Weekly Case Summaries€¦ · People v. Elizalde (2015) 61 Cal.4th 523, the Supreme Court held that use of a defendant's un- Mirandized responses to gang-affiliation questions, posed

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Weekly Case Summaries

Weekly Case Summaries: July 3-23, 2017

Case Name: People v. Roberts , District: 4 DCA , Division: 1 , Case #: D069355

Opinion Date: 7/18/2017 , DAR #: 6977

Case Holding:

Defendant's un-Mirandized admission of gang affiliation, made during a custodial

booking years before the commission of the current crime, was inadmissible. Roberts

was convicted of attempted murder and related offenses. Gang enhancements were found true

(Pen. Code, § 186.22, subd. (b)(1)). On appeal, he challenged the admission of un-

Mirandized gang-affiliation statements he had made during custodial bookings years prior to

the current offense. Held: Gang enhancements reversed. To prove the gang enhancement, it

must be shown that the underlying felonies were committed for the benefit of, at the direction

of, or in association with a criminal street gang and were committed with the specific intent to

promote, further, or assist in any criminal conduct by gang members. Gang membership is

not an element of the enhancement, but can be used to prove the intent required. Roberts's

gang-affiliation statements were used by the prosecution's gang expert to opine the shooting

was gang related. This was error. While a defendant may be asked routine biographical

questions during booking, questions an officer should know are reasonably likely to elicit an

incriminating response, do not fall within the so-called "booking exception" to Miranda. In

People v. Elizalde (2015) 61 Cal.4th 523, the Supreme Court held that use of a defendant's

un-Mirandized responses to gang-affiliation questions, posed during booking interviews,

violates a defendant's privilege against self-incrimination. The court here concluded it was

irrelevant that such responses were made years prior to the current offense, because "a

Miranda violation does not evaporate with the passage of time such that the statements

become cleansed and admissible as to future misdeeds." The error was prejudicial under

Chapman v. California (1967) 386 U.S. 18, requiring reversal of the gang enhancements. The

court distinguished People v. Villa-Gomez (2017) 9 Cal.App.5th 527.

The full opinion is available on the court's website here:

http://www.courts.ca.gov/opinions/documents/D069355.PDF

Case Name: Grant v. Swarthout , 9 Cir , Case #: 13-55584

Opinion Date: 7/7/2017 , DAR #: 6710

Case Holding:

Federal habeas petitioner entitled to equitable tolling of the AEDPA statute of

limitations where he acted diligently while waiting for a prison account certificate from

his prison counselor. Grant filed a pro se federal habeas petition challenging his state first

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degree murder conviction. The state moved to dismiss the petition as barred by the AEDPA

one-year statute of limitations. Grant argued he was entitled to equitable tolling from the time

he requested a certificate showing the amount of money in his prison account (which was

required for him to file his petition in forma pauperis) until the time he received the

certificate. If equitable tolling applied, his petition would have been timely. The district court

dismissed the petition as untimely, finding Grant was not entitled to equitable tolling because

he requested the prison account certificate on the 354th day of the 365-day limitations period,

and had not shown that he was diligent throughout the entire 354 days prior to the filing of

his state habeas petition. Held: Reversed. A petitioner is entitled to equitable tolling where he

demonstrates an extraordinary circumstance prevented timely filing and that he acted

diligently. With respect to diligence, the relevant consideration is whether the petitioner was

diligent during the time the extraordinary circumstance prevented timely filing, and the

district court improperly considered whether Grant was diligent before the extraordinary

circumstance arose. Here, Grant could not file his federal petition without the prison account

certificate. The time during which he was waiting for the prison account certificate was an

extraordinary circumstance that justified equitable tolling because Grant was entirely

dependent on prison officials to provide him with the certificate. Grant acted diligently while

waiting for his certificate and filed his petition the day he received his certificate. He was

entitled to equitable tolling and his federal petition was therefore timely. [Editor's Note: The

court did not decide whether a petitioner is required to exercise diligence after an

extraordinary circumstance had ended.]


http://cdn.ca9.uscourts.gov/datastore/opinions/2017/07/07/13-55584.pdf

Case Name: Menefield v. Board of Parole Hearings , District: 3 DCA , Case #: C083356

Opinion Date: 6/21/2017 , DAR #: 6750

Case Holding:

Regulation allowing Board of Parole Hearings to consider "serious misconduct in

prison or jail" in determining parole suitability is sufficiently clear. Menefield, a life

inmate, filed a petition for writ of mandate challenging the validity of California Code of

Regulations, title 15, section 2402, subdivision (c)(6), which provides that an inmate's

"serious misconduct in prison or jail" can tend to show his unsuitability for parole. Menefield

argued the regulation lacks clarity because it does not define "serious misconduct" and fails

to inform prisoners that they may be denied parole for committing minor or administrative

infractions. The trial court sustained the Board's demurrer to the clarity claim without leave to

amend. Menefield appealed. Held: Petition denied. A regulation is drafted with "clarity" if the

meaning of the regulation will be easily understood by those directly affected by it. Section

2402, subdivision (c) sets forth the circumstances tending to show unsuitability for parole.

Although it does not define "serious misconduct," life prisoners are generally familiar with

the term because it is defined in a related regulation, section 3315, which is also applicable to

life prisoners. Thus, the term is clear to those directly affected by it. Furthermore, life

prisoners are on notice that minor and administrative misconduct can be considered when

determining parole suitability. Section 2402, subdivision (c) is not an exhaustive list of

factors showing unsuitability for parole and the Board is allowed to consider all relevant and

reliable available information. Moreover, subdivision (d) contains a separate list of factors

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tending to show suitability for parole, including an inmate's "institutional behavior indicating

an enhanced ability to function within the law." Thus, section 2402 as a whole adequately

informs life prisoners and the Board that minor and administrative misconduct can be

considered when determining a life prisoner's unsuitability for parole. [Editor's Note: The

court denied Menefield's request for leave to amend his petition to include a claim that

section 2402, subdivision (c)(6) is unconstitutionally vague.]


http://www.courts.ca.gov/opinions/documents/C083356.PDF

Case Name: People v. Webb , District: 1 DCA , Division: 3 , Case #: A147740

Opinion Date: 7/12/2017 , DAR #: 6855

Case Holding:

Trial counsel was not ineffective for failing to move to dismiss identity theft charge

under the Williamson rule. A police officer stopped Webb, who was sitting in a recently

stolen car. Webb refused to identify himself but said he had identification in his pocket. The

officer retrieved the identification and asked for Webb's real name, as Webb did not look like

the person depicted in the driver's license. Webb then provided his name. A jury convicted

Webb of identity theft (Pen. Code, § 530.5, subd. (a)) and other offenses. On appeal, Webb

argued his trial attorney provided ineffective assistance by failing to move to dismiss the

identity theft charge under In re Williamson (1954) 43 Cal.2d 651. Held: Affirmed. Under the

Williamson rule, if a general statute includes the same conduct as a special statute, the court

infers that the Legislature intended that conduct to be prosecuted exclusively under the

special statute. The Williamson rule applies when a violation of the special statute will

necessarily or commonly result in violation of the general statute. Here, Webb argued that

under the Williamson rule, his conduct supporting the identity theft conviction could only be

prosecuted under either Penal Code section 148.9 (false representation of identity to a peace

officer) or Vehicle Code section 31 (false information to a police officer). The court agreed

that providing false personal identification to a police officer would necessarily establish a

violation of these two statutes. However, that would not be sufficient to support a conviction

for identity theft, because section 530.5 requires the prosecution to prove that the defendant

also obtained and used the personal information without the consent of the person whose

identifying information he was using. Because a violation of section 148.9 would not

necessarily or commonly result in a violation of section 530.5, the Williamson rule does not

apply and trial counsel was not ineffective for failing to move to dismiss the identity theft

charge on this ground.

The criminal laboratory analysis fee and drug program fee are not subject to penalty

assessments. The trial court imposed, among other fees, a criminal laboratory analysis fee

(Health & Saf. Code, § 11372.5) and a drug program fee (Health & Saf. Code, § 11372.7).

Defendant argued the court erred in imposing penalty assessments on these fees. After

analyzing the relevant case law and acknowledging that a conflict in the case law will

presumably need to be resolved by the California Supreme Court, the court agreed that the

laboratory analysis fee and drug program fee are not subject to penalty assessments. Because

it is not clear from the statute whether these levies are fines or fees, the purpose for which the

charges are imposed determines whether they are fines or fees. In People v. Alford (2007) 42

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Cal.4th 749, the court held the court security fee (Pen. Code, § 1465.8) is not punitive in part

because it had a rational connection to a non-punitive purpose and the amount of the fee is

not dependent on the seriousness offense. Like the court security fee, the laboratory analysis

fee and drug program fee serve a primarily administrative function. Neither fee is sufficiently

great to serve as a deterrent, and neither fee is linked to the seriousness of defendant's

criminal conduct. The laboratory analysis fee is fixed at $50, and the drug program fee

depends not on the severity of the offense but on defendant's ability to pay, and may not

exceed $150. Because the fees are non-punitive, the trial court erred in imposing penalty

assessments on those fees. The court agreed with People v. Watts (2016) 2 Cal.App.5th 223.


http://www.courts.ca.gov/opinions/documents/A147740.PDF

Case Name: In re Albert C. , CalSup , Case #: S231315

Opinion Date: 7/10/2017 , DAR #: 6764

Case Holding:

County juvenile court protocol limiting detention of incompetent minors to 120 days,

which was not adopted pursuant to any mechanism vesting it with legal authority, does

not presumptively or otherwise define due process. The district attorney filed two petitions

to have Albert C. declared a ward of the juvenile court. He was found incompetent and the

juvenile court suspended proceedings. While proceedings were suspended Albert was held in

juvenile hall for approximately 13 months, despite a Los Angeles County juvenile court

protocol limiting the detention of incompetent minors to 120 days. The court later found

Albert was malingering and reinstated proceedings. He subsequently admitted two counts

pursuant to a plea agreement and was declared a ward. On appeal, he argued his detention

beyond 120 days violated due process. The Court of Appeal affirmed, and the Supreme Court

granted review. Held: Affirmed. Like adults, juveniles have a due process right to be free

from indefinite commitment if found incompetent to stand trial, and the nature and duration

of their commitment must bear some reasonable relation to the purpose for which they are

committed. While courts are not prohibited from establishing time limits concerning the

detention of incompetent minors, the protocol in this case was not adopted as a local rule, was

not authorized by any state statute, and was not adopted by the trial court in Albert's case as

an exercise of its inherent authority to control the proceedings. Because it lacks the force of

law, a violation of the protocol does not, in and of itself, give rise to a claim for relief. The

court disapproved of In re Jesus G. (2013) 218 Cal.App.4th 157, on which Albert relied, to

the extent its reasoning treats the protocol as a presumptive definition of the substantive

scope of due process. The court did not decide whether the length of Albert's detention

violated due process, concluding any violation was not prejudicial in light of the juvenile

court's finding of malingering.


http://www.courts.ca.gov/opinions/documents/S231315.PDF

Case Name: In re Jeffrey G. , District: 1 DCA , Division: 1 , Case #: A149067

Opinion Date: 7/13/2017 , DAR #: 6890

Case Holding:

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NGI defendant denied transfer to conditional release program was entitled to reversal

under People v. Sanchez (2016) 63 Cal.4th 665 because case-specific facts without

independent evidentiary support were presented at his hearing. In 1990, defendant was

found not guilty by reason of insanity (NGI) of a violent crime and committed to the State

Department of Hospitals. In 2015, he petitioned for transfer from the state hospital to a

conditional release program. At a hearing on his petition, he presented expert testimony as to

his readiness for transfer and the state presented expert testimony in rebuttal. The court

denied the petition. Less than two weeks later, Sanchez was decided, which substantially

limited expert testimony with respect to case-specific hearsay evidence. Defendant appealed,

arguing reversal was warranted under Sanchez. Held: Reversed. Under the law in effect at the

time of defendant's hearing, an expert was permitted to testify to hearsay evidence the expert

relied on in forming his opinion, regardless of whether there was competent evidence in the

record to support that testimony. Sanchez now bars such testimony unless there is direct

evidence of the matter or the hearsay evidence was admitted under an appropriate exception.

Here, the prosecution's experts gave hearsay-based testimony about defendant's history and

his conduct during confinement, some of which was unsupported by independent evidence in

the record. This included testimony that defendant was hostile and aggressive and had spotty

attendance at treatment programs. The admission of this testimony prejudiced defendant

because it was a "close case" and of the three critical factors the court relied on in denying his

petition, one (defendant's poor attendance) was unsupported by the record. Thus, it was

reasonably probable defendant would have been found suitable for release without the

unsupported hearsay evidence. The court reversed and remanded for a new hearing. [Editor's

Note: The court also concluded defendant did not forfeit the Sanchez issue because a hearsay

objection would have been futile under the law in effect at the time; thus, the court did not

consider defendant's argument that trial counsel was ineffective for failing to objection on

hearsay grounds.]



Case Name: Godoy v. Spearman , 9 Cir , Case #: 13-56024

Opinion Date: 6/30/2017 , DAR #: 6441

Case Holding:

Habeas petitioner entitled to evidentiary hearing as to whether juror texting "judge

friend" prejudiced the verdict. Following his conviction for second degree murder, Godoy

moved for a new trial on the ground that Juror 10 had communicated about the case over text

with a "judge friend" during trial. Godoy supplied a declaration from alternate juror N.L.

describing Juror 10's conduct. The trial court denied the motion without a hearing. After

exhausting state court remedies, Godoy filed a federal habeas petition, which was denied. He

appealed to the Ninth Circuit. Held: Reversed after rehearing en banc. When a defendant

alleges improper conduct between a juror and an outside party, a two-step framework applies.

At step one, the court asks whether the conduct was "possibly prejudicial." If so, the contact

is deemed presumptively prejudicial, and the burden shifts to the state to establish the contact

was harmless (step two). When the presumption arises but the prejudicial impact is unclear

from the existing record, the court must hold a hearing to determine prejudice. Here, the state

court correctly found that N.L.'s declaration established a presumption of prejudice.

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However, instead of requiring the state to rebut this presumption, the court held the

presumption was rebutted because nothing in N.L.'s declaration suggested the "judge friend"

communicated prejudicial information. This improperly placed the burden on Godoy. The

court then relied on the same statement in N.L.'s declaration to both raise the presumption

and rebut the presumption of prejudice, which was error because the presumption can only be

rebutted by "other, contrary evidence." Finally, the court required Godoy to show a "strong

possibility" of prejudice to obtain an evidentiary hearing, even though an evidentiary hearing

is required when the prejudicial impact is unclear from the existing record. These holdings

were contrary to clearly established federal law. The court remanded for a hearing to

determine the prejudicial impact of Juror 10's conduct.



Case Name: Hall v. Haws , 9 Cir , Case #: 14-56159

Opinion Date: 7/3/2017 , DAR #: 6507

Case Holding:

Extraordinary circumstances warranted reopening of habeas petitioner's case under

Federal Rule of Civil Procedure 60(b)(6) in light of petitioner's belief that he was jointly

pursuing relief in codefendant's habeas proceedings, where relief was granted. Following a joint trial, Hall and codefendant Sherrors were convicted of first degree murder.

After exhausting state court remedies on a claim of instructional error, Hall filed a pro se

habeas petition in federal court. Because the petition contained one unexhausted claim, the

district court ordered Hall to voluntarily dismiss his petition or file a notice of abandonment

of the unexhausted claim. Hall failed to do either because he mistakenly believed he was

jointly pursing the instructional claim in codefendant Sherrors' habeas proceedings, and the

district court dismissed Hall's petition without prejudice. After Sherrors was granted habeas

relief, Hall filed a motion the district court ultimately construed as a motion for relief from

judgment. The court granted Hall's motion under Rule 60(b)(6), reopened the case, and

granted habeas relief. The state appealed. Held Affirmed. In certain circumstances, a district

court may relieve a party from a final judgment under Rule 60(b), which applies in the habeas

context to the extent it is not inconsistent with AEDPA. Under Rule 60(b)(6), a movant must

show extraordinary circumstances justifying relief. Hall made that showing here. Hall's

petition was dismissed without reaching the merits of the claim, while his codefendant was

granted habeas relief on the very same claim based on the same error at the same trial. Hall

did not comply with the district court’s order because he believed he was a "co-submitter" in

Sherrors' filings. Given Hall's reliance on Sherrors and their history of shared proceedings in

state court, the district court did not err in concluding Hall was diligent and his delay

reasonable. Furthermore, Hall's Rule 60(b) motion was not inconsistent with AEDPA as it did

not violate the ban on successive habeas petitions or the exhaustion requirement, and

AEDPA's statute of limitations did not apply.

State court unreasonably applied clearly established federal law in finding that

instructional error was not of constitutional magnitude. The trial court gave a jury

instruction (CALJIC 2.15) which permitted the jury to infer that Hall and Sherrors murdered

the victim based on their possession of the victim's property plus slight corroborating

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evidence. This was error under People v. Prieto (2003) 30 Cal.4th 226, which held that use of

CALJIC 2.15 in nontheft offenses is improper because proof the defendant was in possession

of recently stolen property does not lead to the conclusion the defendant committed a rape or

murder. Here, the Court of Appeal recognized the error, but found the error harmless under

the Watson standard of prejudice, which California state courts use to review non-

constitutional trial errors. However, a "permissive inference" violates due process when the

presumed fact does not follow from the facts established, and here proof that Hall possessed

the victim's class ring sometime after the murder did not make it "more likely than not" that

Hall killed the victim. Thus, the instruction violated due process and the state court's finding

that the error was not of constitutional magnitude was unreasonable.

Petitioner is entitled to habeas relief because the instructional error was not harmless. Habeas relief on a trial error claim is only appropriate if the error results in actual prejudice.

Under the Brecht v. Abrahamson (1993) 507 U.S. 619, 637, test for actual prejudice, relief is

proper only if the federal court has grave doubts about whether the error had a substantial and

injurious effect or influence in determining the jury's verdict. In this case, the victim was

found in a pumpkin patch, stabbed 83 times. The prosecution’s evidence relied

overwhelmingly on the testimony of one witness, who took a plea deal in exchange for her

testimony. Her story changed numerous times and was contradicted by other evidence and

witnesses at trial. Aside from her testimony, the only other evidence against Hall was his

possession of the victim's ring and his presence in the passenger seat of the victim's car a few

days after the murder. Because the erroneous jury instruction allowed the jury to infer that

Hall committed the murder based on the "time, place, and manner" of his possession of the

victim's property, grave doubt existed as to whether the jury would have convicted Hall

without the unconstitutional permissive inference instruction. Thus, Hall is entitled to relief.



Case Name: People v. Hopson , CalSup , Case #: S228193

Opinion Date: 7/3/2017 , DAR #: 6529

Case Holding:

Admission of deceased accomplice's confession violated defendant's Sixth Amendment

confrontation rights where confession was used for the truth. Hopson was tried on

charges that she, along with her boyfriend (Thomas), was responsible for the murder of her

housemate (Brown). After Thomas confessed that he assaulted Brown at Hopson's direction,

he committed suicide in jail. At trial, Hopson testified that Thomas killed Brown, and related

statements and threats Thomas made to her, which were admitted to show Hopson's state of

mind in assisting him with the coverup. In rebuttal, the prosecution introduced Thomas's full

confession, which cast Hopson as the direct perpetrator of the murder. Hopson was convicted

of first degree murder with special circumstances and sentenced to LWOP. She appealed and

the Court of Appeal affirmed. The California Supreme Court granted review. Held: Reversed.

The Sixth Amendment prohibits the introduction of testimonial statements by a nontestifying

witness, unless the witness is available to testify, and the defendant had a prior opportunity

for cross-examination. (Crawford v. Washington (2004) 541 U.S. 36.) However, this rule

does not bar admission of testimonial statements for nonhearsay purposes. Here, the issue

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was whether Thomas's confession was used for a permissible nonhearsay purpose or for the

truth. Although the confession was purportedly introduced to impeach Hopson's testimony

about the statements Thomas made to her, the jury was not informed of this limited purpose

and the prosecution did not use it that way. Instead, the prosecution relied on the confession

to establish a different account of events and expressly and repeatedly invited the jury to

consider the confession for its truth, arguing in closing that Thomas's version was true and

Hopson's version was false. Because it was clear Thomas's confession was used for its truth,

and Hopson had no opportunity for cross-examination, Hopson's confrontation right was

violated. The court distinguished Tennessee v. Street (1985) 471 U.S. 409.

Defendant's testimony did not "open the door" to admission of accomplice's full

confession for its truth. The Attorney General argued that even if Thomas's confession was

used for its truth, Hopson had "opened the door" by testifying about what Thomas said to her;

these statements implicated only Thomas and left the false impression that those were the

only statements he made about the crime. The court disagreed. Even if Hopson's testimony

left this impression (which it did not), the admission of Thomas's full confession went well

beyond the scope of what would have been necessary to dispel it. Furthermore, the

prosecution could have objected to Hopson's testimony or asked for a limiting instruction

instead of waiting until her direct examination was over and introducing the full confession in

rebuttal. The court declined to recognize an opening the door exception to the confrontation

right or to decide the scope of such an exception, and held only that, in this case, Hopson's

testimony did not give the prosecution carte blanche to introduce her accomplice's full,

unconfronted extrajudicial confession for its truth. The court reversed and remanded for

determination of whether the violation of Hopson's rights was harmless.



Case Name: People v. Resendez , District: 2 DCA , Division: 8 , Case #: B269608

Opinion Date: 6/30/2017 , DAR #: 6485

Case Holding:

There was no error under People v. Prunty where the record provided substantial

evidence of collaboration, association, and direct contact among the subsets of the East

Side Bolen gang. A jury convicted Resendez of assault by means of force likely to cause

great bodily injury with a gang enhancement and assault with a deadly weapon. There was

evidence that Resendez was a member of the Locos subset of the East Side Bolen gang,

which was composed of five smaller subsets. An expert testified about predicate offenses

committed by members of the Rascals subset. Resendez, representing himself at trial, called

two individuals as character witnesses. One was a member of the Rascals subset and the other

was a member of the Midgetcharros subset. On appeal, Resendez relied on People v. Prunty

(2015) 62 Cal.4th 59 to argue that the prosecution failed to present sufficient evidence of

predicate offenses to establish the existence of a criminal street gang. Held: Affirmed. When

a prosecutor shows the defendant committed a felony to benefit a given gang, but establishes

the necessary predicate offenses were committed by members of the gang's subsets, the

prosecutor "must prove a connection between the gang and the subsets." (People v. Prunty,

supra, 62 Cal.4th at 67-68.) In contrast to the lack of evidence showing collaboration among

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the gang's subsets in Prunty, there was ample evidence in this case showing contacts among

the various subsets and that members of the subsets all self-identified with the East Side

Bolen gang. There was evidence that the gang claimed a well-defined territory, had only 20

active members out of custody, and that it was common for members of the Locos and

Rascals subsets to hang out. Additionally, testimony from Resendez's two character witnesses

provided direct evidence of a long-term relationship of trust, collaboration, and loyalty

between the members of the different subsets.


http://www.courts.ca.gov/opinions/documents/B269608.PDF

Case Name: In re Taitano , District: 1 DCA , Division: 5 , Case #: A147412

Opinion Date: 7/5/2017 , DAR #: 6631

Case Holding:

A trial court may not conduct a competency hearing after a defendant is adjudicated

mentally incompetent to stand trial, found unlikely to regain competence, and has

served the maximum commitment term. In 2011, Taitano was found incompetent to stand

trial for murder and other offenses and was committed to the state hospital for treatment. In

2013, the state hospital reported that Taitano was still incompetent and was unlikely to regain

competency in the foreseeable future. When he was returned to court for further proceedings,

the court referred him to the public guardian to investigate a conservatorship. Ultimately, no

conservatorship was filed because Taitano was not gravely disabled and his dangerousness

was not the result of mental illness. Taitano filed a habeas petition seeking his release. The

prosecution asked the trial court to conduct a new competency hearing. The trial court

refused, finding no statutory basis to do so. It granted Taitano's habeas petition and ordered

him released. The prosecution appealed. Held: Affirmed. The due process clause of the

Fourteenth Amendment and state law (Pen. Code, § 1367) prohibit the state from trying and

convicting a defendant who is mentally incompetent to stand trial. Once found incompetent, a

defendant who remains committed due to incompetency must be returned to court after either

three years or the maximum period of imprisonment for the most serious charged offense,

whichever is shorter. If the accused is "gravely disabled," the court must order the

commencement of conservatorship proceedings. If the defendant remains incompetent but is

not gravely disabled, the court must release him from confinement. The only time the statute

expressly authorizes a defendant's return to court for a competency hearing is at the 18-month

commitment mark (Pen. Code, § 1370, subd. (b)(4)). Otherwise, the trial court has no

jurisdiction to convene a competency hearing while criminal proceedings are suspended. The

prosecution failed to show that the trial court had express or implied authority to hold a new

competency hearing under the circumstances of this case.



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Case Name: People v. Valencia , CalSup , Case #: S223676

Opinion Date: 7/3/2017 , DAR #: 6549

Case Holding:

Proposition 47's definition of "unreasonable risk of danger to public safety" does not

apply to resentencing petitions filed under Proposition 36. Valencia was given a Three

Strikes life sentence for his 2009 conviction of corporal injury to a spouse. Following the

passage of the Three Strikes Reform Act in 2012, he petitioned for resentencing, but the trial

court found he posed an unreasonable risk of danger to public safety. On appeal Valencia

argued that Proposition 47's narrow definition of "unreasonable risk of danger" applies in a

Proposition 36 resentencing. The California Supreme Court granted review after his sentence

was affirmed. Held: Affirmed. The Reform Act amended the Three Strikes law to reserve life

sentences to cases where the current felony is serious or violent. It provides a procedure

whereby qualified defendants who are already serving a Three Strikes life term may seek

resentencing, but allows the trial court to deny the petition if it finds the defendant poses an

unreasonable risk of danger to public safety. Proposition 47 reclassified certain theft and

drug-related felonies to misdemeanors and also set up a procedure for qualified defendant's to

seek resentencing (Pen. Code, § 1170.18, subd. (a)). In contrast to Proposition 36, Proposition

47 limits the court's discretion to deny the petition by providing that, "as used throughout this

Code, unreasonable risk of danger to public safety" means the risk the petitioner will commit

a new violent "super strike" felony. The words "as used throughout this Code," though plain

when viewed in isolation, become ambiguous when read in light of the subject matter of

Proposition 47 and in the context of section 1170.18, subdivision (c). Neither the ballot

materials nor the impact analyses for Proposition 47 gave notice to voters that the measure

would amend the Reform Act. In addition, Proposition 47 contains no discussion of

resentencing Three Strikes inmates. To effectuate the voters' intent, the ambiguity in wording

must be resolved by holding that section 1170.18, subdivision (c)'s definition of

"unreasonable risk of danger" does not apply in a Proposition 36 resentencing.

Refusing to construe Proposition 47's definition of "unreasonable risk of danger" as

applying to petitions filed under the Strikes Reform Act does not violate equal

protection or due process. The concept of equal protection requires that persons who are

similarly situated with respect to a law's legitimate purposes must be treated equally. Those

defendants resentenced under Proposition 36 are not similarly situated to those resentenced

under Proposition 47. Proposition 47 focuses on offenders convicted of certain low-level,

nonserious, nonviolent drug and theft felonies which have been reduced to misdemeanors.

Proposition 36, however, applies to recidivist offenders who have two or more prior

convictions for serious and/or violent felonies, but whose commitment offense was not

serious or violent, and who are serving a life Three Strikes sentence.



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Case Name: People v. Superior Court (Walker) , District: 4 DCA , Division: 1 , Case #:

D071461

Opinion Date: 6/8/2017 , DAR #: 5459

Case Holding:

The Estrada qualification to the presumption of prospective application of statutes does

not apply to Proposition 57. In 2012, Walker was charged by direct filing in adult court with

attempted murder and related crimes committed when he was 17 years old, and was awaiting

retrial when Proposition 57 passed in November 2016. Walker subsequently filed a motion to

transfer his case to juvenile court in light of Proposition 57, which eliminated the People's

ability to directly file criminal charges against juvenile offenders in adult court and requires a

transfer hearing in front of a juvenile court judge before a juvenile can be tried in adult court.

The trial court granted Walker's motion and the People filed a petition for writ of

mandate/prohibition seeking to vacate the trial court's transfer order. Held: Petition granted.

Generally, laws operate prospectively only. However, In re Estrada (1965) 63 Cal.2d 740,

sets forth an exception to that rule and provides that a new law that lessens punishment

should apply to all defendants whose judgments are not yet final on the statute’s operative

date. Here, the court concluded that Estrada does not apply because Proposition 57 does not

mitigate the penalty for a particular offense, its procedure for transferring a case from

juvenile court to adult court does not resemble the clear-cut reduction in penalty involved in

Estrada, and applying Proposition 57 to cases pending in adult court and on appeal would, in

many case, be procedurally complex. The court disagreed with People v. Vela (2017) 11

Cal.App.5th 68).

Application of Proposition 57 to defendant awaiting retrial when Proposition 57 passed

is retroactive, not prospective, application of the law. Walker also argued that the trial

court properly applied Proposition 57 to his case because applying the proposition to a

juvenile offender who has yet to be tried in adult court constitutes a prospective application of

the law. The Court of Appeal disagreed. While a law governing the conduct of trials is

applied prospectively when it is applied to conduct in the future (such as a trial that has not

yet occurred), applying a change in the law to a pretrial procedure that has already occurred

constitutes an impermissible retroactive application of the law. (See Tapia v. Superior Court

(1991) 53 Cal.3d 282.) The amendments brought about by Proposition 57 pertain to the filing

of charges. In Walker's case, the filing of charges was complete several years before

Proposition 57 became effective. Thus, applying Proposition 57's filing provisions to Walker

is retroactive application of the law. The court disagreed with People v. Mendoza (2017) 10

Cal.App.5th 327 and People v. Superior Court (Lara) (2017) 9 Cal.App.5th 753 to the extent

those cases held to the contrary, and vacated the trial court's order transferring Walker's case

to adult court.

The adult court still has jurisdiction over Walker's case notwithstanding the

amendments to Welfare and Institutions Code section 602. As amended by Proposition

57, section 602 provides that "except as provided in section 707, any person under 18 years of

age when he or she violates [the law] . . . is within the jurisdiction of the juvenile court."

Walker argued that under the language of section 602, the moment Proposition 57 became

effective all juvenile defendants prosecuted in adult court without a transfer hearing fell under

the jurisdiction of the juvenile court, and the adult court no longer had jurisdiction over those

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cases. The Court of Appeal disagreed, concluding that section 602 does not contain any

express restriction on the jurisdiction of the adult court or any language indicating that the

juvenile court's jurisdiction is exclusive. Thus, section 602 does not "oust the Adult Court of

jurisdiction" over cases that were pending in adult court when Proposition 57 was enacted.

Refusing to apply Proposition 57 retroactively does not violate defendant's equal

protection rights. The right to equal protection requires that people who are similarly

situated with respect to the law's legitimate purpose must be treated equally. However, even

assuming that Walker is similarly situated to juveniles who committed offenses and/or had

felony complaints filed against them after the effective date of Proposition 57, the disparate

treatment has a rational basis: a rational voter could reasonably conclude that prospective

application of the law would serve the legitimate goal of judicial economy by avoiding

invalidation of proceedings already conducted in adult court for juvenile defendants against

whom charges were properly directly filed in adult court under the law in effect prior to

Proposition 57. The court disagreed with Walker's argument that strict scrutiny should apply,

observing that the classification at issue was based not on age but on when the crime was

committed or when the complaint was filed. Walker also failed to establish that Proposition

57 impinged on any fundamental rights of children. Thus, rational basis scrutiny applied.


http://www.courts.ca.gov/opinions/documents/D071461.PDF

Case Name: People v. Carothers , District: 3 DCA , Case #: C078874

Opinion Date: 7/12/2017 , DAR #: 6832

Case Holding:

A prior out-of-state conviction may render an inmate ineligible for resentencing under

Proposition 36. In 2008, Carothers was convicted of unlawfully taking or driving a vehicle

(Pen. Code, § 10851, subd. (a)) and admitted two prior strike convictions, a 1975 robbery in

California and a 1978 murder in Texas. He was sentenced to 25 years to life under the Three

Strikes law. In November 2014, after the passage of Proposition 36, Carothers filed a petition

to recall his sentence, arguing that the statute did not contemplate out-of-state convictions as

disqualifying offenses, and even if it did, the record of his Texas murder conviction did not

necessarily show he committed murder as defined under California law. The trial court

concluded that Carothers' Texas murder conviction was a disqualifying offense and denied

his petition. Carothers appealed. Held: Reversed. Under Proposition 36, an inmate is not

eligible for resentencing if he or she has a prior conviction for any offense appearing in

section 667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv) (also

called "super strike" offenses). One of the listed offenses is "[a]ny homicide offense,

including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive." (Pen.

Code, §§ 667, subd. (e)(2)(C)(iv)(IV), 1170.12, subdivision (c)(2)(C)(iv)(IV).) Sections 667,

subdivision (e)(2)(C)(iv), and 1170.12, subdivision (c)(2)(C)(iv) both refer to that section's

definition of "prior serious and/or violent conviction for a felony." The definition includes

prior convictions in other jurisdictions that meet certain criteria. After analyzing the statutes,

the Court of Appeal concluded that "[a]n inmate is not eligible for resentencing under section

1170.126 if he or she has a prior out-of-state conviction for an offense that, if committed in

California, includes all of the elements of any of the super strike offenses appearing in section

13

667, subdivision (e)(2)(C)(iv), or section 1170.12, subdivision (c)(2)(C)(iv)."

The trial court erred in concluding that defendant's 1978 Texas murder conviction

disqualified him from being resentenced under Proposition 36. The Court of Appeal also

considered whether Carothers' 1978 Texas murder conviction, if committed in California,

included all the elements of a super strike offense. The only facts in the record about the

offense were that Carothers killed the victim by stabbing him with a knife and hitting him on

the head with a blunt object. He was convicted of violating Texas Penal Code section 19.02,

which provides that a defendant commits murder if he or she "intends to cause serious bodily

injury and commits an act clearly dangerous to human life that causes the death of an

individual." The court here concluded that this offense is most analogous, but not identical, to

implied malice murder in California (Pen. Code, §§ 187, 188), which requires that the

defendant have a subjective awareness of the risk of death. In Texas, a finding that a

defendant intended to cause serious bodily injury does not necessarily include a finding that

the defendant was subjectively aware of the risk of death. While the Texas jury found

Carothers' actions were objectively and clearly dangerous to human life, depending on the

circumstances, it is possible Carothers did not subjectively register the danger. Based on the

sparse record in the case, the court concluded that the record of the Texas murder conviction

did not establish each element of a California murder. The court disagreed with the Attorney

General's argument that an intent to inflict great bodily injury, regardless of whether or not

the defendant was subjectively aware of the risk of death, will suffice to establish malice

aforethought. The matter was remanded to the trial court for a determination as to whether

resentencing Carothers would pose an unreasonable risk of danger to public safety.


http://www.courts.ca.gov/opinions/documents/C078874.PDF

Case Name: People v. Turner , District: 1 DCA , Division: 1 , Case #: A147603

Opinion Date: 7/10/2017 , DAR #: 6817

Case Holding:

The trial court properly admitted evidence of defendant's prior possession of

ammunition to impeach his specific testimony suggesting the police planted the

contraband in his bag. Turner was arrested after refusing to leave a restaurant. During an

inventory search, officers found a revolver, ammunition, and drugs in his duffel bag. During

his trial, the court allowed the prosecution to impeach Turner with his prior arrest for

possessing the same type of ammunition about a month before his arrest in this case. On

appeal, Turner argued that the trial court erred by admitting evidence of his previous arrest.

Held: Affirmed. Prior misconduct can be admissible to impeach a witness by suggesting a

particular aspect of the witness's testimony is untrue. (Andrews v. City and County of San

Francisco (1988) 205 Cal.App.3d 938, 947.) Turner testified on direct examination that he

knew he did not have ammunition in his bag at the time of arrest, and the first time he found

out about the contraband was when he returned to the police station to claim his bag. He did

not testify that he never possessed ammunition. The trial court allowed the prosecution to

impeach Turner with his prior arrest because he opened the door to the implication that

officers planted the contraband. There is no requirement that impeachment evidence directly

contradict a witness's testimony to be admissible; it need only tend to prove that the witness is

14

not credible. (See Evid. Code, § 280.) The evidence of Turner's prior possession of

ammunition cast doubt on his defense and "was valid to impeach his testimony because it

undermined his credibility about the incident in question." Additionally, the trial court did not

abuse its discretion in declining to exclude the evidence under Evidence Code section 352.

Trial court did not err in denying defendant's motion to suppress evidence found during

an inventory search after his arrest because police had probable cause to arrest him for

interfering with a business establishment. Prior to trial, Turner moved to suppress the

evidence discovered in his bag during the inventory search. The trial court denied the motion.

On appeal, Turner argued that the trial court erred by denying his motion to suppress. The

Court of Appeal disagreed. The determinative issue on appeal was whether there was

probable cause to support Turner's arrest for interfering with a business establishment under

Penal Code section 602.1, subdivision (a). Probable cause to arrest exists if facts known to

the arresting officer would lead a reasonable person to suspect that an individual is guilty of a

crime. (People v. Kraft (2000) 23 Cal.4th 978, 1037.) Section 602.1, subdivision (a) provides

that "[a]ny person who intentionally interferes with any lawful business or occupation carried

on by the owner or agent of a business establishment open to the public, by obstructing or

intimidating those attempting to carry on business, or their customers, and who refuses to

leave the premises of the business establishment after being requested to leave by the owner

or the owner's agent, or by a peace officer acting at the request of the owner or owner's agent,

is guilty of a misdemeanor . . . ." Turner acknowledged that he refused to leave when asked to

do so but argued that this refusal alone does not establish his intent to interfere with the

restaurant's business. However, Turner was asked multiple times over a span of hours to leave

the restaurant, and the manager had to interrupt her duties to ask him to leave, to call the

police, speak to the officer, and fill out paperwork. The officer had reasonable suspicion that

Turner was guilty of violating section 602.1. Turner's arrest and the subsequent inventory

search were valid.



Case Name: In re I.F. , District: 1 DCA , Division: 3 , Case #: A146979

Opinion Date: 6/16/2017 , DAR #: 6436

Case Holding:

Juvenile court erred by failing to apply new statute governing the sealing of juvenile

records (Welf. & Inst. Code, § 786) in appellant's case where his petition to seal his

records was pending on the January 1, 2015 effective date of the statute. In juvenile

delinquency proceedings, I.F. admitted grand theft and was placed on probation. The juvenile

court ultimately found that I.F. successfully completed probation and terminated jurisdiction

and wardship. In December 2014, I.F. filed a petition to seal his juvenile records under

Welfare and Institutions Code former section 781, subdivision (a). In October 2015, based on

the probation department's finding that "rehabilitation had not been attained" as required by

former section 781, the juvenile court denied the petition. I.F. appealed and argued that the

juvenile court should have applied newly enacted section 786, not section 781, when ruling

on his record sealing request. Held: Reversed. Section 786 became effective on January 1,

2015 and provides that a juvenile court shall seal the records of a minor who satisfactorily

15

completes probation for any offense that is not listed in Welfare and Institutions Code section

707, subdivision (b). There is a presumption that statutes apply prospectively in the absence

of a clearly expressed contrary intent. After considering the factors set forth in Californians

for Disability Rights v. Mervyn's LLC (2006) 39 Cal.4th 223, the Court of Appeal determined

that applying section 786 under the circumstances of I.F.'s case would be a prospective

application of the statute, not a retroactive application. Section 786 is a change in the

procedural rules for sealing juvenile records rather than imposition of new or different

liabilities for committing criminal conduct. Therefore, I.F.'s petition to seal his records should

be governed by the version of section 786 in effect at the time of the juvenile court's

adjudication of the petition. The case was remanded for reconsideration.



Case Name: United States v. Luna Zapien , 9 Cir , Case #: 14-10224

Opinion Date: 7/3/2017 , DAR #: 6583

Case Holding:

Biographical questions asked during a routine booking procedure after defendant's

invocation of his right to counsel did not amount to interrogation because they were not

reasonably likely to elicit an incriminating response. Defendant was arrested on suspicion

of possessing and selling drugs. An officer read defendant his Miranda rights in Spanish, and

he said he understood and was willing to speak to officers. After five minutes of questioning,

defendant invoked his right to counsel. The officer then explained that he was no longer

going to ask questions about the evidence but he needed biographical information for a form.

During these questions, defendant told the officers he wanted to give a statement regarding

the crime. The officers reminded him of his constitutional rights, but defendant said he

wanted to speak without an attorney present and admitted to selling drugs. Before trial,

defendant filed a motion to suppress the statements made during his arrest, arguing that the

statements were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436. The

federal district court denied the motion, and a jury convicted defendant of drug offenses. He

appealed. Held: Affirmed. The "routine gathering of background biographical information,

such as identity, age, and address, usually does not constitute interrogation." (United States v.

Washington (9th Cir. 2006) 462 F.3d 1124, 1132.) The booking exception can apply to

questioning even after a defendant has invoked his right to counsel. The determinative issue

is whether the officer "should have known that his questions were reasonably likely to elicit

an incriminating response." (United States v. Poole (1986) 794 F.2d 462, 466.) In this case,

both the questions themselves and the context in which they were asked support the

determination that they were not reasonably likely to elicit an incriminating response. The

biographical questions had no relation to defendant's crimes and there was no evidence that

the agents played upon any of defendant's weaknesses or used the questions as a pretext to

elicit information.



16

During the weeks of July 10, 2017, and July 17, 2017, the California Supreme Court

granted review in the following cases:

Prop. 57 – Retroactivity of Direct Filing Provisions

Are the provisions of Proposition 57 that eliminated the direct filing of certain juvenile cases

in adult court applicable to cases not yet final on appeal? (People v. Mendoza (2017) 10

Cal.App.5th 327, review granted 7/12/2017 (S241647/H039705).) In People v. Vela (2017)

11 Cal.App.5th 68, review granted 7/12/2017 (S242298/G052282), the court deferred

briefing pending decision in People v. Mendoza.

Grant and Hold

In re Priscilla A. (2017) 11 Cal.App.5th 551, review granted 7/12/2017

(S241995/B276745). Briefing deferred pending decision in In re R.T. (2015) 235

Cal.App.4th 795, review granted 6/17/2015 (S226416/B256411), which presents the

following issue: Does Welfare and Institutions Code section 300, subdivision (b)(1),

authorize dependency jurisdiction without a finding that parental fault or neglect is

responsible for the failure or inability to supervise or protect the child?

For a list of cases with unpublished decisions where review has been granting with briefing

deferred, see the California Supreme Court's Summary of Cases Accepted and Related

Actions During Week of July 10, 2017: http://www.courts.ca.gov/documents/ws071017.pdf.

For a list of cases with unpublished decisions where review has been granting with briefing

deferred, see the California Supreme Court's Summary of Cases Accepted and Related

Actions During Week of July 17, 2017: http://www.courts.ca.gov/documents/ws071717.pdf.

Documents

Weekly Case Summaries€¦ · People v. Elizalde (2015) 61 Cal.4th 523, the Supreme Court held that use of a defendant's un- Mirandized responses to gang-affiliation questions, posed