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Coming Monday

March 24, 2017 Leave a comment

Coming Monday from the Cal. Supremes:

 

PEOPLE v. PATTERSON (RON DOUGLAS)

S225193 (E060758; Riverside County Superior Court – RIF1201642)

Argued in San Francisco 1-05-17

 

This case presents the following issue:  Was defendant entitled to withdraw his plea (Pen. Code, § 1018) because his trial counsel assertedly provided constitutionally inadequate assistance of counsel during plea negotiations by failing to investigate and advise defendant of the immigration consequences of his plea?

 

PEOPLE v. ROMANOWSKI (DANIEL)

S231405 (B263164; Los Angeles County Superior Court – MA064403)

Argued in San Francisco 1-05-17

 

This case presents the following issue:  Does Proposition 47 (“the Safe Neighborhoods and Schools Act”), which reclassifies as a misdemeanor any grand theft involving property valued at $950 or less (Pen. Code, § 490.2), apply to theft of access card information in violation of Penal Code section 484e, subdivision (d)?

Burglary with intent to commit identity theft is a misdemeanor shoplift under Prop. 47 if the intent was to commit theft

March 23, 2017 Leave a comment

Burglary with intent to commit identity theft is a misdemeanor shoplift under Prop. 47 if the intent was to commit theft

 

In 2014, Proposition 47 created the new crime of “shoplifting,” defined as entering an open commercial establishment during regular business hours with the intent to commit “larceny” of property worth $950 or less.  (Pen. Code, § 459.5, subd. (a).)  This provision is related to the general burglary statute, which also applies to an entry with intent to commit “larceny” or any felony.  (Pen. Code, § 459.)  In 1927, the theft statutes were consolidated.  (Pen. Code, §§ 484, 490a; see Stats. 1927, ch. 619, §§ 1, 7, pp. 1046-1047.)  Subsequent cases held the burglary statute included an entry with intent to commit nonlarcenous theft.  Here we hold the electorate similarly intended that the shoplifting statute apply to an entry to commit a nonlarcenous theft.  Thus, defendant’s act of entering a bank to cash a stolen check for less than $950, traditionally regarded as a theft by false pretenses rather than larceny, now constitutes shoplifting under the statute.  Defendant may properly petition for misdemeanor resentencing under Penal Code section 1170.18.

 

People v. Gonzales

S231171

http://www.courts.ca.gov/opinions/documents/S231171.PDF

Coming tomorrow

March 22, 2017 Leave a comment

Coming tomorrow from the Cal. Supremes

 

PEOPLE v. GONZALES (GIOVANNI)

S231171 (D067554; Imperial County Superior Court – JCF32479)

Argued in San Francisco 1-04-17

 

This case presents the following issue:  Was defendant entitled to resentencing under Penal Code section 1170.18 on his conviction for second degree burglary either on the ground that it met the definition of misdemeanor shoplifting (Pen. Code, § 459.5) or on the ground that section 1170.18 impliedly includes any second degree burglary involving property valued at $950 or less?

Failure to instruct of elements of a crime can be harmless

March 22, 2017 Leave a comment

Failure to instruct of elements of a crime can be harmless

A jury convicted defendant Andre Merritt of two counts of robbery and found true allegations that he personally used a firearm during both robberies.  However, the trial court failed to give the standard jury instruction on the elements of robbery.  The failure to instruct on the elements of a charged crime is serious constitutional error that impacts a defendant’s fundamental right to a jury trial.  We must decide whether the error can ever be found harmless.

In People v. Cummings (1993) 4 Cal.4th 1233 (Cummings), this court held similar error to be reversible per se.  However, developments since then, including the high court decision in Neder v. United States (1999) 527 U.S. 1 (Neder), have made that holding obsolete.  Obviously, the more elements that the instructions omit, the more likely it is that the error is prejudicial.  But we see no need to hold categorically that error in failing to instruct on elements of the offense can never be found harmless.  Instead, harmless error analysis applies if the error at issue does not “ ‘vitiat[e] all the jury’s findings.’ ”  (Id. at p. 11.)  No such vitiation occurred here.  Although this jury did not receive the standard robbery instructions, it was instructed on the mental state required for the crime, on the need to find defendant’s identity as the perpetrator, and on the elements of the firearm use allegation.  In such circumstances, the error is not reversible per se but is reversible unless harmless beyond a reasonable doubt.

People v. Merritt

S231644

http://www.courts.ca.gov/opinions/documents/S231644.PDF

Requiring sex offenders to waive privileges is upheld

March 22, 2017 Leave a comment

Requiring sex offenders to waive privileges is upheld

 

Defendant Ignacio Garcia contends that conditioning probation on the waiver of his privilege against self-incrimination, as well as on his participation in polygraph examinations, violates his Fifth Amendment rights.  We conclude that the condition mandated by section 1203.067, subdivision (b)(3) directs defendant to answer fully and truthfully all questions posed to him as part of the sex offender management program.  But because we deem his responses compelled within the meaning of the Fifth Amendment, they cannot lawfully be used against him in a criminal proceeding. (Minnesota v. Murphy (1984) 465 U.S. 420, 435, fn. 7 (Murphy); accord, People v. Racklin (2011) 195 Cal.App.4th 872, 880.)  Where, as here, the responses would therefore pose no risk of incrimination, neither the fact that he was compelled to respond nor the fact that his responses were being monitored by a polygraph offends the Fifth Amendment.

We likewise reject defendant’s claim that conditioning probation on the waiver of his psychotherapist-patient privilege violates his constitutional right to privacy and is overbroad under California law.  It is neither overbroad nor violative of defendant’s right to privacy to require a limited waiver of the psychotherapist-patient privilege for the purpose of enabling the treatment professional to consult with the probation officer and the polygraph examiner.  We therefore affirm the judgment of the Court of Appeal.

People v. Garcia

S218197

http://www.courts.ca.gov/opinions/documents/S218197.PDF

 

The Cal. Supremes affirmed another death penalty case:

March 22, 2017 Leave a comment

The Cal. Supremes affirmed another death penalty case:

People v. Brooks

S099274

http://www.courts.ca.gov/opinions/documents/S099274.PDF

Coming Monday

March 17, 2017 Comments off

Coming Monday from the Cal. Supremes:

PEOPLE v. BROOKS (DONALD)

S099274 (Los Angeles County Superior Court – PA032918)

Argued in San Francisco 1-04-17

 

This matter is an automatic appeal from a judgment of death.

 

PEOPLE v. GARCIA (IGNACIO)

S218197 (H039603; Santa Clara County Superior Court – C1243927)

Argued in San Francisco 1-05-17

 

This case presents the following issue:  Are the conditions of probation mandated by Penal Code section 1203.067, subdivision (b), for persons convicted of specified felony sex offenses — including waiver of the privilege against self-incrimination, required participation in polygraph examinations, and waiver of the psychotherapist–patient privilege — constitutional?

 

PEOPLE v. MERRITT (ANDRE)

S231644 (E062540; San Bernardino County Superior Court – FVI1300082)

Argued in San Francisco 1-04-17

 

This case presents the following issue:  Is the failure to instruct the jury on the elements of a charged offense reversible per se or subject to harmless error review?  (See Neder v. United States (1999) 527 U.S. 1; People v. Mil (2012) 53 Cal.4th 400; People v. Cummings (1993) 4 Cal.4th 1233.)