CaseBank: Cases Added - March 2015 (sorted by Court) www.casebanklaw.com MOTIONS MISC - MOTIONS CONSTITUTIONAL ISSUES DISMISSAL OF MISD FOR LACK OF PC - 991 PC L.A. APPELLATE DIVISION: PC 991 only gives court authority to dismiss an ENTIRE MISD CASE for lack of PC. This case: PC existed for some counts, but not others. HELD: it is all or nothing. Nothing should be dismissed per PC 991. McGOWAN P. v. () 3/27/2015 SUPP INSTRUCTIONS/ELEMENT 290 PC S SEX REGIS - 290 PC - QUALIFYING FACTS - JURY TRIAL RIGHT APPRENDI does not apply to findings necessary to order a def to REGISTER under PC 290 since PC 290 is NOT PUNISHMENT even with the JESSICA's Law residency restrictions. MOSLEY P. v. () 3/2/2015 CAL INSTRUCTIONS/ELEMENT 290 PC SSEX REGIS - 290 PC - RESIDENCY RESTRICTIONS - PAROLE AUTHORITY Notwithstanding UNCONSTITUTIONALITY of Jessica's Law blanket residency restrictions, PAROLE officers retain authority to impose case-by-case residency restrictions on sex offenders. TAYLOR In Re () 3/2/2015 CAL JUVENILE MISC - JUVENILE RECORDS - SEALING OF - 781 W&I Notwithstanding petitioner's exemplary post-juvi-conviction record, W&I 781(a) has NO EXCEPTIONS to its rule that Juvi Court may NOT order the SEALING of any case involving a conviction of a W7I 707(b) offense. (even if reduced to misd) --- DCA invites legislature to amend 781(a). G. Y. In Re () 2/3/2015 6: MISCELLANEOUS ATTY ETHICS DDA MISCONDUCT - FALSIFYING EVID - DISMISSAL PROPER REMEDY During plea negotiations, DDA inserts incriminating extra lines into English transcript of def's Spanish interview with police before giving transcript to def atty. Misconduct caught before any plea. Trial court finds this to be OUTRAGEOUS conduct and dismisses case. UPHELD. VELASCOP. v. () 2/24/2015 5: PALACIOS SENTENCING MISC - SENTENCING CRUEL AND UNUSUAL - MINORS - LWOP (DEFACTO) - EFFECT OF 3051 Minor's 120-to-LIFE sentence was given pre-MILLER. At postMILLER re-sentencing, trial judge says re-sentencing is NOT necessary because new PC 3051 gives minor meaningful opportunity for get paroled within expected lifetime. AFFIRMED. SCOTT P. v. () 3/20/2015 4:2 RIGHT TO JURY TRIAL SENTENCING FACTORS - PC 290 FACTORS APPRENDI does not apply to things the RIGHT-TO-JURY did not apply to in 1791. Therefore does NOT apply to findings necessary to order a def to REGISTER under PC 290 since sex offender registration didn't exist in 1791. MOSLEY P. v. () 3/2/2015 CAL INSTRUCTIONS/ELEMENT 290 PC S SEX REGIS - 290 PC - RESIDENCY RESTRICTIONS - JESSICA'S "As applied" in San Diego County, JESSICA's Law residency restrictions for PC 290 parolees are UNCONSTITUTIONAL since they, as a practical matter, force 290 parolees to become homeless which is COUNTER-PRODUCTIVE to the rationale of 290. Therefore they restrict liberty for NO GOOD REASON. TAYLOR In Re () 3/2/2015 CAL APPELLATE ISSUES MISC APPELLATE ISSUES APPEALABLE ORDERS - COMPASSIONATE RELEASE, REQUEST FOR Provided that the COMPASSIONATE EARLY RELEASE request is INITIATED by the Prison/Parole authorities as required by PC 1170(e), then a trial court denial of such a request can be APPEALED by the inmate. LOPER P. v. () 3/5/2015 CAL INSTRUCTIONS/ELEMENT 290 PC S SEX REGIS - 290 PC - EQUAL PROTECTION - MINORS Minors convicted of PC 647.6 who go to CYA/DJJ for that crime must register under PC 290. Other minors do not. HELD: this DOES NOT violate equal protection. Sentencing judge makes individualized determination that minor's 647.6 conviction warrants CYA (and therefore registration). RUELAS def v. SUP 3/20/2015 6: CT SENTENCING STRIKE CASES PROP 36 - APPLICABILITY TO ALL DEF's - REGARDLESS OF DANGEROUSNESS Notwithstanding a court finding that he was too dangerous to resentence under Prop 36 - 3 Strikes, def asserts he is entitled to benefit of Prop 36 because (1) it must be retroactive; (2) equal protection; (3) failure to re-sentence makes his sentencing "cruel and unusual". HELD: def loses. SMITH P. v. () 3/10/2015 4:3 INSTRUCTIONS/ELEMENT MISC - FELONY S GANG MEMBERSHIP - 186.22(a) PC - X and Y ARE NOT OF SAME GANG X and Y are members of two SEPARATE gangs. The gangs are not rivals, but they are also NOT subsets of the same gang. X and Y commit felony together. HELD: this does NOT constitute a violation of PC 186.22(a) - even if the crime benefited one or both gangs. VELASCO P. v. () 3/13/2015 4:1 CaseBank: Cases Added - March 2015 (sorted by Court) www.casebanklaw.com INSTRUCTIONS/ELEMENT DEFENSES GENERALLY S CLAIM OF RIGHT - ACTING ON OTHER PEOPLE'S CLAIM OF RIGHT X tells DEF that victim stole her EBT card. DEF unilaterally decides to get it back and does so by using force on victim. HELD: DEF is NOT entitled to claim-of-right instructions on his ROBBERY charge. ANDERSON P. v. () 3/12/2015 SENTENCING 4:1 MISC - SENTENCING X and Y aid/abet Z in a Robbery. Z shoots and kills victim. X and Y convicted of felony murder. X and Y are 17 years old and are sentenced to 25-to-LIFE. HELD: this is NOT defacto LWOP. 25to-life sentences are NOT cruel and unusual. JORDAN P. v. () 3/16/2015 4:1 WHEELER REMEDY - MONEY SANCTION UNDER CCP 177.5, THREAT OF Trial court GRANTS DDA's WHEELER motion against def atty, but REMEDY is ordering def atty to STOP under threat of monetary sanctions if he continues. HELD: Even if ERROR, def CANNOT show Prejudice. He can't identify any BIASED juror who was wrongfully allowed to stay on case. SINGH P. v. () 3/6/2015 3: INSTRUCTIONS/ELEMENT MISC - FELONY S PEEPING TOM PHOTOS - UP-SKIRTS - 647(j)(2) PC PC 647(j)(2) prohibits photographing an "identifiable person" in such a way as to a show their private parts or underwear w/out their knowledge. HELD: a person is "identifiable" if ANYONE, including the victim herself, COULD identify them from the picture itself AND known surrounding circumstances. Actual ID not necessary. JOHNSON P. v. () 3/10/2015 2:8 PRELIMS / 995 MISC - SENTENCING CRUEL AND UNUSUAL - MINORS - LWOP (DEFACTO) - POST MILLER Trial court USES the MILLER factors in sentencing a gun-using 17 yr old murderer and imposes 50 to LIFE sentence (assuming that it was defacto LWOP.) UPHELD. JORDAN P. v. () 3/16/2015 4:1 CRUEL AND UNUSUAL - MINORS - LIFE FOR NON-KILLERS - 25 NOT DEFACTO TRIAL SENTENCING MISC - PRE/995 995 - GROUNDS - DEF ATTY SUSPENDED BY STATE BAR At time of prelim, def atty was SUSPENDED from Bar for conduct indicating malpractice. IF, def sought WRIT, DCA would have set aside holding order and ordered new prelim. BUT, def went to trial with different atty. Def must show TRIAL prejudice, and he can't, so conviction Affirmed. ANDERSON P. v. () 3/10/2015 2:1 INSTRUCTIONS/ELEMENT MISC - FELONY S CONSPIRACY - NATURAL AND PROBABLE CONSEQUENCES - MURDER If the Murder theory of liability is def entered into CONSPIRACY to commit X and the murder was a natural/probable consequence of X, then the murder is, at most, SECOND DEGREE murder. RIVERA P. v. () 3/9/2015 3: MENTAL HEARINGS 1368 POST-FINDING HOUSING - IMPOSING DEADLINES ON BUREAUCRACY Does a court have the authority to give an ORDER that the Sheriff MUST transfer a PC 1368 def to a State Hospital within X number of days? Good Question that this opinion discusses but does not answer. BREWER P. v. () 3/13/2015 3: CIVIL PROSECUTIONS MISC - CIVIL SUMMARY JUDGMENT, MOTIONS FOR DDA brings CIVIL actions against def seeking injunctions, penalties and other remedies. DDA brings motion for summary judgment/adjudication. HELD: if LIABILITY is clear, but nature/amount of REMEDIES is disputed, then the motion should be GRANTED. CAHUENGA'S THE P. v. () 3/9/2015 2:5 SPOT MENTAL HEARINGS SexVioPredator TRIAL - EVIDENCE - EXPERTS - DSM - CHANGES IN, EFFECT OF DSM (5th edition) no longer includes "paraphilic coercive disorder". Def seeks to vacate his SexVioPredator finding based on testimony he has this disorder. HELD: the DSM is not "the law". Validity of past expert testimony is UNCHANGED by any changes in DSM. JOHNSON In Re () 3/13/2015 1:1