Archive

Archive for December, 2013

No new cases today

December 30, 2013 Comments off

The Cal. Supremes will issue no new cases today.

Battery is NOT a necessarily lesser-included offense within the crime of lewd acts on a child

December 26, 2013 Comments off

Battery is NOT a necessarily lesser-included offense within the crime of lewd acts on a child.

People v. Shockley

S189462:

“We must decide whether battery is a lesser and necessarily included offense of lewd and lascivious conduct with a child under 14 years of age (hereafter referred to as lewd conduct).  We conclude it is not.”

http://www.courts.ca.gov/opinions/documents/S189462.PDF

Summary of Cases Accepted and Related Actions During Week of December 16, 2013

December 24, 2013 Comments off

Summary of Cases Accepted and Related Actions  During Week of December 16, 2013

#13-111

People v. Aranda, S214116.

(E056708; 219 Cal.App.4th 764; Riverside  County Superior Court; RIF154701.)  Petition for review after the Court of Appeal  affirmed an order dismissing one count and remanding for further proceedings.  This case  presents the following issue:

Did the Court of Appeal err by holding that double  jeopardy prevents retrial of defendant for first degree murder where the jury did not  return a verdict on that offense and deadlocked on the lesser included offenses of second  degree murder and voluntary manslaughter, because the trial court failed to afford the  jury an opportunity to return a partial acquittal on the charge of first degree murder?  (See  Blueford v. Arkansas (2012) 566 U.S. ___ [132 S.Ct. 2044]; Stone v. Superior Court 31 Cal.3d 503.)

#13-112

Packer v. Superior Court, S213894.

(B245923; 219 Cal.App.4th  226; Ventura  County Superior Court; 2010013013.)  Petition for review after the Court of Appeal  denied a petition for peremptory writ of mandate.  The court limited review to the following issue:

Did the trial court abuse its discretion by denying a motion for recusal  without an evidentiary hearing on the grounds that defendant failed to make a prima facie  showing that recusal was warranted?

#13-113

People v. Leggett, S214264.

(C073586; 219 Cal.App.4th 846; Shasta County Superior Court; 96F3095.)  Petition for review after the Court of Appeal dismissed an  appeal from a petition to recall sentence.  The court ordered briefing deferred pending  decision in Teal v. Superior Court, S211708 (#13-63), which presents the following  issue:

Did defendant have the right to appeal the trial court’s denial of his petition to recall his sentence under Penal Code section 1170.126, part of the Three Strikes Reform Act of 2012, when the trial court held he did not meet the threshold eligibility requirements for resentencing?

#13-114

People v. Mallett, S214584.

(G047080; nonpublished opinion; Riverside  County Superior Court; RIF127195.)  Petition for review after the Court of Appeal  remanded for resentencing and otherwise affirmed a judgment of conviction of criminal  offenses.  The court ordered briefing deferred pending decision in People v. Conley,  S211275 (#13-70), which presents the following issue:

Does the Three Strikes Reform Act of 2012 (Pen. Code, §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C)), which  reduces punishment for certain non-violent third-strike offenders, apply retroactively to a  defendant who was sentenced before the Act’s effective date but whose judgment was not  final until after that date?

#13-115

People v. Ramirez, S214133.

(G044703; 219 Cal.App.4th 655; Orange County Superior Court; 07WF2103.)  Petition for review after the Court of Appeal remanded for  resentencing and otherwise affirmed judgments of conviction of criminal offenses.  The  court ordered briefing deferred pending decision in People v. Gutierrez, S206365 (#1301), and People v. Moffett, S206771 (#13-03), which present issues concerning the sentencing of juvenile offenders under Penal Code section 190.5, subdivision(b), in light  of Miller v. Alabama (2012) 567 U.S. __ [132 S.Ct. 2455].

STATUS

#12-115

People v. Diaz, S205145.

The court ordered the parties to submit supplemental  briefs on the following issues:

(1) Are there grounds for this court to reconsider  precedent holding that a cautionary instruction concerning a defendant’s extra-judicial  statements must be given sua sponte, even in the absence of a statute mandating that the  instruction be given?  (See, e.g., People v. Beagle (1972) 6 Cal.3d 441, 455-456 and fn.  4; People v. Carpenter (1997) 15 Cal.4th 312, 392.)

(2) What rationale exists for  requiring the cautionary instruction to be given sua sponte, in light of other available  instructions, including the general instructions on witness credibility that are routinely given in every case?  (See, e.g., CALCRIM No. 226.)

(3) If a cautionary instruction is  not required sua sponte in every case in which a defendant’s extrajudicial statements  tending to prove guilt are admitted, under what circumstances, if any, should it be given upon request?

(4) If the rule requiring the court to give the cautionary instruction sua  sponte is changed, should the new rule apply retroactively to defendant’s case?

(5) What  effect, if any, does the Legislature’s adoption of Penal Code section 859.5, subdivision  (e)(3), effective January 1, 2014, have on these issues?

#13-39

Johnson v. California Department of Justice, S209167.

The court ordered the  parties to submit supplemental briefs on the following issue:  Should the court overrule  People v. Hofsheier (2006) 37 Cal.4th 1185?  The parties may wish to address the  following questions:

(1) What level of equal protection scrutiny applies to the statutory difference in sex offender registration requirements between those convicted of violating  Penal Code section 288a and those convicted of violating Penal Code section 261.5?

(2) Has Hofsheier presented practical difficulties of application in the trial and appellate  courts?

(3) Has Hofsheier been extended beyond the sex offender registration context in  ways that could not have been anticipated at the time of the decision?

(4) Absent the  limitations on Hofsheier’s application asserted in People v. Manchel (2008) 163  Cal.App.4th 1108, the validity of which is challenged in the present case, what principles,  if any, constrain the application of Hofsheier?

(5) Does Hofsheier’s equal protection  analysis logically extend beyond the context of sex offender registration?

(6) If Hofsheier’s holding is overruled, would and should the court’s decision apply retroactively to offenders who have been convicted or released from custody since the  decision in Hofsheier without registration orders or who have obtained relief by writ  petition from preexisting registration requirements?

Summary of Cases Accepted and Related Actions During Week of December 9 , 2013

December 24, 2013 Comments off

Summary of Cases Accepted and Related Actions During Week of December 9 , 2013

#13-107
People v. Banks, S213819
(B236152;nonpublished opinion; Los Angeles County Superior Court;BA347305.) Petition for review after the Court of Appeal amended and affirmed judgments of conviction of criminal offenses. The court limited review to the following issues:
(1) Was  the evidence sufficient to establish that defendant
Matthews was a “major participant” within the meaning of Penal Code section 190.2, subdivision (d)?
(2) Does the true finding on the special circumstance violate due
process? (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15; Enmund v. Florida (1982) 458 U.S. 782.)
#13-110
People v. Zapata, S213877.
(G047277; nonpublished opinion; Orange County Superior Court;05WF0647.) Petition for review after the Court of Appeal remanded for resentencing and otherwise affirmed a judgment of conviction of a criminal offense. The court ordered briefing deferred pending decision in People v. Conley, S211275 (#13-70), which presents the following issue:
Does the Three Strikes Reform Act of 2012 (Pen. Code, §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C)), which reduces punishment for certain non-violent third-strike offenders, apply retroactively to a defendant who was sentenced before the Act’s effective date but whose judgment was not final until after that date?

Summary of Cases Accepted and Related Actions During Week of November 25 , 2013

December 24, 2013 Comments off

Summary of Cases Accepted and Related Actions During Week of November 25 , 2013

#13-100
People v. Aguilar, S213571.
(A135516; 219 Cal.App.4th 1094; Contra Costa County Superior Court; 51202696.) Petition for review after the Court of Appeal affirmed a judgment of conviction of a criminal offense. This case presents the following issue:
Does the failure to object to an order for payment of attorney fees, an order for payment of a criminal justice administration fee, and/or an order for payment of probation supervision fees forfeit a claim that the trial court erred in failing to make a finding of the defendant’s ability to pay the amount in question? (See also People v. Trujillo, S213687.)
#13-104
People v. Trujillo, S213687.
(H038316; nonpublished opinion; Santa Clara County Superior Court; C1199870.)
Petition for review after the Court of Appeal reversed a judgment of
conviction of a criminal offense and remanded with directions. This case presents the following issue:
Does the failure to object to an order for payment of a presentence investigation fee and/or an order for payment of probation supervision fees forfeit a claim that the trial court erred in failing to make a finding of the defendant’s ability to pay the amount in question? (See also People v. Aguilar, S213571.)
#13-106
People v. Nguyen, S213703.
(E048880; 218 Cal.App.4th 1363; Riverside County Superior Court; RIC329441.) Petition for review after the Court of Appeal affirmed an order of commitment as a sexually violent predator. The court ordered briefing deferred pending decision in People v. Blackburn, S211078 (#13-66), and People v. Tran, S211329 (#13-69), which present the following issues:
(1) Did the trial court prejudicially err by failing to advise defendant of his right to jury trial and obtain a personal waiver of that right?
(2) Does the Court of Appeal have authority to declare a rule of procedure for the trial courts?

Coming Thursday

December 24, 2013 Comments off

Coming Thursday:

 

PEOPLE v. SHOCKLEY (THOMAS RAYMON)

S189462 (F058249; Stanislaus County Superior Court – 1238243)

Argued in San Francisco 10-10-13

This case presents the following issue: Is battery a lesser included offense of committing a lewd act with a child under 14 years of age?

A person may be liable for conspiracy to bribe or receiving a bribe even though that person offered or paid the bribe

December 23, 2013 Comments off

A person may be liable for conspiracy to bribe or receiving a bribe even though that person offered or paid the bribe

People v. Biane

S207250

An indictment charged defendants Jeffrey Burum and James Erwin with aiding and abetting the receipt of bribes by members of the San Bernardino County Board of Supervisors and with conspiring with those supervisors and others to have them accept bribes in exchange for the supervisors’ approval of a $102 million payment to settle litigation between Burum’s company and the County.  The People intended to prove that Burum (the payor of the bribes) and Erwin (acting as Burum’s agent) used threats, intimidation, and coercion to encourage the supervisors to accept the illegal payments.  The Court of Appeal sustained Burum’s demurrer to four counts of bribery and the related target crimes charged as part of the conspiracy on the ground that the payor of a bribe, as a matter of law, cannot aid and abet the receipt of the same bribe or conspire to commit that offense.  The Court of Appeal sustained Erwin’s demurrer to two of the bribery charges and the related target crimes charged as part of the conspiracy on the ground that Erwin, as Burum’s agent, “would stand in defendant Burum’s shoes.”

We conclude that the Court of Appeal erred.  Although neither the offer nor payment of a bribe in itself can establish that the offeror aided and abetted the separate crime of receiving the same bribe, the status of being the offeror or payor of a bribe does not disqualify that person, as a matter of law, from complicity in the offense of receiving the bribe.  Whether the offeror is guilty of aiding and abetting the receipt of the bribe depends on whether there is evidence that, in addition to the offer or payment of the bribe, the offeror “ ‘with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.’ ”  (People v. Gonzales and Solis (2011) 52 Cal.4th 254, 295-296.)  Similarly, being the offeror or payor of a bribe does not disqualify that person, as a matter of law, from culpability for participating in a conspiracy to accept that same bribe.

http://www.courts.ca.gov/opinions/documents/S207250.PDF