A special circumstance finding renders failure to give lessers nonprejudicial

June 4, 2018 Comments off

A special circumstance finding renders failure to give lessers nonprejudicial

A jury convicted defendants Jorge Gonzalez, Erica Michelle Estrada, and Alfonso Garcia of the first degree felony murder of Victor Rosales and found true a special circumstance allegation that the murder was committed during a robbery. The amended information had accused defendants of murder with malice aforethought, a term encompassing two kinds of offenses: murder with the deliberate intention to unlawfully take another’s life, or the commission of a willful act with conscious disregard that the natural and probable consequences of the act are dangerous to human life. (People v. Elmore (2014) 59 Cal.4th 121, 132-133.) This accusation triggered the trial court’s duty to instruct the jury on lesser included offenses of murder with malice aforethought –– such as involuntary manslaughter –– if substantial evidence had been presented at trial to support a jury finding of the lesser included offense rather than first degree murder. (See People v. Banks (2014) 59 Cal.4th 1113, 1160 (Banks I).)

Defendants also requested instructions on defenses to murder with malice aforethought. Yet the trial court instructed the jury only on first degree felony murder, without instructing the jury on murder with malice aforethought. Nor did the trial court instruct the jury on lesser included offenses of murder with malice aforethought, or defenses applicable to murder with malice aforethought. The question we must resolve in this case is whether the jury’s finding on the robbery-murder special circumstance renders harmless the trial court’s error in failing to instruct the jury on murder with malice aforethought, or on lesser included offenses of murder with malice aforethought, as well as defenses to murder with malice aforethought.

What we conclude is that the special circumstance finding here indeed renders the trial court’s error harmless. The prejudice arising from the failure to instruct on lesser included offenses and defenses creates a specific kind of risk –– that the jury, faced with an all-or-nothing choice between first degree murder or acquittal, convicted defendants of first degree felony murder even though the prosecution failed to satisfy its burden. Such an error is harmless if defendants cannot demonstrate a reasonable probability that the jury would have –– without the error –– reached a different result. (See People v. Blackburn (2015) 61 Cal.4th 1113, 1132.) A jury’s other findings, such as the resolution of a felony-murder special-circumstance allegation, may render the error harmless by resolving factual issues such as the truth of a felony-murder charge against the defendant. (See, e.g., People v. Castaneda (2011) 51 Cal.4th 1292, 1327-1329.) Defendants contend, however, that the jury’s decision to convict on first degree felony murder in this case all but compelled the jury to find true the robbery-murder special circumstance because of the jury’s purported desire for logical consistency –– thereby preventing us from holding the error harmless. They fail to take sufficient account of the fact that when the jury here found true the robbery-murder special circumstance, it necessarily made additional findings beyond those necessary for felony murder — such as the finding that aiders and abettors had the intent to kill, or acted with reckless indifference to human life — undercutting defendants’ arguments based in logical consistency. Moreover, these additional findings were incongruous with the jury believing defendants’ non-robbery theories of the case. Finally, a reasonable jury is assumed to follow instructions correctly, and the jury here was given clear instructions that required it to consider the relevant issue — whether the prosecution proved that each defendant committed, attempted to commit, or aided and abetted robbery beyond a reasonable doubt. Given these factors, we can conclude the jury in this case resolved the relevant factual dispute through the special circumstance finding, so the trial court’s error was harmless.

Accordingly, we affirm the Court of Appeal’s ruling.

People v. Gonzalez




Coming Monday

June 1, 2018 Comments off

Coming Monday from the Cal. Supremes:

S234377 (B255375; Los Angeles County Superior Court – YA076269)
Argued in San Francisco 3-07-18

The court limited review to the following issue: Was the trial court’s failure to instruct on murder with malice aforethought, lesser included offenses of murder with malice aforethought, and defenses to murder with malice aforethought rendered harmless by the jury’s finding of a felony murder special circumstance?

Death penalty cases affirmed

June 1, 2018 Comments off

No cases Monday

May 25, 2018 Comments off

Since Monday is a holiday, we expect no new cases Monday.

No death penalty for an intellectually disabled defendant

May 24, 2018 Comments off

No death penalty for an intellectually disabled defendant

Petitioner Robert Lewis, Jr., seeks habeas corpus relief, urging that he is
ineligible for execution because he is intellectually disabled1 and that his counsel
failed to investigate and present mitigating evidence as to penalty. We issued an
order to show cause and subsequently ordered a reference hearing in the superior
court. The referee found that (1) petitioner is intellectually disabled and (2) his
trial counsel did not perform deficiently at the penalty phase.
The referee’s findings regarding intellectual disability are supported by
substantial evidence and are adopted. Because petitioner is entitled to relief from
the death judgment under Atkins v. Virginia (2002) 536 U.S. 304, 321 (Atkins) and
In re Hawthorne (2005) 35 Cal.4th 40 (Hawthorne), we need not reach the penalty
phase ineffective assistance of counsel claims.

In re Lewis



The Defense can obtain court orders to get discovery from Facebook

May 24, 2018 Comments off

The Defense can obtain court orders to get discovery from Facebook

Real parties in interest Derrick Hunter and Lee Sullivan (defendants) were indicted by a grand jury and await trial on murder, weapons, and gang-related charges arising out of a drive-by shooting in San Francisco. Each defendant served a subpoena duces tecum on one or more petitioners, social media service providers Facebook, Inc. (Facebook), Instagram, LLC (Instagram), and Twitter, Inc. (Twitter) (collectively, social media providers, or simply providers). The subpoenas broadly seek public and private communications, including any deleted posts or messages, from the social media accounts of the homicide victim and a prosecution witness.
As explained below, the federal Stored Communications Act (18 U.S.C. § 2701 et seq., hereafter SCA or Act) regulates the conduct of covered service providers, declaring that as a general matter they may not disclose stored electronic communications except under specified circumstances (including with the consent of the social media user who posted the communication) or as compelled by law enforcement entities employing procedures such as search warrants or prosecutorial subpoenas. Providers moved to quash defendants’ subpoenas, asserting the Act bars providers from disclosing the communications sought by defendants. They focused on section 2702(a) of the Act, which states that specified providers “shall not knowingly divulge to any person or entity the contents of” any “communication” that is stored or maintained by that provider. They asserted that section 2702 prohibits disclosure by social media providers of any communication, whether it was configured to be public (that is, with regard to the communications before us, one as to which the social media user placed no restriction regarding who might access it) or private or restricted (that is, configured to be accessible to only authorized recipients). Moreover, they maintained, none of various exceptions to the prohibition on disclosure listed in section 2702(b) applies here. And in any event, providers argued, they would face substantial technical difficulties and burdens if forced to attempt to retrieve deleted communications and should not be required to do so.
Defendants implicitly accepted providers’ reading of the Act and their conclusion that it bars providers from complying with the subpoenas. Nevertheless, defendants asserted that they need all of the requested communications (including any that may have been deleted) in order to properly prepare for trial and defend against the pending murder charges. They argued that the SCA violates their constitutional rights under the Fifth and Sixth Amendments to the United States Constitution to the extent it precludes compliance with the pretrial subpoenas in this case.
The trial court, implicitly accepting the parties’ understanding of the SCA, agreed with defendants’ constitutional contentions, denied providers’ motions to quash, and ordered them to produce the requested communications for the court’s review in camera. Providers sought, and the Court of Appeal issued, a stay of the production order. After briefing and argument, the appellate court disagreed with the trial court’s constitutional conclusion and issued a writ of mandate, directing the trial court to quash the subpoenas. We granted review.
Our initial examination of the Act, its history, and cases construing it, raised doubts that section 2702 of the Act draws no distinction between public and restricted communications, and that no statutory exception to the prohibition on disclosure could plausibly apply here. In particular, we questioned whether the exception set out in section 2702(b)(3), under which a provider may divulge a communication with the “lawful consent” of the originator, might reasonably be interpreted to permit a provider to disclose posted communications that had been configured by the user to be public.
Accordingly, we solicited supplemental briefing concerning the proper interpretation of section 2702. In that briefing, all parties now concede that communications configured by the social media user to be public fall within section 2702(b)(3)’s lawful consent exception to section 2702’s prohibition, and, as a result, may be disclosed by a provider. As we will explain, this concession is well taken in light of the relevant statutory language and legislative history.
The parties differ, however, concerning the scope of the statutory lawful consent exception as applied in this setting. Defendants emphasize that even those social media communications configured by the user to be restricted to certain recipients can easily be shared widely by those recipients and become public. Accordingly, they argue that when any restricted communication is sent to a “large group” of friends or followers the communication should be deemed to be public and hence disclosable by the provider under the Act’s lawful consent exception. On this point we reject defendants’ broad view and instead agree with providers that restricted communications sent to numerous recipients cannot be deemed to be public — and do not fall within the lawful consent exception. Yet we disagree with providers’ assertion that the Act affords them “discretion” to defy an otherwise proper criminal subpoena seeking public communications.
In light of these determinations we conclude that the Court of Appeal was correct to the extent it found the subpoenas unenforceable under the Act with respect to communications addressed to specific persons, and other communications that were and have remained configured by the registered user to be restricted. But we conclude the court’s determination was erroneous to the extent it held section 2702 also bars disclosure by providers of communications that were configured by the registered user to be public, and that remained so configured at the time the subpoenas were issued. As we construe section 2702(b)(3)’s lawful consent exception, a provider must disclose any such communication pursuant to a subpoena that is authorized under state law.
Ultimately, whether any given communication sought by the subpoenas in this case falls within the lawful consent exception of section 2702(b)(3), and must be disclosed by a provider pursuant to a subpoena, cannot be resolved on this record. Because the parties have not until recently focused on the need to consider the configuration of communications or accounts, along with related issues concerning the reconfiguration or deletion history of the communications at issue, the record before us is incomplete in these respects. Accordingly, resolution of whether any communication sought by the defense subpoenas falls within the statute’s lawful consent exception must await development of an adequate record on remand.
We will direct the Court of Appeal to remand the matter to the trial court to permit the parties to appropriately further develop the record so that the trial court may reassess the propriety of the subpoenas under the Act in light of this court’s legal conclusions.

Facebook v. Superior Court



Prop. 47 petition for resentencing should be filed in the original sentencing court

May 22, 2018 Comments off

Prop. 47 petition for resentencing should be filed in the original sentencing court

Proposition 47 lowered the penalty for several crimes and provided a mechanism for resentencing under the more lenient provisions. The resentencing statute provides that a person “may petition for a recall of sentence before the trial court that entered the judgment of conviction.” (Pen. Code, § 1170.18, subd. (a).) Unrelated to the changes enacted by Proposition 47, if a defendant has been placed on probation in one county but permanently resides in another, the case may be transferred to the county of residence. (§ 1203.9.) The question here is where a defendant, whose probation case has been transferred, must file a petition for resentencing. We hold that the petition should be filed in the original sentencing court.

People v. Adelmann