Criminal Appeal

Confession Voluntary; Expert Testimony on Interrogation Properly Excluded; Intent Evidence Sufficient; Remanded for Resentencing. People v. Ramos, no. B166003 (Cal.Ct.App. (2d Dist., Div. 3) Aug. 27, 2004).

1. Confession Voluntary. The court found the defendant's confession was not the product of an improper promise of leniency. Trial court properly credited officer's version of interrogation in which officer told defendant his cooperation would benefit him in the judicial process and that he would present the fact of the defendant's cooperation to the district attorney for consideration. The court of appeal found that it was proper for the trial court to reject the defense version (which was supported by a police report) that included only the promise of leniency, without any mention of the district attorney's role.

2. No error in exclusion of expert testimony on police interrogation:

[the officer] did not misrepresent the state of the evidence to Ramos, did not subject him to a polygraph examination and did not question him repeatedly over an extended period of time. Thus, as the trial court concluded, the defense failed to demonstrate the need for [Dr.] Leo’s expert testimony. Moreover, the trial court expressly indicated its ruling was tentative and that it would revisit the issue if the evidence adduced at trial suggested Leo’s expert testimony was relevant. Because the jury could understand and evaluate all the evidence presented at Ramos’s trial without the assistance of an expert on police interrogation, we find no abuse of discretion in the trial court’s order excluding Leo’s testimony.

3. Evidence of Intent to Kill Sufficient. Intent to kill element of attempted murder satisfied by evidence that appellant was a gang member, came to party armed with other armed gang members, parked around the corner from the party, ran to front yard when he heard fellow gang member had been in a fight, pulled his gun, aimed it car full of rival gang members, and fired. In finding the evidence sufficient, the court also relied upon expert gang testimony.

4. Minimum Parole Eligibility Term. On Count 1, court imposed life with possibility of parole for attempted murder, plus 10 years and 15 years, respectively, for gun and gang enhancements. This was error, as sentenced should have been a life term with a minimum term of 15 years prior to parole eligibility: "the criminal street gang enhancement found at section 186.22, subdivision (b)(5), requires service of a 15-year term before parole eligibility, not a 15- year enhancement."

5. Consecutive Indeterminate Term Served In Full. On second count of attempted premeditated murder, court imposed life term and enhancements of 1/3 of the 10-year gun enhancement and 1/3 of the 15-year gang enhancement. This was error: "section 1170.1, subdivision (a), which directs that a consecutive subordinate term shall consist of one-third the middle term or one-third of the term imposed for an enhancement, does not apply to indeterminate sentences."

Special Cir. & Death Sentence Reversed; Failure to Instruct on Intent to Kill for Felony-Murder Sepcial Circumstance. (Offense Committed in "Carlos/Anderson Window Period.'") People v. Haley, no. S007531 (Cal.Supreme Court, Aug. 26, 2004).

In Carlos v. Superior Court (1983) 35 Cal.3d 131 (Carlos), we held that even when the defendant is the actual killer, intent to kill is an element of the felony-murder special circumstance. While this aspect of Carlos was overruled in People v. Anderson (1987) 43 Cal.3d 1104 (Anderson), we subsequently held that “[c]ases involving the felony-murder special circumstance committed after Carlos but before Anderson . . . must apply the intent-to-kill requirement.” (People v. Wharton (1991) 53 Cal.3d 522, 586, fn. 16.) The murder in the present case occurred in the Carlos/Anderson “window period.” Because the trial court’s failure to instruct the jury on the intent-to-kill requirement was not harmless beyond a reasonable doubt, we affirm the conviction for first degree felony murder and the underlying felonies, but reverse the special circumstance findings and resulting death sentence.

Justice Moreno authored this unanimous opinion.

Mistake of Fact re: Age May be Defense Against Providing Alcohol to Minor Charge. In re Jennings, no. S115009 (Cal. Supreme Court, Aug. 23, 2004).

In prosecution for purchase of alcoholic beverage for someone under 21 years old who, after drinking, proximately causes death or great bodily injury (Cal. B & Prof. Code section 25658(c)), proseuction need not prove knowledge of age, but defendant can defend against the charge by claiming a mistake of fact as to age:

(1) Section 25658(c) is not limited to the shoulder tap scenario, but applies whenever an offender purchases alcoholic beverages for an underage person; (2) section 25658(c) does not apply in the typical social party host situation, because the host does not purchase alcohol for any particular guest; (3) the prosecution need not prove an offender knew (or should have known) the age of the person to whom he or she furnished alcohol in order to prove a violation of section 25658(a); (4) the prosecution need not prove an offender knew (or should have known) the age of the person for whom he or she purchased alcohol in order to prove a violation of section 25658(c); and (5) a person charged with violating section 25658(c) may defend against the charge by claiming an honest and reasonable belief that the person for whom he or she purchased alcohol was 21 years of age or older. The defendant bears the burden of proof for this affirmative defense.

This unanimous opinion was authored by Justice Werdeger.

Crimes Against Buses.

Section 219.2 of the California Penal Code does not require the intent to strike or wreck a bus. In re Wasif M. (Cal.Ct.App. (2d Dist., Div. 5) June 4, 2004). (Section 219.2 punishes a person who "willfully throws, hurls, or projects a stone or other hard substance, or shoots a missile, at a train, locomotive, railway car, caboose, cable railway car, street railway car, or bus or at a steam vessel or watercraft used for carrying passengers or freight ....")

9th Cir. Opn.: Knowledge Element of Drug Trafficking; Statement of Reason for Sentence at High End of Guideline Range

In U.S. v. Delgado, no. No. 02-30363, the Ninth Circuit held today that in a prosecution for possession of a controlled substance with the intent to distribute, "the Government had to prove that Delgado knew he possessed some prohibited substance, he did not necessarily need to know that such possession constituted a violation of the law." And, in connection with a charge of aiding and abetting such possession with intent to distribute, "although Delgado needed to know that he was assisting Vasquez-Santiago to commit the crime of possession with intent to distribute methamphetamine, he did not need to know that such act of assisting constituted a crime." The Court also rejected the appellant's arguments that the evidence was insufficient and that the district court abused its discretion in allowing the jury to use transcripts of phone calls.

Finally, the Court did find error requiring a remand for resentencing in that the district court failed to state defendant-specific reasons for imposition of a sentence at the high end of a guideline range which exceeded 24 months. 18 U.S.C. 3553(c).

Judge Melvin Brunetti authored the opinion.