Criminal Appeal

Denial of Motion to Withdraw Faretta Waiver Structural Error

In a serious drug prosecution, the defendant asserted his Sixth Amendment right to represent himself pursuant to Faretta v. California (1975) 422 U.S. 806. During jury selection he changed his mind and asked the trial court to appoint counsel on his behalf. The trial court denied that request as well as a second one.

Although criminal defendants do not have an absolute right to withdraw Faretta waivers and reassert the right to counsel, under the circumstances of this case, Division Seven of the Second District Court of Appeal concluded that the trial court abused its discretion in denying the defendant's requests for counsel on the first day of trial.

The trial court denied the defendant's second request to withdraw his Faretta waiver because it found that the jury had already been selected and sworn, the delay would be disruptive to the codefendant, and the defendant's prior attorney was still engaged in trial and unavailable. The Court of Appeal deemed these reasons insufficient because there was "no indication in this record [the defendant] was attempting to manipulate the right to counsel for any improper purpose. [The defendant's] stated reason for requesting counsel was legitimate: He realized immediately after the proceedings commenced he was incapable of understanding the proceedings and conducting a defense."

Upon finding an abuse of discretion, the Court of Appeal went on to hold that "[b]ecause deprivation of counsel at a critical stage of a criminal trial is federal constitutional error that affects the framework within which the trial proceeds, 'with consequences that are necessarily unquantifiable and indeterminate,' the error is structural and reversal is required without analysis of prejudicial effect." In applying the federal structural error standard found in Sullivan v. Louisiana (1993) 508 U.S. 275, 282, the Court of Appeal rejected the approach adopted by several other California Courts of Appeal that have analyzed the error under the harmless error standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836 for state law errors.

According to the Court of Appeal, "while a violation of the right to the effective assistance of counsel, derived from the Sixth Amendment’s purpose of ensuring a fair trial, generally requires a defendant to establish prejudice, the right to select counsel of one’s choice . . . has been regarded as 'the root meaning of the constitutional guarantee': 'Deprivation of the right is "complete" when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received.'” Therefore, the denial of the defendant's request to withdraw his Faretta waiver was structural error.

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

People v. Lawrence, no. B193831 (Cal.Ct.App. (2nd Dist., Div. Seven) filed 1/2/2008)

At NGI Extended Commitment Trials Jurors Must Be Instructed On The Issue Of Whether The Person Has Serious Difficulty Controlling Dangerous Behavior

In In re Howard N. (2005) 35 Cal.4th 117, the California Supreme Court held that in order to comport with federal due process principles the extended commitment scheme for minor wards (Welf. & Inst. Code, § 1800, et seq.) must be construed to require proof that the person under commitment has serious difficulty controlling dangerous behavior. Since Howard N. was decided, a number of Courts of Appeal have addressed whether this “control” element applies to not guilty by reason of insanity (NGI) extended commitment proceedings as well.

The First, Third, and Fifth Districts have all concluded that due process compels such a finding at NGI extended commitment proceedings. (People v. Zapisek (2007) 144 Cal.App.4th 1151 [First District]; People v. Galindo (2006) 142 Cal.App.4th 531 [Third District]; People v. Bowers (2006) 145 Cal.App.4th 870 [Fifth District].)

Because all three of these cases involved court trials, none of them offered the occasion to determine whether a corresponding instructional duty in a jury trial existed as well. Division Two of the First District Court of Appeal, however, recently addressed the question of whether instruction on this element is required in a jury trial. In People v. Sudar (A115464), the Court of Appeal held that “the trial court erred in failing to instruct the jury pursuant to Howard N.” that it had to find the insanity acquittee had “‘at the very least, serious difficulty controlling his potentially dangerous behavior.’” The Court of Appeal also concluded that failure to instruct on the “control” element is subject to the Chapman harmless error standard of review applicable to federal constitutional trial errors. Pursuant to that standard, the Court of Appeal found the instructional error in this case non-prejudicial and affirmed the insanity acquittee's extended commitment.

The unanimous opinion was authored by Presiding Justice J. Anthony Kline.

People v. Sudar, no. A115164 (Cal.Ct.App. (1st Dist., Div. Two) filed 12/18/07, ordered published 1/2/2008)

Words May Constitute Sufficient Provocation To Reduce Murder To Manslaughter

In a murder prosecution, the trial court instructed the jury pursuant to CALCRIM no. 917 that mere words cannot establish a defense to battery. In addition, the court allowed the prosecutor to argue to the jury that words cannot legally constitute provocation to reduce a homicide to manslaughter.

While it is a correct statement of the law that words cannot establish a defense to battery, words of abuse, insult or reproach may incite the heat of passion specified in the Penal Code section 192 definition of manslaughter, and therefore may constitute sufficient provocation to reduce the offense of intentional homicide from murder to manslaughter.

In light of these principles, the Sixth District Court of Appeal reversed the defendant's second degree murder conviction, concluding that the combination of the instruction given and the prosecutor's argument to the jury improperly "removed consideration of appellant's confrontation with his wife, and her insulting response, from the jury's evaluation of provocation and its impact on appellant's state of mind." Because consideration of these highly relevant factors may have prevented the jury from convicting the defendant only of voluntary manslaughter, the Court of Appeal deemed the errors prejudicial.

The unanimous opinion was authored by Justice Franklin D. Elia.

People v. Le, no. H030808 (Cal.Ct.App. (6th Dist.) filed 12/27/07)

SVP Recommitments and Indeterminate Terms, Take 2

As noted in a previous post, two California appellate courts recently concluded that individuals subject to two-year sexually violent predator (SVP) civil commitments at the time the electorate passed Prop 83 can face the prospect of indeterminate terms upon expiration of their current commitments. In People v. Carroll (F051709), the Fifth District Court of Appeal has reached the same result, noting that to hold otherwise would lead to "absurd consequences." In addition, California Supreme Court recently denied review on this question in People v. Shields.

In Carroll, the Fifth Disrtict Court of Appeal also fended off a few related challenges. The district attorney in that case filed an extended commitment petition before the SVP Act was amended to provide for indeterminate terms. Therefore, the commitment petition sought to impose a two-year commitment. By the time the commitment trial commenced several months later trial, the SVP Act had been amended to provide for indeterminate terms. At that time, the district attorney announced that an indeterminate term would be sought rather than the two-year term identified in the petition. After a court trial, the defendant was committed as an SVP for an indeterminate term. The Fifth District Court of Appeal concluded that the defendant waived any objection to the amendment of the petition by failing to object.

The Court of Appeal did, however, reject two of the defendant's challenges to the petition on the merits. First, the Court of Appeal dispensed with the defendant's due process challenge to the adequacy of the notice he was given on the merits, noting that the "allegations against which Carroll needed to be prepared to defend – most importantly, that he continued to have a current diagnosable mental disorder, by reason of which he was likely to engage in sexually violent criminal behavior in the future – were unaffected by the amendment."

In addition, the Court of Appeal held that because the petition was amended and the trial occurred after the indeterminate term provisions took effect utilization of the newly-added indeterminate term provisions of the SVP Act did not constitute an impermissible retroactive application of the statute.

The unanimous opinion was authored by Presiding Justice James A. Ardaiz.

People v. Carroll, no. F051709 (Cal.Ct.App. (5th Dist.) filed 12/27/07)

Traffic Stops and Temporary Operating Permits

A police officer initiated a traffic stop because the vehicle he observed had expired registration tags on its license plates. The officer subsequently discovered drugs in the vehicle and arrested the driver. The driver then brought a Fourth Amendment suppression motion. At the ensuing suppression hearing, the officer testified that he would have stopped the vehicle regardless of whether he saw a temporary operating permit displayed on the vehicle. The defense offered testimonial and documentary evidence that a temporary operating permit was in fact displayed. The trial court denied the suppression motion, noting that it did not find the defendant's testimony regarding the temporary operating permit credible.

Division Two of the First District Court of Appeal reversed the denial of the defendant's suppression motion. In so ruling, the Court of Appeal held that under these circumstances the officer had an obligation to at least look for a valid temporary operating permit as he followed the vehicle in question. Without doing so, the officer could not have formed a reasonable suspicion that the vehicle was not properly registered.

The Court of Appeal, however, was quick to limit the scope of its holding. It did not hold that officers who observe expired registration tabs have an affirmative duty to look for an operating permit prior to conducting a traffic stop. Thus, it appears the Court of Appeal was particularly troubled that the officer in this case would have stopped the vehicle regardless of whether he saw a temporary operating permit displayed on the vehicle. In addition, the Court of Appeal rejected the defendant's appellate contention that, as a matter of law, an officer who stops a vehicle with expired registration must check for the temporary operating permit as soon as the stop is affected, and release the vehicle as soon as he determines that a temporary operating permit is in place.

The unanimous opinion was authored by Presiding Justice J. Anthony Kline.

People v. Dean, no. A115164 (Cal.Ct.App. (1st Dist., Div. Two) filed 12/21/07)

California appellate courts have wrestled with a number of different fact patterns involving traffic stops and temporary operating permits of late. However, the question of whether an officer may stop a vehicle that has an expired registration tab but also displays a temporary operating permit remains an open one. The California Supreme Court has granted review in two somewhat similar cases though. In People v. Hernandez (S150038) and In re Raymond C. (S149728), the Supreme Court will address the following issue: "If a police officer sees that a motor vehicle lacks a rear or both license plates, may the officer make a traffic stop to determine if the vehicle has a temporary permit or if a displayed temporary permit is a valid one?"

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...