in the context of certain ancillaryconsequences of the felony ... [t]he continuous-transaction doctrine, ... defines theduration of felony-murder liability which may extend beyond the termination ofthe felony itself, provided the felony and the act resulting in death constitute onecontinuous transaction.”

People v. Bryant, no. S196365 (rev. granted September 13, 2011)

Question Presented: May voluntary manslaughter be premised on a killing without

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malice that occurs during commission of an inherently dangerous assaultivefelony?

Status: Fully briefed May 17, 2012.

Opinion Below: 198 Cal.App.4th 134 (D057570, filed August 9, 2011). DivisionOne of the Fourth District concluded that the trial court prejudicially erred byfailing to instruct the jury sua sponte on the “Garcia theory” of voluntarymanslaughter, which posits that a homicide during a felony assault constitutesvoluntary manslaughter if the defendant lacks the mental state of maliceaforethought, i.e., if she “did not subjectively appreciate that her conductendangered [the victim’s] life.” (See People v. Garcia (2008) 162 Cal.App.4th18.)

Note: Bryant will allow the California Supreme Court to either recognize thespecies of voluntary manslaughter Garcia identified or invalidate it. Although theCalifornia Supreme Court had granted review on this issue as well in People v.Cravens (2012) 53 Cal.4th 500, the Court ultimately did not address or resolve thequestion. Instead, in Cravens, the Court addressed only the sufficiency of theevidence of implied malice.

People v. Elmore, no. S188238 (rev. granted February 2, 2011)

Question Presented: Does the doctrine of imperfect self-defense apply when thedefendant’s actual, but unreasonable, belief in the need to defend himself wasbased solely on a psychotic delusion?

Status: Briefing completed December 12, 2011.

Opinion Below: unpublished opinion (B216917, filed October 27, 2010). DivisionSeven of the Second District Court of Appeal held: “The doctrine of imperfectself-defense. . . does not apply where the subjective belief in the need to defendoneself arises not from objective circumstances but purely from the defendant’smental illness. [Citation.] Imperfect self-defense ‘is predicated upon negligentperception of facts, not, as in the case of a delusion, a perception of facts notgrounded in reality. A person acting under a delusion is not negligentlyinterpreting actual facts; instead, he or she is out of touch with reality. That maybe insanity, but it is not a mistake as to any fact.’ [Citations.]”

Note: Resolution of the issue in this case may require addressing the extent to

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which the Legislature’s abolition of the diminished capacity defense restrictsconsideration of a defendant’s mental illness in determining whether he or shesubjectively believed the need to repel imminent peril or bodily injury. (SeePeople v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1450-1456 [discussingdiminished capacity and diminished actuality in holding that imperfect self-defensecannot be based on delusion alone].)

Lesser Included Offenses

People v. Shockley, no. S189462 (rev. granted March 16, 2011)

Question Presented: Is battery a lesser included offense of committing a lewd actwith a child under 14 years of age?

Status: Fully briefed October 6, 2011.

Opinion Below: 190 Cal.App.4th 896 (no. F058249, filed December 8, 2010). TheCourt of Appeal held that “battery is not a lesser included offense to a violation ofsection 288 because a defendant may violate section 288 without committing abattery. Accordingly, the trial court did not have a sua sponte obligation to instructthe jury that battery was a lesser included offense to lewd and lascivious conduct.” In so ruling, the Court of Appeal agreed with People v. Santos (1990) 222Cal.App.3d 723 and disagreed with People v. Thomas (2007) 146 Cal.App.4th1278.

Note: Trial courts have a sua sponte duty to instruct the jury on lesser includedoffenses “when the evidence raises a question as to whether all of the elements ofthe charged offense were present . . . .” (People v. Breverman (1998) 19 Cal.4th142, 154, internal quotation marks omitted.) “Under California law, a lesseroffense is necessarily included in a greater offense if either the statutory elementsof the greater offense, or the facts actually alleged in the accusatory pleading,include all the elements of the lesser offense, such that the greater cannot becommitted without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th108, 117-118.)

People v. Smith, no. S201186 (rev. granted May 9, 2012)

Question Presented: Should the trial court have instructed the jury, as requested, onmisdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)) as a lesser

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included offense of resisting an executive officer in the lawful performance of hisduty (Pen. Code, § 69)?

Status: Opening Brief on the Merits filed September 13, 2012.

Opinion Below: 203 Cal.App.4th 1051 (no. B223181, filed February 24, 2012). The Supreme Court will resolve a long-standing split of authority in this case. Asthe Court of Appeal noted: “With respect to the statutory elements test, there is asplit of authority as to whether a violation of section 148, subdivision (a)(1) isnecessarily included within a violation of section 69. (People v. Belmares (2003)106 Cal.App.4th 19, 24, 130 Cal.Rptr.2d 400 [not included]; People v. Lopez(2005) 129 Cal.App.4th 1508, 1532, 29 Cal.Rptr.3d 586 (Lopez) [not included];People v. Lacefield (2007) 157 Cal.App.4th 249, 259, 68 Cal.Rptr.3d 508(Lacefield) [included within actual resisting form of section 69 under statutoryelements test].)” The Court of Appeal rejected Lacefield’s analysis under thestatutory elements test, maintaining that “an attempt to deter or prevent an officerfrom performing a duty at some time in the future violates section 69, but notsection 148, subdivision (a)(1).” The Court of Appeal also found section 148 didnot set forth a lesser included offense of section 69 under the accusatory pleadingtest because the information “alleged defendant committed both forms of violatingsection 69.”

Note: Section 69 “sets forth two separate ways in which an offense can becommitted. The first is attempting by threats or violence to deter or prevent anofficer from performing a duty imposed by law; the second is resisting by force orviolence an officer in the performance of his or her duty.” (In re Manuel G. (1997)16 Cal.4th 805, 814.) Section 148(a)(1) prohibits “willfully resist[ing], delay[ing],or obstruct[ing] any . . . peace officer . . . in the discharge or attempt to dischargeany duty of his or her office or employment . . . .” For a brief explanation of theduty to instruct on lesser included offenses and the statutory elements andaccusatory pleading tests, see the above description of People v. Shockley.

Instruction on Defendant’s Extrajudicial Statements

People v. Diaz, no. S205145 (rev. granted November 20, 2012)

Questions Presented: (1) Did the trial court err by failing to instruct the jury, onthe court’s own motion, that the jury was required to consider defendant’sextrajudicial, oral statements with caution even though the statements constitutedthe alleged criminal act? (2) If so, did the Court of Appeal correctly conclude that

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the trial court’s failure to instruct was harmless error?

Status: Opening Brief on Merits due January 22, 2013.

Opinion Below: 208 Cal.App.4th 711 (H036414, issued August 1, 2012). In thiscriminal threats case, the Sixth District relied on multiple California SupremeCourt cases to hold that the trial court must give a cautionary instruction regardinga defendant’s out-of-court oral statements, regardless of whether those statementsconstituted the act necessary to prove the crime: “[T]he Supreme Court in [Peoplev. Carpenter (1997) 15 Cal.4th 312, 392] indicated that the cautionary instructionapplied to all oral, out of court statements made by a defendant and did not restrictits application to only oral statements that admit or acknowledge a fact. InCarpenter, the Supreme Court mentioned People v. Ford (1964) 60 Cal.2d 772,780–784, 799..., in which it had found that the trial court ‘should have given thecautionary instruction regarding evidence of defendant’s statements during theentire course of the events surrounding the crime, including some just before andsome just after the fatal shooting.’ [Citation.]. . . The Supreme Court has morerecently stated: ‘We have long recognized that this cautionary instruction issufficiently broad to cover all of a defendant’s out-of-court statements.[Citations.]’ (People v. Clark (2011) 52 Cal.4th 856, 957.)”

Note: In Diaz, the California Supreme Court will address the propriety of theholding in People v. Zichko (2004) 118 Cal.App.4th 1055, 1057, that thecautionary instruction for out-of-court oral statements applies only to admissionsas defined in CALJIC No. 2.71 and should “not to be given when defendant’swords constitute the crime itself.” (Ibid.) CALJIC No. 2.71 states that anadmission is “a statement made by the defendant which does not by itselfacknowledge his... guilt of the crimes for which the defendant is on trial, but whichstatement tends to prove his... guilt when considered with the rest of the evidence.”(Internal brackets omitted.)

Sufficiency of the Evidence

People v. Davis, no. S198434 (rev. granted January 11, 2012)

Question Presented: Did substantial evidence support defendant’s convictions forpossession and sale of a controlled substance even though MDMA/Ecstasy is notexpressly listed as a controlled substance subject to Health and Safety Codesections 11377 and 11379, and the prosecution did not present expert testimonythat MDMA/Ecstasy contains a controlled substance or is an analog of a controlled

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substance?

Status: Briefing completed December 4, 2012.

Opinion Below: 200 Cal.App.4th 205 (B229615, issued October 26, 2011) Division Four of the Second District concluded that expert testimony that Ecstasycontains a controlled substance or was an analog was not required: “The evidenceoffered by the prosecution on this issue was MDMA’s chemical name, whichcontains the terms amphetamine and methamphetamine. . . . The prosecution...presented evidence that the pills appellant sold to Officer Rubalcava containedMDMA, and evidence adduced at trial showed that MDMA is the abbreviation formethylenedioxymethamphetamine. MDMA’s formal name contains bothmethamphetamine and amphetamine, drugs that are enumerated controlledsubstances. Its name also is similar to ‘methylenedioxy amphetamine,’ or MDA,which is a listed controlled substance under the statute. We apply common sensein concluding that the chemical name of the substance, by including the term‘methamphetamine’ and not including any suffix or term negating the inference(e.g., ‘pseudo’), supports the inference that the pills appellant sold to OfficerRubalcava contained methamphetamine.”

Note: In People v. Le (2011) 198 Cal.App.4th 1031, Division Two of the FirstDistrict had disagreed with Davis, holding that expert testimony was required, butreview was granted in Le (S197493/B224042) and briefing deferred pending thedecision in Davis.

People v. Dowl, no. S182621 (Rev. granted July 21, 2010)

Question Presented: If the defendant raises a medical marijuana defense in aprosecution for possession of marijuana for sale, must the People call an expertwho has experience in distinguishing lawful medical possession from unlawfulpossession?

Status: Supplemental briefing completed October 16, 2012.

Opinion Below: 183 Cal.App.4th 702 (F057384, issued on April 6, 2010.) TheFifth District disagreed with People v. Chakos (2007) 158 Cal.App.4th 357, whichrelied on People v. Hunt (1971) 4 Cal.3d 231, 237–238, to find that experttestimony by a police officer, who was trained in unlawful sales of narcotics,opining that marijuana was possessed for sale was insufficient to prove unlawfulpossession because the officer had no expertise in distinguishing “lawful patterns

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of possession from unlawful patterns of holding for sale.” (Chakos at 367.) Dowlconcluded: “We find the holding of Chakos to be inconsistent with the nature ofthe affirmative defense under the Compassionate Use Act. By essentiallyrequiring the prosecution’s narcotics expert to also qualify as medical marijuanaexpert in order to opine that marijuana in a defendant’s possession is possessed forsales, Chakos improperly reallocates the burden of proof on the compassionate usedefense to the prosecution. . . . Under Chakos, it would be exceedingly difficultand inconvenient for a prosecutor to prove what is ‘reasonably related’ to adefendant’s medical needs. [Citation]. . . [¶] We... conclude that the presence ofthe marijuana in defendant’s car, combined with Officer Williamson’s expertopinion that the circumstances of defendant’s possession were consistent withunlawful sales, constituted substantial evidence. . . .”

Note: On July 11, 2012, the California Supreme Court ordered supplementalbriefing on the following questions: (1) Whether petitioner’s failure to object attrial to Officer Williamson’s testimony precludes him from asserting on appealthat, because Officer Williamson was not qualified to opine as to the purpose ofpetitioner’s marijuana possession, his testimony does not constitute substantialevidence to support the verdict. (2) Whether the record, including the preliminaryhearing transcript, shows that the trial court did not abuse its discretion inpermitting respondent’s expert to opine at trial that defendant possessed marijuanafor purpose of sales.

People v. Nuckles, no. S200612 (rev. granted April 18, 2012)

Question Presented: Was defendant properly convicted of being an accessory to afelony for assisting another person to abscond from his parole term after servinghis sentence for that felony?

Status: Fully briefed November 26, 2012.

Opinion Below: unpublished (no. F061562, filed February 1, 2012). Section 32states: “Every person who, after a felony has been committed, harbors, conceals oraids a principal in such felony, with the intent that said principal may avoid orescape from arrest, trial, conviction or punishment, having knowledge that saidprincipal has committed such felony or has been charged with such felony orconvicted thereof, is an accessory to such felony.” Appellant allowed anacquaintance (Gray) who had absconded from his parole to stay at her house,knowing that he had in fact absconded from his parole and with the intent to assisthim in avoiding arrest. She was convicted of violating section 32 for this conduct.

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On appeal, she maintained that section 32 did not apply to her conduct becauseGray had not committed a felony by absconding from parole; he had only violatedhis parole. She reasoned that the statute only applied to acts directed at harboringor aiding a person in the commission of conduct that itself constitutes a felony. The Court of Appeal rejected this distinction, finding that a parolee remains in theconstructive custody of the state after committing a felony, which brings a paroleviolation within the statute’s use of the word “felony.”

Note: The Court of Appeal suggested the Legislature might want to consideramending the statute in order to address future claims of ambiguity with respect toparole violations and section 32, noting: “While the criminal sanction of section 32is applicable to defendant for reasons expressed in this opinion, the Legislaturemight consider a concise statute to specifically address such misconduct, i.e., theact of purposely harboring and concealing the whereabouts of a parolee who isknown to have violated parole and is subject to arrest, even if that parolee has notcommitted a separate felony offense.” The Supreme Court’s decision in this casewill determine whether such legislative action is necessary.

Proving Prior Convictions with Faxed Copies of Certified Records

People v. Skiles, no. S180567 (rev. granted April 28, 2010)

Question Presented: Are faxed copies of certified court records admissible toestablish that a prior conviction qualifies as a serious or violent felony for purposesof the three strikes law?

Status: Fully briefed November 10, 2010.

Opinion Below: 180 Cal.App.4th 1363 (no. G040808, filed January 11, 2010). The trial court sustained a prior strike allegation based on the prosecution’sintroduction of a faxed copy of certified court records documenting an out-of-stateprior conviction. The Court of Appeal affirmed the trial court’s ruling, noting firstthat, pursuant to Evidence Code section 1530, “[a] certified copy of an officialrecord can be used to prove the contents of the record.” The Court of Appeal thencited Evidence Code section 1521 (“the secondary evidence rule”) for theproposition that “a copy of a certified copy of an official record is admissible forthis purpose, unless there is a genuine dispute concerning its terms and justicerequires exclusion of the copy, or admission of the copy would be unfair.”

Note: The “secondary evidence rule” found in Evidence Code section 1521(a),

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provides: “The content of a writing may be proved by otherwise admissiblesecondary evidence. The court shall exclude secondary evidence of the content ofwriting if the court determines either of the following: (1) A genuine dispute existsconcerning material terms of the writing and justice requires the exclusion” or “(2)Admission of the secondary evidence would be unfair.” Evidence Code section1530(a), provides, in relevant part: “A purported copy of a writing in the custodyof a public entity, or of an entry in such a writing, is prima facie evidence of theexistence and content of such writing or entry if: (1) The copy purports to bepublished by the authority of the nation or state, or public entity therein in whichthe writing is kept” or “(2) The office in which the writing is kept is within theUnited States . . . and the copy is attested or certified as a correct copy of thewriting or entry by a public employee, or a deputy of a public employee, having thelegal custody of the writing . . . .”

Dual Use of Firearm Enhancements

People v. Le, no. S202921 (rev. granted July 25, 2012)

Question Presented: Does Penal Code section 1170.1, subdivision (f) as interpretedby People v. Rodriguez (2009) 47 Cal.4th 501, preclude a trial court fromimposing both a firearm use enhancement under Penal Code section 12022.5,subdivision (a), and a gang enhancement under Penal Code section 186.22,subdivision (b)(1)(B), when the offense is a serious felony as a matter of law?

Status: Briefing completed December 21, 2012

Opinion Below: 205 Cal.App.4th 739 (D057392, issued April 27, 2012). On thePeople’s cross-appeal, Division One of the Fourth District Court of Appeal heldthat the dual use prohibition in section 1170.1(f) required the court to stay a 5-yearsection 12022.5(a) gun use enhancement and impose a 10-year section186.22(b)(1) enhancement. The Court rejected the People’s attempt to distinguishPeople v. Rodriguez (2009) 47 Cal.4th 501 on the grounds that the gangenhancement in the present case was generically pled and proved under section186.22(b)(1) without a gun use allegation and without such a finding made by thejury.

Note: Section 1170.1(f) provides: “When two or more enhancements may beimposed for being armed with or using a dangerous or deadly weapon or a firearmin the commission of a single offense, only the greatest of those enhancementsshall be imposed for that offense. This subdivision shall not limit the imposition

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of any other enhancements applicable to that offense, including an enhancementfor the infliction of great bodily injury.”

Prior Serious Felony Conviction Enhancement

People v. Park, no. S193938 (rev. granted August 10, 2011)

Question Presented: Should the enhancement imposed on defendant under PenalCode section 667, subdivision (a), be stricken because his prior conviction for aserious felony was reduced to a misdemeanor under Penal Code section 17,subdivision (b), and dismissed under Penal Code section 1203.4?

Status: Fully briefed February 14, 2012.

Opinion Below: unpublished (no. D056619, filed May 4, 2011). In 2003,appellant was convicted of assault with a deadly weapon, a serious felonyconviction within the meaning of section 667(a). The trial court suspendedimposition of sentence and placed appellant on probation. Upon completion of hisprobation in 2006, the trial court reduced his assault conviction to a misdemeanorpursuant to section 17(b), and then dismissed the case in accordance with section1203.4. Appellant was subsequently convicted by jury of attempted voluntarymanslaughter and assault with a semiautomatic firearm in an unrelated case.

In the new case, appellant admitted a prior serious felony conviction (the2003 assault conviction) within the meaning of section 667(a), an enhancementthat carries a mandatory five-year term. Although the Court of Appeal recognizedthat a felony reduced to a misdemeanor under section 17(b)(3), “is a misdemeanorfor all purposes,” the Court of Appeal nevertheless rejected appellant’s contentionthat imposition of the five-year serious felony conviction enhancement resulted inan unauthorized sentence. In support of this conclusion, the Court of Appeal reliedon the following language from section 1203.4(a), stating that after dismissal “inany subsequent prosecution of the defendant for any other offense, the priorconviction . . . shall have the same effect as if probation had not been granted orthe accusation or information dismissed.” The Court of Appeal reconciled theapparent conflict between sections 17 and 1203.4 by giving greater weight to thelatter statute. Similarly, the Court of Appeal held that article I, section 28(f)(4), ofthe California Constitution prevails over section 17. That constitutional provision,enacted after section 17, reads, in relevant part: “Any prior felony conviction ofany person in any criminal proceeding . . . shall subsequently be used withoutlimitation for purposes of . . . enhancement of sentence in any criminalproceeding.”

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Note: Although the case before the Court of Appeal involved a prior convictionthat had been reduced to a misdemeanor under section 17 and dismissed undersection 1203.4, the Court of Appeal’s holding purports to apply more broadly tosituations where the prior felony conviction has been reduced to a misdemeanorbut not dismissed. The Court of Appeal suggested that People v. Marshall (1991)227 Cal.App.3d 502 has been abrogated by the enactment of article I, section 28,subdivision (f)(4), of the California Constitution. Marshall held that a priorserious felony conviction that had been reduced to a misdemeanor under section17(c), could not be used to enhance a defendant’s sentence pursuant to section667(a). The Supreme Court’s ruling in this case will likely determine Marshall’scontinuing validity as well.

Romero Motion to Dismiss Prior Strike Convictions

People v. Vargas, no. S203744 (rev. granted September 12, 2012)

Questions Presented: (1) Was the trial court required to dismiss one of defendant’stwo prior convictions under the three strikes law, when they arose from the sameprior incident and were based on the same act? (2) If dismissal of one priorconviction was not mandatory, did the trial court abuse its discretion by failing todismiss one?

Status: Opening Brief on the Merits filed December 26, 2012.

Opinion Below: 206 Cal.App.4th 971 (no. B231338, filed March 19, 2012). InPeople v. Benson (1998) 18 Cal.4th 24, 26, the California Supreme Court held that“when a court has stayed sentence on an otherwise qualifying conviction undersection 654, the stayed conviction may be treated as a strike.” In a footnote,however, Benson expressly declined to address “whether there are somecircumstances in which two prior felony convictions are so closely connected - forexample, when multiple convictions arise out of a single act by the defendant asdistinguished from multiple acts committed in an indivisible course of conduct -that a trial court would abuse its discretion under section 1385 if it failed to strikeone of the priors.” (Id. at p. 36, fn. 8.) The Court of Appeal in the instant matterrejected the defendant’s argument that this footnote from Benson established a ruleof automatic dismissal where a prior strike allegation is based on the same act asanother prior strike conviction. (It was conceded, here, that the defendant’s priorcarjacking and robbery convictions arose from a single act.) Instead, the Court ofAppeal interpreted the footnote to mean that “the circumstances of multiple

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convictions arising from the same act or course of conduct is a factor to considerwhen determining, and not dispositive of, motions to dismiss a strike allegation.”

Note: In reaching its holding, Vargas disagreed with People v. Burgos (2004) 117Cal.App.4th 1209, 1215, in which the Court of Appeal suggested “that where thetwo priors were so closely connected as to have arisen from a single act, it wouldnecessarily constitute an abuse of discretion to refuse to strike one of the priors.”

Right to Jury Trial Prior to Imposition of Discretionary Sex Offender Registration

People v. Mosley, no. S187965 (rev. granted January 6, 2011)

Question Presented: Does the discretionary imposition of lifetime sex offenderregistration, which includes residency restrictions that prohibit registered sexoffenders from living “within 2000 feet of any public or private school, or parkwhere children regularly gather” (Pen. Code, § 3003.5, subd. (b)), increase the“penalty” for the offense within the meaning of Apprendi v. New Jersey (2000)530 U.S. 466, and require that the facts supporting the trial court’s imposition ofthe registration requirement be found true by a jury beyond a reasonable doubt?

Status: Fully briefed November 9, 2011.

Opinion Below: 188 Cal.App.4th 1090 (no. G038379, filed September 29, 2010). The Court of Appeal held that “imposing the residency restriction [found in PenalCode section 3003.5(b)] through discretionary sex offender registration as part ofthe sentencing on the underlying offense increases the penalty for that offensebeyond the statutory maximum. Accordingly, the facts supporting the impositionof the registration must be found true by a jury beyond a reasonable doubt.” TheCourt of Appeal concluded that the registration requirement created an“overwhelmingly punitive effect,” the imposition of which “increased the penaltyfor defendant’s misdemeanor offense beyond the statutory maximum based uponthe jury verdict alone.” (See Apprendi, supra, 530 U.S. at p. 490.) The Court ofAppeal distinguished In re E.J. (2010) 47 Cal.4th 1258, which the CaliforniaSupreme Court ordered it to consider, by pointing out that “[t]he primary issuethere was whether Jessica’s Law was being applied retroactively to the petitioners,not whether the residency restriction constituted punishment.”

Note: The California Supreme Court also granted review in two juveniledelinquency cases presenting related questions - In re S.W. (S187897) and In reJ.L. (S189721) - and ordered briefing deferred in those cases pending the outcome

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of Mosley. The Supreme Court framed the question presented for review in S.W.as: “Could the juvenile court constitutionally impose on petitioner therequirements set forth in The Sexual Predator Punishment and Control Act:Jessica’s Law (Prop. 83, as approved by voters, Gen. Elec. (Nov. 7, 2006)) withoutgiving petitioner the right to a jury trial on the underlying facts? (See Apprendi v.New Jersey (2000) 530 U.S. 466; McKeiver v. Pennsylvania (1971) 403 U.S. 528;People v. Nguyen (2009) 46 Cal.4th 1007.)” The United States Supreme Court hasheld that minors are not constitutionally entitled to jury trials in delinquencyproceedings. (McKeiver v. Pennsylvania, supra, 403 U.S. 528.)

Fines and Fees: Sufficiency of Evidence of Ability to Pay

People v. McCullough, no. S192513 (rev. granted January 29, 2011)

Question Presented: Did defendant forfeit his claim that he was unable to pay the$270.17 jail booking fee (Gov. Code, § 29500.2) imposed by the trial court atsentencing, because he failed to object at the time?

Status: Briefing completed January 27, 2012.

Opinion Below: 193 Cal.App.4th 864 (no. C064982, filed March 22, 2011). TheThird District Court of Appeal held that “[e]ven sufficiency of the evidence claimswith respect to fees and fines may be subject to forfeiture” and found that thedefendant had forfeited his claim of insufficiency of the evidence of ability to paya fee imposed under Government Code section 29500.2. In pertinent part,Government Code section 29500.2 provides: “If the person has the ability to pay,a judgment of conviction shall contain an order for payment of the amount of thecriminal justice administration fee by the convicted person.”

Note: This case will give the California Supreme Court the opportunity to pass onthe validity of the holding in People v. Pacheco (2010) 187 Cal.App.4th 1392 thatthe forfeiture rule does not apply to appellate claims of insufficiency of theevidence to support imposition of various fines and fees requiring an ability to pay,i.e., attorney’s fees (§ 987.8), jail booking fees (Gov. Code, § 29550(c) & §29550.2) and probation cost fees (§ 1203.1b). Pacheco held: “[C]laims . . . basedon the insufficiency of the evidence to support the order or judgment. . . . do notrequire assertion in the court below to be preserved on appeal.”

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Probation Conditions

People v. Schaeffer, S205260 (rev. granted October 31, 2012)

Question Presented: In a case involving possession of drugs and misdemeanordrug use, could the trial court, as a condition of probation require defendant to“reside at a residence approved by the Probation Officer and not move withouthis/her prior approval”?

Status: No briefing filed yet.

Opinion Below: 208 Cal.App.4th 1 (no. E053499, filed July 31, 2012). DivisionTwo of the Fourth District Court of Appeal found that a probation conditionrequiring the defendant to “reside at a residence approved by the Probation Officerand not move without his/her prior approval” was not unconstitutionally overbroadand did not infringe on the defendant’s constitutional rights to travel and freedomof association: “Defendant here pled guilty to possessing methamphetamine andbeing under the influence of a controlled substance. Where she lives will directlyaffect her rehabilitation (e.g., without any limitations, defendant could choose tolive in a residence where drugs are used or sold). Under these circumstances, thestate’s interest in defendant’s rehabilitation is properly served by the residenceapproval condition.”

Note: The Court of Appeal distinguished the present case from People v. Bauer (1989) 211 Cal.App.3d 937, which had stricken a residence approval condition thatseemed designed to prevent the defendant from living with his parents wherenothing in the record suggested his home life contributed to the crimes or wasrelated to future criminality. This case may give the California Supreme Court anopportunity to consider the extent to which, as the Court of Appeal found in thepresent case, a reviewing court may “presume a probation officer will not withholdapproval for irrational or capricious reasons.” The Court of Appeal also opinedthat if probation conditions are “too onerous” a defendant may refuse probationand choose to serve a sentence. Thus, the California Supreme Court may considerwhether acceptance of probation conditions acts as a type of waiver or forfeiture.

Probation Revocation

People v. Leiva, no. S192176 (rev. granted June 15, 2011)

Questions Presented: (1) Did the trial court have jurisdiction to revoke defendant’s

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probation? (2) Did sufficient evidence support the trial court’s finding thatdefendant either failed to report to his probation officer or reentered the countryillegally? (3) Did the trial court’s finding rely upon admissible evidence?

Status: Argued January 8, 2013

Opinion Below: 193 Cal.App.4th 114 (no. B214397, filed March 1, 2011). InApril 2000, appellant was placed on three years of probation following a nocontest plea to burglary charges. As conditions of probation, he was ordered toreport to his probation officer upon his release from custody and not to reenter thecountry illegally if deported. In 2001, the trial court summarily revokedappellant’s probation and issued a bench warrant for his arrest due to his failure toreport to his probation officer. Appellant was arrested in 2008 when the warrantwas discovered during a traffic stop. In 2009, the court conducted a probationviolation hearing and found appellant in violation of his probation, which it thenreinstated. The court violated and reinstated appellant over the objection ofdefense counsel that the court had lost jurisdiction over appellant because hisprobationary term had expired by operation of law years ago.

Appellant filed a timely notice of appeal. Shortly thereafter, appellantallegedly failed to report to his probation officer and was deported to El Salvador. A new bench warrant issued for his arrest. In September 2009, appellant wasarrested on the warrant. At his ensuing court appearance, defense counsel onceagain argued the trial court lacked jurisdiction because appellant’s probationaryterm had expired. The trial court ultimately rejected this argument, and, afterholding a contested probation violation hearing in October 2009, the court foundappellant violated his probation by returning to the country illegally.

In a 2-1 decision, Division Four of the Second District Court of Appealaffirmed the judgment of the trial court. The majority concluded the summaryrevocation of appellant’s probation in 2001 stopped the running of the probationperiod. In support of this holding, the Court of Appeal relied on section 1203.2(a),which provides: “The revocation, summary or otherwise, shall serve to toll therunning of the probationary period.” The Court of Appeal further rejectedappellant’s contentions that the order finding him in violation of probation lackedsufficient evidence and violated his due process right to confrontation. Thereviewing court concluded the trial court properly relied on information set forth inthe probation report, including appellant’s admission that he returned to thecountry and the fact that he did not report to his probation officer, to find him inviolation of his probation.

Note: The dissent agreed with appellant that People v. Tapia (2001) 91

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Cal.App.4th 738 compelled a contrary result on the jurisdictional question. Tapia,which involved a very similar set of facts, held: “while we agree that the[probationary] period is tolled by summary revocation, and that the period oftolling can be tacked onto the probationary period if probation is reinstated, we donot agree that these rules apply where, as here, there is no proof or admission of aviolation during the period of probation.” (Tapia, supra, 91 Cal.App.4th at p. 741,emphasis added.) According to Tapia: “it is clear that a summary revocation ofprobation suspends the running of the probation period and permits extension ofthe term of probation if, and only if, probation is reinstated based upon a violationthat occurred during the unextended period of probation.” (Ibid.) It is expectedthe Supreme Court’s decision will resolve the conflict between Leiva and Tapia.

Motion to Vacate Plea for Failure to Advise of Immigration Consequences

People v. Arriaga, no. S199339 (rev. granted February 22, 2012)

Questions Presented: (1) Must a defendant obtain a certificate of probable cause inorder to appeal the denial of a motion to withdraw a guilty plea for failure by thecourt or counsel to advise the defendant of the immigration consequences of theplea in accordance with Penal Code section 1016.5? (2) Can the People overcome,by a preponderance of the evidence, the presumption that advisements were notgiven or must the presumption be overcome by clear and convincing evidence?

Status: Briefing completed September 7, 2012.

Opinion Below: 201 Cal.App.4th 429 (B225443, filed December 1, 2011). Section1016.5(b) provides: “If, after January 1, 1978, the court fails to advise thedefendant [of the immigration consequences of a guilty or nolo contendere plea]and the defendant shows that conviction of the offense. . . may have theconsequences for the defendant of deportation, exclusion from admission to theUnited States, or denial of naturalization... the court, on defendant's motion, shallvacate the judgment and permit the defendant to withdraw the plea of guilty ornolo contendere, and enter a plea of not guilty. Absent a record that the courtprovided the advisement required by this section, the defendant shall be presumednot to have received the required advisement.” Section 1237 allows for appealsfrom orders after judgment which affect the substantial rights of the defendant, andsection 1237.5 prohibits appeals which challenge the validity of a guilty pleaabsent a trial court’s grant of a certificate of probable cause to appeal. In this case, Division Two of the Second District Court of Appeal held that “section 1237,subdivision (b) literally applies to the denial of a section 1016.5 motion, thus

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permitting an appeal that is not limited by section 1237.5. We conclude that nocertificate of probable cause was required to perfect this appeal.”

Note: This case may give the California Supreme Court the opportunity torecognize a very limited exception to the general rule that appeals challenging thevalidity of a guilty plea require a certificate of probable cause. That opportunitymay come in the form of recognizing that a narrow class of denials of motions towithdraw guilty pleas – those made under section 1016.5 for failure to advise ofimmigration consequences – fall under the rubric of orders after judgment that areappealable under section 1237(b). In addressing this issue, the California SupremeCourt will have to determine the validity of People v. Placencia (2011) 194Cal.App.4th 489, which held that appeals from section 1016.5 motions are appealsfrom final judgments after guilty pleas requiring a certificate of probable causeunder section 1237.5. A very brief statement in People v. Totari (2002) 28Cal.4th 876, 881-882, supports the Second District’s analysis in Arriaga. Totariobserved that a motion brought under section 1016.5 is appealable as an “‘ordermade after judgment, affecting the substantial rights of the party.’ (§ 1237, subd.(b)),” but the defendant in Totari had obtained a certificate of probable cause.

People v. Martinez, no. S199495 (rev. granted March 21, 2012)

Questions Presented: (1) Did the trial court abuse its discretion in denyingdefendant’s motion to withdraw his 1992 guilty plea based on the failure of thetrial court at the time of the plea to advise him of the immigration consequences ofhis plea, as mandated by Penal Code section 1016.5? (2) In ruling on such amotion, should a court consider in addition to the defendant’s prospects at trial,factors such as the possibility that had the defendant been properly warned, hemight have obtained an immigration-neutral disposition or might have preferredhis chances at trial over the certainty of deportation if he entered the plea?

Status: Fully briefed October 5, 2012.

Opinion Below: unpublished (no. H036687, filed December 9, 2011). In 1992,appellant entered a guilty plea to transporting marijuana, and the trial court placedhim on probation. In 2010, appellant’s application for an adjustment of status tolawful permanent residency was denied by the United States Citizenship andImmigration Service. The following year, he filed a motion to vacate hisconviction based on the failure of his attorney and the court to advise him of theimmigration consequences of his plea, as required by section 1016.5. The trialcourt acknowledged that appellant properly raised a rebuttable presumption that he

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had not been advised of the immigration consequences of his plea before heentered it and that he established he was now subject to one of the immigrationconsequences specified in section 1016.5. However, the trial court concluded thatappellant failed to establish prejudice, i.e., that he would have proceeded to a jurytrial or insisted on a plea agreement that spared him the adverse immigrationconsequence rather than enter into the plea bargain he accepted in 1992. TheCourt of Appeal agreed with the trial court, finding it improbable that appellantwould have pled to a greater offense and agreed to a prison term of three to fiveyears rather than take the deal he accepted had he been properly advised of theimmigration consequences of the plea he entered. The Court of Appeal alsoconcluded that appellant would not have taken his chances at a jury trial,particularly in light of the weight of the evidence against him.

Note: Section 1016.5(b) provides in relevant part: “If, after January 1, 1978, thecourt fails to advise the defendant as required by this section and the defendantshows that conviction of the offense to which defendant pleaded guilty or nolocontendere may have the consequences for the defendant of deportation, exclusionfrom admission to the United States, or denial of naturalization pursuant to thelaws of the United States, the court, on defendant’s motion, shall vacate thejudgment and permit the defendant to withdraw the plea of guilty or nolocontendere, and enter a plea of not guilty. Absent a record that the court providedthe advisement required by this section, the defendant shall be presumed not tohave received the required advisement.” (§ 1016.5(b).)

Double Jeopardy

People v. Carbajal, no. S195600 (rev. granted October 12, 2011)

Question Presented: Was retrial on sentencing allegations under the one strike law(Pen. Code, § 667.61) barred by double jeopardy although the first jury neverreached or resolved the issue?

Status: Argued January 8, 2013.

Opinion Below: 197 Cal.App.4th 32 (B222615, filed July 5, 2011). The jury hung on charges as to one of two alleged molestation victims but inconsistently returned

a true finding on a multiple victim one-strike allegation under section 667.61. Thecourt sent the jury back for reconsideration, and it returned a not true finding. Thecourt again sent the jury back, essentially directing it to hang on the allegation. Division Five of the Second District Court of Appeal held that double jeopardy

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barred retrial because the jury once returned a not true finding: “The law does notpermit reconsideration of a verdict of acquittal (or not true finding), even if it isinconsistent.”

Note: This case presents an issue similar to that recently addressed by the United States Supreme Court in Blueford v. Arkansas (May 24, 2012) U.S. , 132 S.Ct.2044, 182 L.Ed.2d 93, which held that double jeopardy did not bar retrial on firstdegree murder charges although the record indicated that the jury had unanimouslyvoted against the charge. The jury had deadlocked on lesser homicide charges, andArkansas does not accept partial acquittals. As a result, the trial court had declaredas mistrial as to all the charges.

Dismissal of Sexually Violent Predator Petitions Following Reevaluation

Reilly v. Superior Court, no. S202280 (rev. granted June 13, 2012)

Question Presented: Was petitioner entitled to dismissal of a petition forcommitment under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600et seq.) when the evaluations originally supporting the filing of the petition wereconducted under an assessment protocol that was later found to constitute aninvalid regulation and the results of reevaluation under a properly-adoptedassessment protocol would have precluded the initial filing of the petition underWelfare and Institutions Code section 6601?

Status: Fully briefed November 26, 2012.

Opinion Below: 204 Cal.App.4th 829 (no. G045118, filed March 28, 2012). Before the district attorney may file an SVP commitment petition, Welfare andInstitutions Code sections 6601(c) and (d) require that the proposed committee beevaluated by two practicing psychiatrists or psychologists “in accordance with astandardized assessment protocol, developed and updated by the [DMH], todetermine whether the person is a sexually violent predator as defined in thisarticle.” (Welf. & Inst. Code, § 6601(c) & (d).) To implement these procedures,the DMH published a handbook and protocol for use by the DMH’s SVPevaluators. (In re Ronje (2009) 179 Cal.App.4th 509, 515.) In Ronje, the Court ofAppeal held that in promulgating this handbook the DMH did not follow themandatory procedures in the Administrative Procedures Act found in GovernmentCode section 11340 et seq. (Id. at pp. 516-517.) As a remedy, Ronje directed thetrial court to order new evaluations using a valid assessment protocol. In theinstant case, in compliance with Ronje, the trial court ordered new evaluations

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prepared, and both evaluators concluded that petitioner did not meet the SVPcommitment criteria. The proposed committee then moved for dismissal of thecommitment petition, and the trial court denied the motion. The proposed SVPfiled a petition for writ of mandate, which the Court of Appeal granted, holding:“A commitment petition under the SVPA may not be filed when both initialevaluators conclude the criteria for commitment are not met, and, therefore, theSVPA commitment petition against Reilly now must be dismissed without furtherevaluations.”

Note: The Supreme Court granted review in two other cases behind Reilly: Boyselv. Superior Court (S202324) and Wright v. Superior Court (S202320). In Boyseland Wright, the two post-Ronje evaluators disagreed whether the proposed SVPmet the commitment criteria, and the Court of Appeal denied the writ petitionsthey filed without prejudice to later renewing their challenges to the SVPcommitment petitions after the trial court’s receipt of further evaluations. Thedisposition in Reilly (and/or Boysel and Wright) may also determine the continuingvalidity of Davenport v. Superior Court (2012) 202 Cal.App.4th 665, whereDivision Four of the First District Court of Appeal held a trial court is notobligated to dismiss an SVP commitment petition “when the original SVPevaluations were prepared using an invalid protocol and replacement evaluationsresult in a split of opinion.” The Supreme Court denied review in Davenport a fewmonths before granting review in Reilly, Boysel, and Wright (with two justicesdissenting from the denial of review in Davenport).

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