1. society
2. crime
3. personal offense
4. homicide

CaseBank:
Cases Added - May 2015 (sorted by Court)
www.casebanklaw.com
SENTENCING
MISC - SENTENCING
FEES/ASSESSMENTS - PENALTY ASSESSMENTS APPLY TO DRUG LAB
FINE - NOT
Penalty assessments are NOT to added to drug lab and drug
programs fees under H&S 11372.5 and 11372.7.
MOORE
P. v. ()
5/1/2015
SUPP
JUVENILE
MISC - JUVENILE
INSTRUCTIONS/ELEMENT
ROBBERY / ASSAULTIVE
S
DOMESTIC VIOLENCE - CRIMES
273.5 PC - 273.5(e)(1) - PRIOR OFFENSE
A prior DV conviction results in more serious punishment for PC
273.5 charge under PC 273.5(f). HELD: a STIP to the prior
requires a full Boykin-Tahl waiver. This more than just stipping to
one element. This is analogous to admitting to an enhancement.
CROSS
P. v. ()
5/18/2015
CAL
JUVENILE
INCOMPETENT MINORS - 709 W&I - MINOR HAS BURDEN
Minor seeks finding of INCOMPETENCE under W&I 709. HELD:
minor has the burden of proof.
R. V.
In Re ()
5/18/2015
CAL
MISCELLANEOUS
RETROACTIVE
In late 80's, DDA twice dismissed a murder case against def due
to witness problems. Years later PC 1387's two-bite rule became a
three-bite rule. DDA re-files and proves an earlier dismissal was
excusable neglect. HELD: No. Using STOGNER reasoning, once
case is dead, it can't be saved by new statute.
TRUJEQUE
P. v. ()
5/28/2015
CAL
REPRESENTATION ISSUES
Pro Per def loses his library privileges in jail. He then asks for, and
gets, atty. On appeal, he claims he was FORCED into asking for
atty. HELD: record does not support def's claim. Opinion never
says what to do in this situation if def insisted on staying pro per.
TRUJEQUE
P. v. ()
5/28/2015
CAL
MISC - DEF'S STATEMENTS
While a pro per, def writes the D.A. a letter fully confessing to
multiple murders and asks for the death penalty. At trial, def atty
objects. HELD: letter can be used as evid, BUT, court should
redact irrelevant and/or PC 352 material.
TRUJEQUE
P. v. ()
5/28/2015
CAL
SENTENCING
RE-SENTENCE - 47 & 36
WITNESS ISSUES
WITNESS TAKING FIFTH - INVOKES AS TO TOPIC A, BUT NOT TOPIC B
Witness has relevant information on topics A B and C. Witness
takes the fifth. Only topic A potentially exposes witness to
prosecution. Can witness be make to answer questions re: topics
B and C? YES.
TRUJEQUE
P. v. ()
5/28/2015
CAL
6:
MISC
JUDICIAL ESTOPPEL - ASKING FOR CONTINUANCE PAST A DEADLINE
Near the end of def's probation period, DDA seeks to modify
restitution order. Def asks for continuance of hearing to date after
probation period ends. Court agrees. HELD: Def is ESTOPPED
from asserting court lost jurisdiction.
FORD
P. v. ()
5/28/2015
CAL
SENTENCING
PROP 36 - DANGEROUSNESS - NO RIGHT TO JURY
Def has no right to jury trial on issue of his DANGEROUSNESS
when he requests a Prop 36 - 3 strike resentencing.
LOPEZ
P. v. ()
5/4/2015
In late 60's, def was convicted by JUVI referee of manslaughter,
and THEN found unfit and convicted again in adult court of 187.
This common practice was found to violate double jeopardy and
statute was changed. HELD: Def's adult conviction CANNOT be
used as a prior 187 spec circ when def commits new murder.
TRUJEQUE
P. v. ()
5/28/2015
CAL
MISCELLANEOUS
DEF'S STATEMENTS WHILE PRO PER
SPECIAL CIRCUMSTANCES
PRIOR MURDER CONVICTION - COLLATERAL ATTACKS ON CONVICTION
TRIAL
PRO PER - REQUEST TO UNDO FARETTA - AMBIGUOUS
DEFENDANT'S
STATEMENTS
INCOMPETENT MINORS - 709 W&I - APPELLATE REVIEW
ONLY evidence presented at minor's W&I 709 hearing re:
COMPETENCE was single doctor's report concluding minor was
NOT competent. Court found him competent. DCA affirmed.
Supremes REVERSE. Standard is "substantial evidence" and it is
not present.
R. V.
In Re ()
5/18/2015
CAL
D. P. / SPEC. CIRC.
EX POST FACTO - PC 1387 TWO-BITE RULE - CHANGE TO 3-BITES
MOTIONS
MISC - JUVENILE
RE-SENTENCE - 47 & 36
PROP 36 - DANGEROUSNESS - PROP 47's DEFINITION OF
Prop 47 "dangerousness" does NOT apply to Prop 36
"dangerousness". The word "code" was a drafting error. It should
be read as "act".
LOPEZ
P. v. ()
5/4/2015
6:
CaseBank:
Cases Added - May 2015 (sorted by Court)
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SENTENCING
RE-SENTENCE - 47 & 36
SENTENCING
RE-SENTENCE - 47 & 36
PROP 36 - ELIGIBILITY - ELIGIBLE ON SOME COUNTS, NOT OTHERS
Def is serving TWO 3-strike sentences, one for a SERIOUS
felony, and one for NON-SERIOUS felony. HELD: def is NOT
eligible for a Prop 36 resentencing.
DENIZE
P. v. ()
5/13/2015
PAROLE
6:
PAROLE DECISIONS
PROP 36 - PROCEDURE - DEF'S RIGHT TO ATTY
Def's petition for Prop 36 resentencing is summarily denied since
he is ineligible. Def appeals asserting he had right to atty to
present his petition. HELD: no right to atty.
DENIZE
P. v. ()
5/13/2015
SENTENCING
PAROLE DECISIONS - REMEDY UPON JUDICIAL REVERSAL
Bd grants parole. Governor Reverses Bd. Court Reverses
Governor and orders def RELEASED w/in 5 days. HELD: WRONG
REMEDY. Must remand to Bd. (this case: def commits misconduct
in prison a few days after court ruling.)
SENA
In Re ()
5/19/2015
6:
INSTRUCTIONS/ELEMENT
S
MENTAL DEFENSES
UNCONSCIOUSNESS
Evidence that def had a GLAZED LOOK on his face when he shot,
and that she stared blankly in to space when first responders tried
to talk to her supported the giving of UNCONSCIOUS instruction.
GANA
P. v. ()
5/5/2015
4:3
SENTENCING
MISC - SENTENCING
DOMESTIC VIOLENCE - PROTECTIVE ORDERS
False Imprisonment of spouse qualified as "abuse" against spouse
under PC 136.2(i) and therefore, court had authority to impose a
Post-release Protective Order.
THERMAN
P. v. ()
5/20/2015
3:
SENTENCING
RESTITUTION
654
GENERALLY - DISMISS NOT, ONLY STAY PUNISHMENT
Trial court uses the VARGAS 3-strike case (two PC 654 crimes
can't be used as two strikes) to DISMISS a crime that was PC 654
to other crime. REVERSED. --- The only option is to STAY the
punishment.
ALEJANDRO B.
In Re ()
5/7/2015
5:
EVIDENCE
352 / RELEVANCE
DUI SURVIVOR STORIES TOLD TO DEF - WATSON MURDER CASE
In WATSON murder case, court permitted jury to hear DETAILS of
what def heard in his prior DUI classes from the actual DUIsurvivors that presented their stories to the def. DCA finds that
this was ERROR under PC 352. (But harmless.)
CORVARRUBIAS
P. v. ()
5/12/2015
4:1
INSTRUCTIONS/ELEMENT
PRIORS
S
SERIOUS FELONY - 667 PC - BROUGHT AND TRIED SEPARATELY
Def has two convictions for serious felonies that were charged in
the same complaint and pled to on the same day. (i.e. not brought
and tried separately.) Court convicted def of TWO 667(a) priors
and stayed punishment of one under PC 654. REVERSED. Only
ONE can qualify under the terms of 667(a).
JONES
P. v. ()
5/21/2015
3:
JUVENILE
MISC - JUVENILE
GENERALLY - ADDING RESTITUTION AFTER SENTENCING
At sentencing, DDA fails to seek a particular item of restitution.
Victim, later, asks court (through DDA) to modify the restitution
order. HELD: Victim is not bound by DDA's original mistake.
Court has juris to modify order. --- DDA also cannot plea bargain
away a victim's right to restitution.
PIERCE
P. v. ()
3/6/2015
3:
MOTIONS
REPRESENTATION ISSUES
PRO PER - DUTY TO REVOKE ??
Def appeals asserting it was ERROR for trial court to (1) grant him
Pro Per status in the first place; and (2) failing to REVOKE it, due
to def's mental health issues. HELD: Trial court not of aware of
def's issue until mid-trial, AND, def was able to do credible job
representing himself.
MIRANDA
P. v. ()
5/13/2015
2:8
6:
RECORDS - SEALING OF - 781 W&I
Def seeks sealing of his Juvi records under W&I 781(a). Def was
eligible, but court was not satisfied his rehabilitation was complete.
HELD: was proper for the court to consider the seriousness of the
juvi crimes. -- REHABILITATION is NOT a vague term.
J. W.
In Re ()
5/6/2015
2:8
MOTIONS
BAIL / OR
BAIL FORFEITURE - DEF FOUND IN FOREIGN COUNTRY
Def FTA's. Bail revoked. Def found in Mexico. 180-day period runs
out while D.A.'s office is pondering its extradition decision. Bail
Bond seeks a tolling of 180-day period during D.A.'s deliberation
period. HELD: No statutory authority for such tolling.
TINGCUNGCO
P. v. ()
5/29/2015
2:8
CaseBank:
Cases Added - May 2015 (sorted by Court)
www.casebanklaw.com
INSTRUCTIONS/ELEMENT
HOMICIDE
S
MALICE (IMPLIED) - BRANDISHING LOADED GUN
While under influence of drugs/alcohol, def brandishes a loaded
gun (takes off the safety) at best friend, fires one shot, and kills
him. HELD: sufficient evid for IMPLIED MALICE notwithstanding
lack of any evidence of motive.
McNALLY
P. v. ()
5/21/2015
2:6
TRIAL
JUROR/VERDICT ISSUES
JUROR ADDRESSES
Juror X is excused during deliberations for misconduct. After
verdict, X tells defense of misbehavior by foreperson that told the
judge about him. Def request for juror addresses DENIED.
UPHELD: Deliberation started anew once X left. X knows nothing
of "real" deliberations. (X not trustworthy)
McNALLY
P. v. ()
5/21/2015
2:6
APPELLATE ISSUES
MISC APPELLATE ISSUES
TRIAL
MISC - TRIAL
MISTRIAL - AVOIDING BY CURING NO-NO'S BY ADMONITION
After 402 motion, recording of def's police statement is redacted
under PC 352. By mistake, unredated version is played to jury.
Jury is told to disregard EVERYTHING they just heard. Then the
redacted version is played. HELD: Mistrial properly denied.
Remedy was adequate.
McNALLY
P. v. ()
5/21/2015
2:6
INSTRUCTIONS/ELEMENT
S
Just because H&S 11357(b) is an infraction, and juries don't
decide infractions, is NOT a reason to not give 11357(b) as a
lesser under appropriate facts.
WALKER
P. v. ()
5/27/2015
SENTENCING
INVITED ERROR - MUST HAVE TACTICAL MOTIVATION
Not objecting, or even agreeing with court's incorrect legal
reasoning, is NOT invited error. The def atty must have had a
TACTICAL reason for what he/she did or didn't do.
WALKER
P. v. ()
5/27/2015
2:1
INSTRUCTIONS/ELEMENT
GENERALLY
S
CALCRIM - 361 - DEF'S FAILURE TO EXPLAIN OR DENY
CALCRIM 361 - Def's failure to explain something during his
testimony - is NOT unconstitutional, and was appropriate on the
facts of this case.
VEGA
P. v. ()
5/1/2015
MISCELLANEOUS
1:4
ATTY ETHICS
Def atty represents def in successful Habeas that resulted in
Parole Bd. changing their procedures for all future defendants.
Atty seeks fees under CCP 1021.5 of $439,421.65. HELD: Yes,
atty is entitled to fees under 1021.5. Amount sought is TOO
HIGH. -- (correct amount to be decided later)
BUTLER
In Re ()
5/15/2015
1:2
INSTRUCTIONS/ELEMENT
GENERALLY
S CONSPIRACY - CO-CONSPIRATORS NOT FRIENDS, JUST "BUSINESS"
Drug suppliers, middlemen, and sellers can be participants in a
Drug Conspiracy even if their relationship is not "exclusive".
VEGA-ROBLES
P. v. ()
5/7/2015
1:1
2:1
MISC - SENTENCING
CONSEC - PRISON CRIMES - LIFERS
Def serving life sentence when he commits crime in prison. Per
PC 1170.1(c), the new sentence runs CONSEC from the date def
is GRANTED PAROLE. Not from the date def first becomes
eligible for parole.
COLEMAN
In Re ()
5/14/2015
1:5
INSTRUCTIONS/ELEMENT
HOMICIDE
S
FELONY 187 - AIDING 211 POST KILL, PRE 211 COMPLETION
Court had SUA SPONTE duty to modify CALCRIM felony-murder
instructions to make clear that an Aid/Abettor who joins Robbery
AFTER the KILLIING is NOT liable for felony-murder.
HILL
P. v. ()
4/16/2015
1:2
SENTENCING
ATTY FEES UNDER CCP 1021.5 - SUCCESSFUL HABEAS ATTY
LESSERS
GENERALLY - INFRACTION AS A LESSER
RE-SENTENCE - 47 & 36
PROP 47 - ELIGIBILITY - EFFECT OF PAST PLEA BARGAIN
Fact that def avoided a more serious charge by making a plea
bargain does NOT make def ineligible for Prop 47 relief based on
the charge he was convicted of.
T. W.
def v. SUP
4/21/2015
1:1
CT
INSTRUCTIONS/ELEMENT
ENHANCEMENTS
S
GANG - 186.22 PC - BENEFIT OF - DEF IS NOT A GANG MEMBER
Def is NOT a gang member, but he uses Gang X to market his
drugs. Therefore, crime that benefited Def's drug conspiracy
ALSO benefited Gang X. Therefore, Gang Enhancement applied
under PC PC 186.22(b).
VEGA-ROBLES
P. v. ()
5/7/2015
1:1
CaseBank:
Cases Added - May 2015 (sorted by Court)
www.casebanklaw.com
MOTIONS
DOUBLE JEOPARDY
TRIAL
FED CONVICTION / STATE PROSECUTION - 656 PC
Def convicted of FEDERAL crime of WIRE FRAUD for use of
phone to commit drug crime. HELD: Double Jeopardy (even under
Calif rules) does NOT prevent Calif prosecution for Drug
Conspiracy that involved many MORE acts than one involved in
FED case.
VEGA-ROBLES
P. v. ()
5/7/2015
1:1
SENTENCING
PROBATION
TERMS - NO "x" - NEED TO INSERT "KNOWINGLY" (NOT ALWAYS)
Def's probation terms simply said don't possess guns; don't
possess drugs. HELD: this is adequate. No need to insert
"knowingly" into every term even if knowledge must be shown
before a V/P can be sustained.
HALL
P. v. ()
5/15/2015
1:1
ARGUMENT
DDA NO-NO - IMPERFECT SELF-DEFENSE IS A "LOOPHOLE"
In closing argument, DDA referred to Imperfect Self-Defense as
LOOPHOLE that would permit def to escape responsibility.
HELD: this was MISCONDUCT, but harmless.
PEAU
P. v. ()
5/7/2015
1:1