Recent Developments in California Criminal Law, CCAP
Case Name: People v. Watson , District: 4 DCA , Division: 1 , Case #: D061668
Opinion Date: 10/8/2013 , DAR #: 13476
Case Holding:
Intoxicated defendant who drove her dune buggy into another vehicle, injuring its driver, was
not entitled to a reduction in victim restitution based on comparative fault. While intoxicated,
defendant drove her dune buggy at night in the Imperial County dunes without headlights and
at a high rate of speed. She hit a 15-year-old boy driving a quad, who suffered severe injuries to
his leg during the collision. Defendant pled no contest to driving with a blood alcohol level of .
08% or higher (Veh. Code, §23153, subd. (b)) and causing injury. She received probation. At a
restitution hearing, she presented expert testimony regarding the victim's comparative fault,
but the court failed to reduce the amount of restitution. Defendant appealed. Held: Affirmed.
Section 1202.4 mandates restitution to cover victims' economic losses, absent "compelling and
extraordinary reasons." In People v. Millard (2009) 175 Cal.App.4th 7, the court found the
victim bore "substantial responsibility" for his injuries, and, as a result, "compelling and
extraordinary reasons" justified the application of comparative fault principles. However,
Millard does not require application of comparative fault in criminal proceedings, and,
regardless, the victim was not substantially responsible for his injuries. In addition, restitution
may be imposed under section 1203.1 to serve broader goals, such as furthering rehabilitation,
and, here, imposing the full victim restitution served rehabilitative purposes.
Case Name: People v. Lester , District: 4 DCA , Division: 2 , Case #: E055009
Opinion Date: 10/7/2013 , DAR #: 13467
Case Holding:
Defendant serving indeterminate Three Strikes sentence that was not final when the Three
Strikes Reform Act (Proposition 36) was enacted is not entitled to an automatic sentence
reduction under the new law. A jury convicted Lester of possessing drugs for sale with
enhancements and found he had three strike priors. On October 28, 2011, he was sentenced to
25 years to life, plus six years. On appeal, he argued that his sentence should automatically be
reduced based on Proposition 36 and In re Estrada (1965) 63 Cal.2d 740. Held: Affirmed. On
November 6, 2012, Proposition 36 was enacted while Lester’s appeal was pending. It changed the
law to provide for an indeterminate Three Strikes sentence where the current offense is serious
or violent; otherwise the defendant is sentenced as though he had only one strike prior. It also
created section 1170.126, which enables qualified inmates already serving indeterminate Three
Strikes sentences to petition for resentencing under the amended sentencing laws. The court
may deny relief if it finds resentencing would pose an unreasonable risk to public safety. Under
Estrada, a statutory amendment mitigating punishment applies retroactively unless there is a
savings clause, which bars retroactive application. Based on the analysis and arguments in the
Ballot Pamphlet and the mechanism for obtaining a reduced sentence under section 1170.126,
the court found section 1170.126 is the functional equivalent of a savings clause. [Editor's Note:
Justice Hollenhorst dissented, finding retroactive application of the law is consistent with its
objectives (to reduce overcrowding, save money and enhance public safety), and the absence of a
savings clause in the statutory implementation of the law.]
Police officers did not violate Lester's Fourth Amendment rights when they entered his home to
determine if there were any victims of a reported fight. Lester’s neighbor called 911, reporting
that several females near a red car were screaming and possibly going to fight. When officers
arrived, they did not see the females or the car but saw Lester and his codefendant exit the
apartment next to the 911 caller's apartment. When asked, the codefendant said there had been
a problem with his "baby mama" but it resolved. Lester was detained because officers suspected
he had been involved in the disturbance. Officers knocked on the door to Lester's apartment but
received no response. An officer entered to ensure there were no injured females inside. He
smelled marijuana and saw it, in addition to cocaine, in plain sight. Outside, Lester told police
he was on parole, at which point officers entered his apartment to seize the drugs. The
circumstances created a reasonable basis for officers to believe there could be females in need
of aid inside the apartment. Regardless, the contraband would have been inevitably discovered
due to the search conditions of Lester's parole.
Case Name: People v. Reece , District: 6 DCA , Case #: H038356
Opinion Date: 10/4/2013 , DAR #: 13404
Case Holding:
The Realignment Act applies to defendant whose sentence was imposed before, but executed
after, the operative date of the Act. Reece's prison sentence for petty thefts with priors was
imposed, but suspended in execution, prior to October 1, 2011 (the effective date of
Realignment), and he was placed on probation. In 2012, he admitted a violation and his five
year, eight month sentence was executed. The trial court ordered him to serve the term in
county jail. The prosecution appealed, claiming the trial court lacked jurisdiction to alter the
location of incarceration. Held: Affirmed. When the legislative history and declaration of intent
(Pen. Code, § 17.5) of the Act are viewed as a whole, it is apparent the Legislature intended to
apply the Act to qualified defendants who were sentenced or had their sentences executed after
October 1, 2011. People v. Howard (1997) 16 Cal.4th 1081, only proscribes reducing a previously-
imposed sentence; it is silent with respect to the location of incarceration. Applying
Realignment to Reece would not reduce his sentence by potentially allowing a split term or not
requiring parole upon release. Reece did not receive a split term and whether parole is ordered
does not affect the length of the term. Although section 1170, subdivision (h)(6) operates as a
savings clause foreclosing retroactive application of the Act, Reece's sentences were not
executed until after the effective date of the Act, which brings them within the scope of the new
law.
Case Name: People v. Valenzuela , District: 6 DCA , Case #: H038658
Opinion Date: 10/3/2013 , DAR #: 13331
Case Holding:
The failure to object to a Penal Code section 1202.5 crime prevention fine forfeits any challenge
to the fine on appeal. Appellant pled guilty to robbery and other offenses and admitted the use
of a gun. He was sentenced to 24 years in prison and over $10,000 in fines and fees. On appeal
he challenged the court's imposition of a $10 theft fine plus penalties and assessments, based on
insufficient evidence of ability to pay. Held: Affirmed. Although parts of the decision in People
v. McCullough (2013) 56 Cal.4th 589 reflect the court intended a narrow holding, the logic
therein applies to the fine here—where the Legislature views the financial burden of the fine to
be de minimis and has identified no procedure or safeguards for its imposition, the rationale for
forfeiture is strong. The factual nature of an ability to pay finding favors resolution of that
matter in the trial court. Here, the amount of the fine, $10 plus $28 in penalty assessments, was
sufficiently de minimus to apply McCullough's reasoning. The issue was not raised in the trial
court and was thus forfeited. The court also held that, in light of the small amount of the fine
and the potential for prison wages, counsel was not ineffective for failing to object to the crime
prevention fine.
Case Name: People v. Neasham , District: 1 DCA , Division: 3 , Case #: A134873
Opinion Date: 10/8/2013 , DAR #: 13527
Case Holding:
The evidence was insufficient to prove insurance agent committed theft by larceny where he
accepted payment from an elderly woman for an annuity policy that was then issued in her
name. Defendant, a licensed insurance agent, sold a 10-year annuity policy to an 83-year-old
woman who, according to some witnesses, exhibited signs of dementia. A jury convicted him of
elder theft (Pen. Code, § 368, subd. (d)) under a theft by larceny theory. The appellate court
reversed. Even assuming the elder was incapable of giving informed consent to the purchase of
the annuity, defendant's acceptance of money for the policy was not trespassory. He transmitted
the elder's check, which was not payable to him, to the insurance company which issued the
annuity in the elder’s name; he did not convert the funds to his own use. The fact that
transferring funds from a certificate of deposit to the annuity may not have been in the elder's
best interest did not make it a trespassory taking. The annuity was approved by the California
Department of Insurance for sale to persons of the elder's age and treating the sale as a
trespassory taking would convert otherwise lawful activity into a crime. Further, the jury was
misinstructed regarding the intent required for theft by larceny (CALCRIM No. 1800). As
altered, the instruction allowed the jury to convict if it found the defendant intended to deprive
the owner of the property permanently or removed (rather than intended to remove) it from the
owner's possession for so extended a period of time that she would be deprived of a major
portion of the enjoyment or value of the property. The elimination of the intent requirement in
the instruction was prejudicial error under the Chapman standard.
Case Name: People v. Juhasz , District: 3 DCA , Case #: C068288
Opinion Date: 10/3/2013 , DAR #: 13307
Case Holding:
A defendant's refusal of drug treatment in a prior case cannot be used to exclude him from a
Proposition 36 program in a different case. Appellant pled no contest to possession of
methamphetamine with a provision he would be granted probation and referred for drug
treatment under Proposition 36. Based on two past unsuccessful attempts at treatment in prior
cases, the probation department deemed appellant ineligible for Proposition 36 treatment, and
the trial court found him unamenable to drug treatment in the present case. At sentencing, the
court denied his request to be reinstated in the Proposition 36 program. Held: Reversed.
Although appellant's deletions from Proposition 36 programs in the two earlier cases were
refusals of drug treatment under Penal Code section 1210.1, subdivision (b)(4), those failures do
not operate as refusals in future cases. Any other interpretation would be at odds with the
intent of Proposition 36, which anticipated that such offenders may falter in their recovery and
thus gives offenders several chances at probation before imposing jail time. There was also no
clear and convincing evidence appellant was presently unamenable to any form of drug
treatment, as is required for exclusion under section 1210.1, subdivision (b)(5).
Courtesy of CCAP, visit Matthew on Google for more recent changes ion the criminal law in
California.
Opinion Date: 10/8/2013 , DAR #: 13476
Case Holding:
Intoxicated defendant who drove her dune buggy into another vehicle, injuring its driver, was
not entitled to a reduction in victim restitution based on comparative fault. While intoxicated,
defendant drove her dune buggy at night in the Imperial County dunes without headlights and
at a high rate of speed. She hit a 15-year-old boy driving a quad, who suffered severe injuries to
his leg during the collision. Defendant pled no contest to driving with a blood alcohol level of .
08% or higher (Veh. Code, §23153, subd. (b)) and causing injury. She received probation. At a
restitution hearing, she presented expert testimony regarding the victim's comparative fault,
but the court failed to reduce the amount of restitution. Defendant appealed. Held: Affirmed.
Section 1202.4 mandates restitution to cover victims' economic losses, absent "compelling and
extraordinary reasons." In People v. Millard (2009) 175 Cal.App.4th 7, the court found the
victim bore "substantial responsibility" for his injuries, and, as a result, "compelling and
extraordinary reasons" justified the application of comparative fault principles. However,
Millard does not require application of comparative fault in criminal proceedings, and,
regardless, the victim was not substantially responsible for his injuries. In addition, restitution
may be imposed under section 1203.1 to serve broader goals, such as furthering rehabilitation,
and, here, imposing the full victim restitution served rehabilitative purposes.
Case Name: People v. Lester , District: 4 DCA , Division: 2 , Case #: E055009
Opinion Date: 10/7/2013 , DAR #: 13467
Case Holding:
Defendant serving indeterminate Three Strikes sentence that was not final when the Three
Strikes Reform Act (Proposition 36) was enacted is not entitled to an automatic sentence
reduction under the new law. A jury convicted Lester of possessing drugs for sale with
enhancements and found he had three strike priors. On October 28, 2011, he was sentenced to
25 years to life, plus six years. On appeal, he argued that his sentence should automatically be
reduced based on Proposition 36 and In re Estrada (1965) 63 Cal.2d 740. Held: Affirmed. On
November 6, 2012, Proposition 36 was enacted while Lester’s appeal was pending. It changed the
law to provide for an indeterminate Three Strikes sentence where the current offense is serious
or violent; otherwise the defendant is sentenced as though he had only one strike prior. It also
created section 1170.126, which enables qualified inmates already serving indeterminate Three
Strikes sentences to petition for resentencing under the amended sentencing laws. The court
may deny relief if it finds resentencing would pose an unreasonable risk to public safety. Under
Estrada, a statutory amendment mitigating punishment applies retroactively unless there is a
savings clause, which bars retroactive application. Based on the analysis and arguments in the
Ballot Pamphlet and the mechanism for obtaining a reduced sentence under section 1170.126,
the court found section 1170.126 is the functional equivalent of a savings clause. [Editor's Note:
Justice Hollenhorst dissented, finding retroactive application of the law is consistent with its
objectives (to reduce overcrowding, save money and enhance public safety), and the absence of a
savings clause in the statutory implementation of the law.]
Police officers did not violate Lester's Fourth Amendment rights when they entered his home to
determine if there were any victims of a reported fight. Lester’s neighbor called 911, reporting
that several females near a red car were screaming and possibly going to fight. When officers
arrived, they did not see the females or the car but saw Lester and his codefendant exit the
apartment next to the 911 caller's apartment. When asked, the codefendant said there had been
a problem with his "baby mama" but it resolved. Lester was detained because officers suspected
he had been involved in the disturbance. Officers knocked on the door to Lester's apartment but
received no response. An officer entered to ensure there were no injured females inside. He
smelled marijuana and saw it, in addition to cocaine, in plain sight. Outside, Lester told police
he was on parole, at which point officers entered his apartment to seize the drugs. The
circumstances created a reasonable basis for officers to believe there could be females in need
of aid inside the apartment. Regardless, the contraband would have been inevitably discovered
due to the search conditions of Lester's parole.
Case Name: People v. Reece , District: 6 DCA , Case #: H038356
Opinion Date: 10/4/2013 , DAR #: 13404
Case Holding:
The Realignment Act applies to defendant whose sentence was imposed before, but executed
after, the operative date of the Act. Reece's prison sentence for petty thefts with priors was
imposed, but suspended in execution, prior to October 1, 2011 (the effective date of
Realignment), and he was placed on probation. In 2012, he admitted a violation and his five
year, eight month sentence was executed. The trial court ordered him to serve the term in
county jail. The prosecution appealed, claiming the trial court lacked jurisdiction to alter the
location of incarceration. Held: Affirmed. When the legislative history and declaration of intent
(Pen. Code, § 17.5) of the Act are viewed as a whole, it is apparent the Legislature intended to
apply the Act to qualified defendants who were sentenced or had their sentences executed after
October 1, 2011. People v. Howard (1997) 16 Cal.4th 1081, only proscribes reducing a previously-
imposed sentence; it is silent with respect to the location of incarceration. Applying
Realignment to Reece would not reduce his sentence by potentially allowing a split term or not
requiring parole upon release. Reece did not receive a split term and whether parole is ordered
does not affect the length of the term. Although section 1170, subdivision (h)(6) operates as a
savings clause foreclosing retroactive application of the Act, Reece's sentences were not
executed until after the effective date of the Act, which brings them within the scope of the new
law.
Case Name: People v. Valenzuela , District: 6 DCA , Case #: H038658
Opinion Date: 10/3/2013 , DAR #: 13331
Case Holding:
The failure to object to a Penal Code section 1202.5 crime prevention fine forfeits any challenge
to the fine on appeal. Appellant pled guilty to robbery and other offenses and admitted the use
of a gun. He was sentenced to 24 years in prison and over $10,000 in fines and fees. On appeal
he challenged the court's imposition of a $10 theft fine plus penalties and assessments, based on
insufficient evidence of ability to pay. Held: Affirmed. Although parts of the decision in People
v. McCullough (2013) 56 Cal.4th 589 reflect the court intended a narrow holding, the logic
therein applies to the fine here—where the Legislature views the financial burden of the fine to
be de minimis and has identified no procedure or safeguards for its imposition, the rationale for
forfeiture is strong. The factual nature of an ability to pay finding favors resolution of that
matter in the trial court. Here, the amount of the fine, $10 plus $28 in penalty assessments, was
sufficiently de minimus to apply McCullough's reasoning. The issue was not raised in the trial
court and was thus forfeited. The court also held that, in light of the small amount of the fine
and the potential for prison wages, counsel was not ineffective for failing to object to the crime
prevention fine.
Case Name: People v. Neasham , District: 1 DCA , Division: 3 , Case #: A134873
Opinion Date: 10/8/2013 , DAR #: 13527
Case Holding:
The evidence was insufficient to prove insurance agent committed theft by larceny where he
accepted payment from an elderly woman for an annuity policy that was then issued in her
name. Defendant, a licensed insurance agent, sold a 10-year annuity policy to an 83-year-old
woman who, according to some witnesses, exhibited signs of dementia. A jury convicted him of
elder theft (Pen. Code, § 368, subd. (d)) under a theft by larceny theory. The appellate court
reversed. Even assuming the elder was incapable of giving informed consent to the purchase of
the annuity, defendant's acceptance of money for the policy was not trespassory. He transmitted
the elder's check, which was not payable to him, to the insurance company which issued the
annuity in the elder’s name; he did not convert the funds to his own use. The fact that
transferring funds from a certificate of deposit to the annuity may not have been in the elder's
best interest did not make it a trespassory taking. The annuity was approved by the California
Department of Insurance for sale to persons of the elder's age and treating the sale as a
trespassory taking would convert otherwise lawful activity into a crime. Further, the jury was
misinstructed regarding the intent required for theft by larceny (CALCRIM No. 1800). As
altered, the instruction allowed the jury to convict if it found the defendant intended to deprive
the owner of the property permanently or removed (rather than intended to remove) it from the
owner's possession for so extended a period of time that she would be deprived of a major
portion of the enjoyment or value of the property. The elimination of the intent requirement in
the instruction was prejudicial error under the Chapman standard.
Case Name: People v. Juhasz , District: 3 DCA , Case #: C068288
Opinion Date: 10/3/2013 , DAR #: 13307
Case Holding:
A defendant's refusal of drug treatment in a prior case cannot be used to exclude him from a
Proposition 36 program in a different case. Appellant pled no contest to possession of
methamphetamine with a provision he would be granted probation and referred for drug
treatment under Proposition 36. Based on two past unsuccessful attempts at treatment in prior
cases, the probation department deemed appellant ineligible for Proposition 36 treatment, and
the trial court found him unamenable to drug treatment in the present case. At sentencing, the
court denied his request to be reinstated in the Proposition 36 program. Held: Reversed.
Although appellant's deletions from Proposition 36 programs in the two earlier cases were
refusals of drug treatment under Penal Code section 1210.1, subdivision (b)(4), those failures do
not operate as refusals in future cases. Any other interpretation would be at odds with the
intent of Proposition 36, which anticipated that such offenders may falter in their recovery and
thus gives offenders several chances at probation before imposing jail time. There was also no
clear and convincing evidence appellant was presently unamenable to any form of drug
treatment, as is required for exclusion under section 1210.1, subdivision (b)(5).
Courtesy of CCAP, visit Matthew on Google for more recent changes ion the criminal law in
California.
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Matthew J. Ruff, Esq.
Toll Free at 1-877-617-4485
20 Years Experience in Criminal Law
