WEEKLY REPORT ON NEW DECISIONS

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1 WEEKLY REPORT ON NEW DECISIONS CRIMINAL LAW DIVISION CALIFORNIA DEPARTMENT OF JUSTICE KAMALA D. HARRIS, Attorney General NATHAN BARANKIN, Chief Deputy Attorney General, Legal Affairs GERALD ENGLER, Chief Assistant Attorney General of the Criminal Division SACRAMENTO, CALIFORNIA JANUARY 30, 2015 BROOK A. BENNIGSON, EDITOR REMINDER: When submitting case summaries, please remember to use the AWT - 13 Liner (W) template in ProLaw. Please do not change any of the formatting within the template. Also, when ing the 13-liner summary to the Crim_13_Liner group, please remember to fill in the subject box to indicate what you are sending. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT OPINIONS ASSUMING CLEAR-INVOCATION-OF-RIGHT-TO-COUNSEL RULE APPLIES PRE-MIRANDA, STATE COURT UNREASONABLY APPLIED SUPREME COURT PRECEDENT BY ANALYZING DEF. S STATEMENTS IN ISOLATION RATHER THAN COLLECTIVELY AND IN CONTEXT; A REASONABLE OFFICER WOULD HAVE UNDERSTOOD DEF. INVOKED; THE CONSTITUTIONAL ERROR WAS NOT HARMLESS Sessoms v. Runnels - Filed amended opinion Jan. 23, 2015, in (en banc) [2015 WL ; 2015 U.S.App.Lexis 1281]. Facts: Before a custodial interview, def. asked, There wouldn t be any possible way that I could have a a lawyer present while we do this? and added, Yeah, that s what my dad asked me to ask you guys uh, give me a lawyer. The police subsequently read him his Miranda rights. He waived his rights and confessed. The state court held def. had not unambiguously requested counsel. On remand for rehearing in light of Salinas v. Texas, 133 S. Ct (2013), following grant of certiorari, a 6:5 split 9th Circuit panel ruled in def. s favor. Held: (1.) Assuming that an invocation of the right to counsel that precedes a Miranda advisement must be unambiguous, the state appellate court unreasonably applied U.S. Supreme Court precedent by analyzing def. s statements in isolation rather than collectively and in context. (2.) A reasonable law enforcement officer would have understood def. s statements, both individually and collectively, as an unequivocal invocation of his right to counsel, which should have cut off further 1

2 questioning. (3.) The constitutional error had substantial and injurious effect or influence in determining the jury s verdict per Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). (Petition for Writ of Certiorari is being considered.) SACRAMENTO COUNTY - FIRST DEGREE FELONY MURDER; ROBBERY; BURGLARY - DENIAL OF HABEAS CORPUS REVERSED SA DAG JEFFREY D. FIRESTONE - (916) & SDAG KENNETH N. SOKOLER - (916) ooooo-- CALIFORNIA COURT OF APPEAL OPINIONS MILLER v. ALABAMA APPLIES RETROACTIVELY ON HABEAS CORPUS TO A PRISONER WHO WAS A JUVENILE AT THE TIME OF THE COMMITMENT OFFENSE In re Wilson - Filed Jan. 22, 2014, in B (2 DCA, Div. 7) [2015 WL ; 2015 Cal.App.Lexis 54]. Facts: In 1995, def., who was 17 years old, attempted to rob a bank in Pomona with two other juveniles. One of the codefs. killed a bank teller during the attempted robbery. Following a jury trial, def. and his codefs. were convicted of special-circumstance, first degree murder and attempted robbery. At the sentencing hearing, the trial court considered sentencing def. to 25 years to life because of his youth, but it ultimately sentenced him to life without the possibility of parole pursuant to P.C Held: (1.) Miller v. Alabama (2012) 132 S.Ct. 2455, which requires the trial court to consider individualized sentencing factors before sentencing a youthful offender to life without the possibility of parole, applies retroactively on habeas corpus to a prisoner who was a juvenile at the time of the commitment offense. (2.) P.C. 1170(d)(2) does not provide an adequate remedy to a youthful offender who was sentenced without consideration of the Miller factors. LOS ANGELES COUNTY - FIRST DEGREE MURDER; ATTEMPTED BANK ROBBERY - PETITION FOR WRIT OF HABEAS CORPUS GRANTED LA DAG TAYLOR NGUYEN - (213) AMENDMENT OF DELINQUENCY PETITION DURING CLOSING ARGUMENTS WAS NOT AN ABUSE OF DISCRETION In re A.L. - Filed Jan. 21, 2015, in A (1 DCA, Div. 4) [2015 WL ; 2015 Cal.App.Lexis 51]. Facts: Minor was charged with robbery along with an enhancement for personal use of a handgun, a deadly and dangerous weapon (P.C (b)). The evidence at the jurisdictional hearing, however, was that the minor s cohort in the robbery possessed the gun. During closing arguments, the 2

3 prosecutor stated that the minor had mistakenly been charged with the P.C (b) enhancement and should have been charged instead with a P.C (a) enhancement which allows for vicarious liability when another principal is armed with a firearm. The juvenile court allowed the prosecutor to amend the petition. Held: The juvenile court did not abuse its discretion in allowing the amendment. Under the accusatory pleading test, the P.C (a) enhancement was a lesser offense of the 12022(b) enhancement. Thus, minor was adequately apprised that the prosecution was seeking to prove elements which would establish a P.C (a) enhancement. There was no lack of notice or due process violation. CONTRA COSTA COUNTY - ROBBERY WITH ARMING ENHANCEMENT - AFFIRMED SF SDAG ERIC D. SHARE - (415) THE POSTRELEASE COMMUNITY SUPERVISION ACT IMPROPERLY AMENDED PROP. 36 People v. Armogeda - Filed Jan. 20, 2015, in G (4 DCA, Div. 3) [2015 WL ; 2015 Cal.App.Lexis 48]. Facts: Def. was ordered to serve jail time for committing a nonviolent drug violation of his postrelease community supervision. Under P.C , enacted by Prop. 36, a parolee who committed the same violation could not have been ordered to serve jail time. Held: (1.) The Postrelease Community Supervision Act improperly amended Prop. 36 (a voter initiative) and thereby violated the California Constitution. ORANGE COUNTY - POSSESSION OF A CONTROLLED SUBSTANCE - ORDER TO SERVE JAIL TIME REVERSED SD DAG TERESA TORREBLANCA - (619) IN A TRIAL FOR MULTIPLE DRUNK-DRIVING CRIMES, THE TRIAL COURT DID NOT HAVE A SUA SPONTE DUTY TO INSTRUCT ON MISTAKE OF FACT BASED ON DEF. S SUBJECTIVE BELIEF REGARDING HIS LEVEL OF IMPAIRMENT People v. Givan - Filed Jan. 20, 2015, in F (5 DCA) [2015 WL ; 2015 Cal.App.Lexis 46]. Facts: After drinking cocktails of liquor and energy drinks all night, def. drove his car 25mph over the speed limit through Bakersfield and collided with another car, killing one of its passengers and seriously injuring the other. A jury convicted def. of gross vehicular manslaughter while intoxicated (P.C (a)), driving under the influence and causing bodily injury (V.C (a)), and driving with a BAC of.08 or more (V.C (b)). Held: (1.) The trial court had no duty to sua sponte instruct on mistake of fact because def. s subjective intent or belief regarding his level of impairment was not an element necessary for conviction of any of def. s three counts. (2.) Driving under the influence and causing bodily injury is a lesser included offense of gross vehicular manslaughter while intoxicated and must be dismissed. KERN COUNTY - GROSS VEHICULAR MANSLAUGHTER; DUI CAUSING BODILY INJURY; DRIVING WITH EXCESSIVE BLOOD ALCOHOL CAUSING INJURY - AFFIRMED IN PART REVERSED IN PART FR DAG CHARITY S. WHITNEY - (559)

4 THE JUVENILE COURT ERRED IN FAILING TO MAKE SPECIAL IMMIGRANT JUVENILE STATUS (SIJS) FINDINGS In re I. O. - Filed Jan. 16, 2015, in A (1 DCA, Div. 5) [2015 WL ; 2015 Cal.App.Lexis 39]. Facts: Federal immigration law sets forth a procedure for certain aliens as special immigrants who have been declared dependent on a juvenile court, i.e, Special Immigrant Juvenile Status. SIJS is intended to protect abused, neglected, and abandoned unaccompanied minors through a process that allows them to become permanent citizens. As a prerequisite to applying for SIJS status, the minor must obtain certain findings from the state juvenile court. A juvenile court is to make SIJS findings if 1 or both of the minor s parents are not viable due to abuse, neglect, or abandonment. Here, the juvenile court declined to make SIJS findings because, although def. s father had abandoned him, he was living with his mother. Held: A juvenile court should make SIJS findings if reunification with either parent is not viable due to abuse, neglect, or abandonment. This interpretation of the federal statute is consistent with federal immigration policy that defines SIJS-eligible children as those who may be living in this country with a foster family, an appointed guardian, or the non-abusive parent. ALAMEDA COUNTY - RECEIVING STOLEN PROPERTY - FAILURE TO MAKE SIJS FINDINGS REVERSED SF SDAG ERIC D. SHARE - (415) DEF. S REJECTION OF A NEGOTIATED SENTENCE PERMITS IMPOSITION OF CUSTODIAL SENTENCE AND DOES NOT JUSTIFY PLEA WITHDRAWAL People v. Alexander - Filed Jan. 16, 2015, in B (2 DCA, Div. 5) [2015 WL ; 2015 Cal.App.Lexis 37]. Facts: Def. pleaded guilty to possession of methamphetamine. Pursuant to the plea agreement, he was to participate in drug court and complete a residential treatment program. However, when the case was transferred to drug court, def. refused to participate, and the case was transferred back to the trial court for sentencing. At sentencing, def. attempted to negotiate for more lenient terms of probation. The court instructed def. to choose between an indicated probation sentence and the low term for the offense. Def. refused to choose and instead requested to withdraw his plea. The court denied def. s request and imposed the low term. Held: (1.) Def. s unilateral refusal to comply with the plea agreement justified imposition of the low term, therefore the sentence was proper. (2.) Def. did not demonstrate good cause to withdraw his plea, therefore the denial of that motion was proper. LOS ANGELES COUNTY - POSSESSION OF METHAMPHETAMINE - AFFIRMED LA DAG NATHAN GUTTMAN - (213)

5 UNDER THE COMPASSIONATE USE ACT, ABSENCE OF BUSINESS FORMALITY DOES NOT PRECLUDE A COLLECTIVE CULTIVATION DEFENSE WHERE TWO QUALIFIED MEDICAL MARIJUANA PATIENTS ARE GROWING MARIJUANA FOR THEIR OWN MEDICAL NEEDS People v. Orlosky - Filed Jan. 16, 2015, in D (4 DCA, Div. 1) [2015 WL ; 2015 Cal.App.Lexis 36]. Facts: Def. and his roommate were cultivating marijuana. Both had medical marijuana recommendations. The jury acquitted def. of possession for sale. Held: (1.) The trial court erred by not telling the jury that def. could lawfully grow marijuana commensurate with two patients medical needs if he and his roommate were found to be qualified patients growing for their own use. (2.) No mistake of fact instruction was warranted. (3.) The definition of marijuana found in Health and Safety Code provisions governing controlled substances (H&S 11018) is applicable in general CUA cases; the definition set forth in the MMP portion of the code (H&S (d)) is reserved for defendants seeking protection under the MMP s safe harbor provisions. SAN DIEGO COUNTY - MARIJUANA POSSESSION AND CULTIVATION - REVERSED SD DAG HEATHER F. CRAWFORD - (619) THE STANDARD JURY INSTRUCTION ON THE MEDICAL MARIJUANA COLLECTIVE CULTIVATION DEFENSE WAS PREJUDICIALLY INADEQUATE People v. Anderson - Filed Jan. 9, 2015, in F (5 DCA) [2015 WL ; 2015 Cal.App.Lexis 17]. Facts: Deputies seized almost 200 marijuana plants growing on def. s property and found he had sold/consigned $3,000 of marijuana to an existing collective. Two recommendations, each for up to 99 plants, were posted at the property. The search of def. s home uncovered various forms of marijuana along with uncompleted paperwork that is required to form a collective. Both def. and another resident had doctors recommendations for medical marijuana. Witnesses testified that def. and others planned to form a collective. Held: (1.) Medical marijuana collectives are permitted under the 2003 Medical Marijuana Program Act. The standard instruction for the medical marijuana collective cultivation defense was prejudicial because it did not adequately explain how a collective may operate: that is, some collective members may participate in cultivation while others may contribute money. A more complete instruction would have assisted the jurors in evaluating conflicting evidence. TUOLUMNE COUNTY - UNAUTHORIZED CULTIVATION OF MARIJUANA - REVERSED FR SDAG KATHLEEN A. MCKENNA - (559) ooooo-- ATTENTION: Please submit all address changes to Betty Micheli, at: THE WEEKLY REPORTS CAN BE FOUND IN THE CRIMINAL LAW BRIEF BANK AND ON THE ATTORNEY GENERAL S J DRIVE AT: J:\Div. of Criminal Law\Weekly Reports. 5

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