Criminal Appeal

Introduction Of Deceased Victim's Hearsay Statement Merits Reversal Of Manslaughter Conviction

California Evidence Code section 1370 creates an exception to the hearsay rule that permits the introduction of an unavailable witness' statement to a medical professional "made at or near the time of the infliction or threat of physical injury."

In this case, appellant was charged with second degree murder and spousal abuse. The prosecution's theory was that the victim died approximately nine months after the defendant twisted her neck. The victim had started seeing doctors within a week after her purported injury but specifically denied that she had suffered any trauma to her neck until almost two months after the incident in question. It was not until almost two months later that she told a doctor that the defendant had twisted her neck nearly two months earlier.

Pre-trial, the defense moved to exclude evidence of her statement to the doctor regarding the alleged neck-twisting as hearsay and violative of her Sixth Amendment confrontation rights under Crawford. The trial court admitted the statement under Evidence Code section 1370. The defendant was later convicted of voluntary manslaughter and spousal abuse.

A divided panel of Division One of the Fourth District Court of Appeal reversed the convictions. The two-justice majority concluded that "absent special circumstances, a statement about a physical injury made almost two months after its infliction does not satisfy the statutory time limit" found in Evidence Code section 1370 that the statement be made "at or near" the time of the event. The majority deemed the erroneous admission of this hearsay statement to be prejudicial because the victim may have had an incentive to fabricate the statement at issue. Because the majority decided the issue on hearsay grounds, it declined to address the constitutional Confrontation Clause issues.

In a concurring opinion, Justice Judith L. Haller disagreed with the majority's conclusion that the requirements of Evidence Code section 1370 were not met but agreed that reversal was required, finding the admission of the victim's statement to be in violation of the defendant's confrontation rights under Crawford.

Justice Haller eschewed the more rigid "at or near" test adopted by the majority and suggested that "the Legislature intended to provide a trial court discretion to admit a statement if it was made when the incident was fresh in the victim's mind and not so long after the incident to put into question the statement's trustworthiness and reliability." In her view, this test was satisfied on the facts of this case.

Nevertheless, noting that the Attorney General conceded the statement in question was "testimonial," Jutsice Haller, without any analysis, opined that admission of the statement violated the defendant's confrontation rights, thus meriting reversal.

The majority opinion was authored by Justice James A. McIntyre.

People v. Quitiquit, no. D050385 (Cal.Ct.App. (4th Dist., Div. 1) filed 9/12/07)

The People's petition for review and request for depublication in the California Supreme Court are pending as of today.

Did Prop 83 Eliminate The SVP Extended Commitment Scheme?

In November 2006, the voters enacted Prop 83, which substantially amended the state's sexually violent predator (SVP) civil commitment law, which had also recently been amended by the Legislature in September 2006. Under the old law, commitments were two years in duration. At the conclusion of the two-year commitment, the government had to prove once again beyond a reasonable doubt that the person met the commitment criteria. Upon such a showing, the person was then committed for another two-year period subject to the same recommitment scheme every two years. Prop 83, however, eliminated this recommitment scheme and replaced it with a framework whereby the initial commitment would be for an indeterminate period of time, thus obviating the need for recommitment trials. Instead, in order for an SVP to gain release after Prop 83, the burden is now on the SVP to request a hearing and prove by a preponderance of the evidence that he or she no longer meets the commitment criteria.

In a strange oversight, however, Prop 83 completely eliminated the code section governing extended commitments. As a result, for those people committed as SVPs prior to the passage of Prop 83, there no longer exists an explicit statutory mechanism to extend their commitments. Nevertheless, district attorneys have continued to bring recommitment petitions alleging that post-Prop 83 extensions should be for indeterminate terms. The SVPs facing these extended commitment petitions have, in turn, brought a bevy of dismissal motions, arguing that the framework's omission of a recommitment scheme post-Prop 83 requires their release. Not surprisingly, two Courts of Appeal have recently decided the electorate did not intend for all SVPs committed prior to the adoption of Prop 83 to be released.

In Bourquez v. Superior Court (C055402), the Third District Court of Appeal held that "[b]y changing the terms of commitment under the SVPA from two-year terms to indefinite terms, the Legislature and then the voters demonstrated an intent to keep those found to be sexually violent predators (SVPs) committed until they no longer meet the definition of an SVP. From the very purpose of the amendment of the SVPA, a saving clause is implied. Under the implied saving clause, the superior court has jurisdiction to proceed on the petitions to extend petitioners' commitments. Under the provisions of the SVPA, as amended by SB 1128 and by Proposition 83, the petitions to extend commitment are petitions for indefinite commitment."

Similarly, in People v. Shields (D050034), Division One of the Fourth District Court of Appeal rejected the SVP's assertion that "the court had no jurisdiction to find him to be an SVP and recommit him because [Welfare and Institution Code] section 6604' s two-year commitment procedure has been eliminated and the amended SVP statute fails to expressly refer to persons already confined for two-year terms under former section 6604. We reject this contention because Shields's proposed statutory interpretation is contrary to the clear legislative intent."

A petition for review was filed in the California Supreme Court on October 31, 2007 in Shields and is currently pending.

Cal. Supreme Court Vacates Death Sentence On Faretta Grounds

In between the guilt and penalty phases of a capital murder trial, the defendant brought a Faretta motion to represent himself at the penalty phase. Although the trial court had found the defendant competent to stand trial, it denied appellant's Faretta motion based on a finding of mental incapacity to represent himself. The United States Supreme Court, however, has held that the test for competency to stand trial is the same as the test for competency to represent oneself. Thus, if the defendant was competent to stand trial, as the court found him to be, then he was also competent to represent himself, irrespective of any perceived mental deficiencies. Therefore, although the Court affirmed the jury's guilt finding, it reversed the death sentence. Justice Werdegar wrote the majority opinion, which was joined by every justice except Justice Kennard, who filed a concurring and dissenting opinion.

In Justice Kennard's separate opinion, she disagreed with the portion of the majority's opinion affirming the jury's guilt finding as to the two murder counts. Justice Kennard was troubled by the fact that over defense objection, the trial court permitted the prosecutor on cross-examination to ask the defense expert witness, a forensic psychiatrist, whether he had advised defendant’s attorney “that there just was insufficient evidence to present a psychiatric defense.” The expert had in fact expressed that opinion and still held it at the time of his testimony. He testified that he did not think “there was sufficient evidence to support what we call a diminished intent defense . . . to knock it down from murder one to murder two . . .” and “that there was insufficient evidence to even raise a reasonable doubt.”

As even the majority acknowledged, that testimony was inadmissible under Penal Code section 29, which provides: “In the guilt phase of a criminal action, any expert testifying about a defendant’s mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.”

While the majority concluded that the erroneous admission of this testimony was non-prejudicial, Justice Kennard noted that the only reasonable interpretation of this testimony was that, in the expert's opinion, the defendant had the mental state necessary for first degree murder during the acts in question. Moreover, she believed there was a reasonable probability that the trial court’s error led the jury to discredit the defense expert's earlier testimony on direct examination describing the defendant’s serious mental illness and its symptoms. In Justice Kennard's opinion, without this error, there was a reasonable probability that the jury would have entertained a reasonable doubt that the defendant acted with premeditation and deliberation during the killings.

People v Halvorsen, no. S008112 (Cal. Supreme Ct., filed 8/30/07)

Possession Of Cocaine Base For Sale Not Necessarily Lesser Included Offense Of Selling Cocaine Base

The defendant in this case was convicted for both selling cocaine base in one count and possessing that same rock for sale in a second count. A panel of the Third District Court of Appeal held that the possession for sale count was not a lesser included offense of the selling count and therefore concluded that the defendant could be convicted of both offenses. (The sentence on the possession for sale count, though, was properly stayed under Penal Code section 654 ,which bars multiple punishment for one indivisible course of conduct.)

As a threshold matter, the Court of Appeal stated that courts should not consider the evidence actually adduced at trial in determining whether one offense is necessarily included within another. According to the Court of Appeal, neither the statutory elements test nor the accusatory pleading test aided the defendant's claim that the possession for sale count was necessarily included in the selling count. Under the statutory elements test, a conviction for the greater offense of selling the cocaine does not require, as one of its statutory elements, the lesser offense of possessing the cocaine for sale, because possession is not an essential element of the sale offense. As an example, the Court of Appeal noted that "one can broker a sale of a controlled substance that is within the exclusive possession of another." Regarding the accusatory pleading test, the Court of Appeal, with little analysis, observed, "the information here simply charged defendant, as relevant, with selling cocaine base (count one) and with possessing cocaine base for sale (count two). Nothing more was alleged."

The defendant's petition for review was recently denied by the California Supreme Court, although Justice Moreno was of the opinion that it should have been granted.

The unanimous opinion was authored by Justice Rod Davis.

People v. Murphy, no. C046923 (Cal.Ct.App. (3rd Dist.) filed 8/29/07)

Are Juvenile Adjudications Prior Convictions Under Apprendi and Blakely? Take 2.

On June 29, 2007, in People v. Nguyen (H028798), a two-justice majority of a panel from the Sixth District Court of Appeal concluded that "the use of a juvenile adjudication to enhance the defendant’s sentence beyond the ordinary, statutorily-mandated maximum sentence, pursuant to the Three Strikes law violates the defendant’s Apprendi rights, whether he was adjudicated a juvenile offender after a contested hearing or pursuant to an admission."

On August 27, 2007, a unanimous panel from Division Four of the First District Court of Appeal issued a decision in People v. Tu (A105905), which, contrary to Nguyen, held that "since a juvenile court can constitutionally and reliably adjudicate a delinquency matter without affording the minor a jury trial, there is no constitutional impediment to the subsequent use of the juvenile adjudication for purposes of enhancing an adult offender’s sentence."

Given this conflict, not surprisingly, the California Supreme Court granted review of the decision in Nguyen on October 10, 2007. More to follow...

Cal. Supreme Court Splits On Admissibility Of "Eulogy" Video At Capital Sentencing Hearing

During the penalty phase of the defendant's capital trial, the court permitted the prosecution to show the jury a videotape prepared by the victim's mother portraying the victim's life. The trial court concluded, under Evidence Code section 352, that the videotape was more probative than prejudicial.

In Justice Chin's majority opinion, the California Supreme Court reiterated the principles recently discussed in People v. Prince (2007) 40 Cal.4th 1179, which permitted the use of videotapes regarding the victim so long as the prosecution does not introduce "irrelevant or inflammatory material that diverts the jury’s attention from its proper role or invites an irrational, purely subjective response." Prince provided the following guidance: "“[c]ourts must exercise great caution in permitting the prosecution to present victim-impact evidence in the form of a lengthy videotaped or filmed tribute to the victim. Particularly if the presentation lasts beyond a few moments, or emphasizes the childhood of an adult victim, or is accompanied by stirring music, the medium itself may assist in creating an emotional impact upon the jury that goes beyond what the jury might experience by viewing still photographs of the victim or listening to the victim’s bereaved parents. . . . In order to combat this strong possibility, courts must strictly analyze evidence of this type and, if such evidence is admitted, courts must monitor the jurors’ reactions to ensure that the proceedings do not become injected with a legally impermissible level of emotion.”

The majority described the video at issue in this case in the following manner: "It lasts about 20 minutes. It consists of a montage of still photographs and video clips of Sara Weir’s life, from her infancy until shortly before she was killed at the age of 19, narrated calmly and unemotionally by her mother. Throughout much of the video, the music of Enya — with most of the words unrecognizable — plays in the background; the music is generally soft, not stirring. One segment shows Sara singing a couple of songs with a school group, including 'You Light Up My Life.' Part of the time she was singing solo, with her mother explaining that every student was required to sing solo. The videotape concerns Sara’s life, not her death. It shows scenes of her swimming, horseback riding, at school and social functions, and spending time with her family and friends. The closest it comes to referring to her death is the mother’s saying near the end, without noticeable emotion, that she does not want to dwell on this 'terrible crime.' There is no mention of the facts of the murder or of defendant. The video ends with a brief view of Sara’s unassuming grave marker followed by a video clip of people riding horseback in Alberta, Canada, over which the mother says this was where Sara came from and was the 'kind of heaven' in which she belonged."

The majority acknowledged that the Enya music and the video clip of people riding horseback in Canada did not appear to be relevant. However, in light of Prince, the majority concluded that the defendant was not prejudiced by the admission of the video in question. Finding no prejudice, the majority explicitly declined to rule whether the trial court abused its discretion in permitting the prosecution to introduce the video.

Justice Werdegar filed a concurring opinion in which she opined that the trial court abused its discretion in admitting the videotape because it was "unduly lengthy, has elements of theatricality in the use of evocative music and visions of the victim’s place in the hereafter, and goes beyond a factual presentation of the victim as she was in life . . . ." Nevertheless, she agreed with the majority that the error was not prejudicial.

Justice Moreno filed a concurring and dissenting opinion in which he described the video as being "akin to a eulogy" and "precisely the kind of tape that we warned against admitting in Prince." Therefore, like Justice Werdegar, he would have found the trial court's ruling permitting introduction of the video to be an abuse of discretion. But, like all members of the Court, he, too, could not "say that this additional evidence so inflamed the passions and the sympathy of the jury that the penalty phase was rendered unfair."

People v Kelly, no. S049973 (Cal. Supreme Ct., filed 12/6/07)

Sealed Juvenile Records May Not Be Unsealed For Use In SVP Proceedings

The Board of Parole Hearings (BPH) petitioned the juvenile court to disclose an adult prisoner's juvenile records that had been sealed pursuant to Welfare and Institutions Code section 781 (Section 781). BPH intended to use the sealed records to evaluate whether the person met the sexually violent predator (SVP) civil commitment criteria. The juvenile court summarily granted BPH's petition without holding a hearing.

Because Section 781 provides a brief, exhaustive list of situations in which sealed juvenile records may be disclosed that does not encompass use for SVP proceedings, Division Three of the First District Court of Appeal reversed the order disclosing the prisoner's juvenile court records. The proper rule of statutory construction, the Court reasoned, "'is that the statement of limited exceptions excludes others, and therefore the judiciary has no power to add additional exceptions; the enumeration of specific exceptions precludes implying others.'”

Moreover, the Court of Appeal rejected the Attorney General's argument that recent amendments to the Sexually Violent Predator Act (SVPA) found in Prop 83 - adopted by the voters in November 2006 - necessarily created an implied exception to Section 781 allowing the use of sealed juvenile court records in SVP proceedings. While the voters obviously intended to make SVP commitments easier, the voters accomplished that express aim in very specific ways, such as: requiring fewer prior qualifying offenses, allowing the use of certain unsealed juvenile prior adjudications, and making more prior crimes qualifying offenses. Therefore, the Court of Appeal concluded that not construing Prop 83 in the manner proposed by the Attorney General would not render the initiative's amendments to the SVPA a nullity or frustrate voter intent.

Lastly, although the Court of Appeal declined to reach the prisoner's constitutional claims, it did recognize his right to due process and note that it was "questionable whether appellant had adequate notice and an opportunity to be heard," as the juvenile court granted the petition for disclosure a mere seven days after a copy of the petition was mailed to him while he was an incarcerated prisoner unrepresented by counsel.

The Court of Appeal therefore vacated the order disclosing the prisoner's juvenile court records, and directed the juvenile court to secure the return of all relevant documents.

The unanimous opinion was authored by Justice Peter J. Siggins.

In re James H., no. A116315 (Cal.Ct.App. (1st Dist., Div. 3) filed 8/31/07)

Hospitals Can Be Prisons Too

Pursuant to a California statute that provides for the transfer of mentally ill prisoners to state hospitals, the defendant in this case was transported from a state prison to Atascadero State Hospital. Shortly after his arrival at the hospital, he struck a nurse in the face. The defendant was subsequently convicted of violating California Penal Code (PC) section 4501.5, which makes it a felony for any person “confined in a state prison who commits a battery” upon a nonprisoner. The Court of Appeal reversed his conviction, finding that appellant was not "confined in a state prison" at the time of the battery because the incident occurred while he was at the hospital. The California Supreme Court reversed the Court of Appeal's decision and affirmed the conviction.

Writing for a unanimous Court, Chief Justice George concluded that a prison inmate transferred to a state hospital under this scheme meets the definition of a person “confined in a state prison” set forth in PC section 4504, which includes a person who, at the time of the offense, is “temporarily outside the walls or bounds of the prison.” The Court reached this conclusion even though a prisoner transferred to a state hospital in accordance with PC section 2684 is placed in the hospital for an indefinite period of time - “until in the opinion of the superintendent the person has been treated to the extent that he or she will not benefit from further care and treatment in the state hospital” - and may never return to prison.

In the Court's view, "[t]he circumstance that a prisoner transferred to Atascadero for mental health treatment pursuant to section 2684 may never return to prison in the event the prisoner never sufficiently recovers from his or her mental illness, is immaterial to the question of whether a transfer under that provision is 'temporary' within the meaning of section 4504, subdivision (b)." Rather, the Supreme Court relied upon the fact that such transfers are not necessarily permanent. Since the transfer statute expressly contemplates the possibility of a return to prison, the prisoner remains "confined in state prison" while at the hospital. In addition, the Court declared its result consistent with administrative regulations and public policy, in that its construction of the relevant statutes affords state mental health workers the same protection as state employees employed in correctional institutions who come into contact with prison inmates.

People v Watson, no. S131052 (Cal. Supreme Ct., filed 12/17/07)

California Trial Courts Have The Discretion To Strike Certain Deadly Weapons Enhancements

After a jury convicted the defendant in this case of robbery and assault charges and found true a special allegation that the defendant personally used a deadly or dangerous weapon in violation of California Penal Code (PC) section 12022(b)(1), the trial court imposed a prison term that included a one-year enhancement for the weapon use. The court also denied Jones’s request to stay or strike the deadly weapon enhancement, stating it lacked discretion to do so.

However, Division Seven of the Second District Court of Appeal concluded that imposition of the one-year enhancement was not mandatory and that trial courts retain the discretion to strike this enhancement in the furtherance of justice pursuant to PC section 1385(c). Therefore, the Court of Appeal remanded the matter in order for the trial court to exercise its discretion whether to impose or strike the enhancement.

In arriving at this result, the Court of Appeal first noted that the inherent authority of trial courts to strike enhancements should not be curtailed without clear proof of legislative attempt to do so. Against this backdrop, the Court rejected the Attorney General's contention that the Legislature's express affirmation of the authority to strike certain enhancements found in other subdivisions of PC section 12022 necessarily means trial courts are divested of this authority with respect to the subdivision at issue in this appeal. At the same time, the Court of Appeal found persuasive the fact that the Legislature has affirmatively stripped trial courts of the authority to strike certain enhancements but has never done so with respect to the deadly weapon enhancement found in PC section 12022(b)(1). In light of the absence of the “clear and unmistakable” intent required to restrict the authority of the trial court to consider, in its discretion, striking the one-year deadly weapon-use enhancement imposed under section 12022, subdivision (b)(1), the Court of Appeal ultimately determined that trial courts do have such authority.

The unanimous opinion was authored by Presiding Justice Dennis M. Perluss.

People v. Jones, no. B193759 (Cal.Ct.App. (2nd Dist., Div. 7) filed 12/17/07)

Petty Theft With A Prior Is A Lesser Included Offense Of Robbery

A jury convicted a criminal defendant of one count of second degree robbery in violation of California Penal Code (PC) section 211 and one count of petty theft with a prior theft-related conviction in violation of PC section 666. Both counts arose out of a single incident. The alleged victim of the robbery charge was a store employee, and the alleged victim of the petty theft count was the store itself.

Division Eight of the Second District Court of Appeal reversed the petty theft conviction because it was a lesser included offense of the robbery count. Robbery cannot be committed without necessarily committing petty theft. This is true even though the petty theft offense here included the added allegation of a prior conviction. According to the Court: "a defendant cannot be convicted both of robbery and petty theft with a prior, arising from the same incident, because the prior conviction is a sentencing factor, rather than an element, so petty theft with a prior is a lesser included offense of robbery." In reaching this result, the Court rejected the Attorney General's argument that both convictions may survive because different victims were alleged in the two counts. The store employee was the agent of his employer, so, legally, the crimes had the same victim even though the information alleged the employee and the store as two separate victims.

The unanimous opinion was authored by Justice Madeleine Flier.

People v. Villa, no. B195363 (Cal.Ct.App. (2nd Dist., Div. 8) filed 12/17/07)