Criminal Appeal

No Instructional Error In Nail Gun Murder Trial. People v. Pescador, no. C042759 (Cal.Ct.App. 3d dist. June 8, 2004).
"Suspecting his wife, Norma Pescador, of infidelity, defendant Manolito Pescador fired 10 nails into her head with a nail gun, killing her" and there were no errors in his jury instructions.

(1) No error in instructing pursuant to CALJIC 8.71 and 8.72, which create presumptions for convictions for lesser homicide offenses when there jurors have a reasonable doubt as to the degree of the offense. Jury would not read instructions as requiring that they unanimously find that they cannot agree on the degree: (2) No error in instructing pursuant to CALJIC 2.50.02, which permits jury to rely on prior acts of domestic violence to find that he had a propensity to commit the current offense.

Cal.Ct.App.: Mandatory Presumption Requires Murder Reversal

In a 2-1 decision, the California Court of Appeal (2d Dist., Div. 7) reversed a second degree murder conviction for instructional error. The instruction informing the jury that "[a] violation of the basic speed law is the commission of an act inherently dangerous to human life and safety," constituted an impermissible mandatory presumption: "the trial court told the jury, in essence, the second element of implied malice requires proof of an act whose natural consequences are dangerous to human life and proof of a violation of the basic speed law is proof of such an act." Applying the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24, the Court found the error prejudicial. Justice Dennis M. Perluss dissented, agreeing there was error, but finding it harmless.
The Court of Appeal rejected the appellant's evidentiary claim, finding that the trial court did not abuse its Evid. Code sec. 352 discretion in granting the prosecutor's motion in limine to preclude the defense from questioning its own accident reconstruction expert about whether in forming his opinion that the defendant was going between 10-20 mph that he considered the report the defense's first, but now deceased, expert.

Justice Earl Johnson, Jr. wrote the majority opinion in People v. Vanegas, no. B165475 (Cal.Ct.App. - 2d Dist., Div. 7).

No Mandatory Presumption in H&S 11383(f) (People v. McCall)

On Thursday (1/15), in People v. McCall, no. S113433, the California Supreme Court issued a unanimous opinion authored by Justice Moreno, holding that Health and Safety Code section 11383(f), did not create a mandatory presumption: "We hold that the language in question creates no presumption at all, but is simply a valid exercise of the Legislature’s power to create substantive law and define crimes." Former, section 11383(f) stated that “possession of immediate precursors sufficient for the manufacture of . . . hydriodic acid . . . shall be deemed to be possession of the derivative substance. Additionally, possession of essential chemicals sufficient to manufacture hydriodic acid, with intent to manufacture methamphetamine, shall be deemed to be possession of hydriodic acid.” As noted in footnote 17 of the opinion, section 11383 was amended on Sept. 30, 2003, to eliminate the presumption and to create new crimes which penalize the possession of precursors with the intent to manufacture methamphetamine. So this opinion may not have much relevance to future 11383(f) prosecutions.