Riverside County Case Alert – August 5, 2021

July 30 – August 5, 2021
🔑 Key Cases

1. LA App. Div. – DUIs are excluded from misdemeanor diversion

2. 1/4 – Error, but not prejudicial, for prosecutor to tell jurors they had to report if any juror refused to deliberate or follow law; and error to remove accomplice language from CALCRIM No. 3149 when victim encouraged confrontation.

3. 1/3 – 2 Counts of criminal threats, one for husband one for wife, appropriate where defendant directly threatened husband and while speaking to wife threatened to harm husband.

+ 2 Additional Case Summaries

1. P. v. Superior Court (Espeso) (LA App. Div., BS 175803, Torrance)“[D]riving under the influence is not an offense which is eligible for misdemeanor diversion.”  Any tension between the prohibition on diversion for DUI offenses in Vehicle Code section 23640 and the misdemeanor diversion statute, Penal Code section 1001.95, must be resolved by both statutes being read to together so as to give effect if possible to all provisions with a presumption against a repeal by implication.  While the general canon of construction against repeal by implication may be overcome by a clear intent to repeal or render inoperative the conflicting law, the legislative history does not reveal a clear intent.  First, enacting the bill without a DUI exclusion does not show intent for diversion to be allowed because the Legislature did not specifically state it would be allowed or amend Vehicle Code section 23640 thus the Legislature could have intended to preclude diversion.  Second, the absence of a specific exclusion for DUIs as was present in a similar pilot program also does not show an unequivocal intent to allow diversion for DUIs as the Legislature could have realized no specific exclusion was needed given section 23640.  Similarly, Governor’s signing statement raising concern that DUIs weren’t excluded, and pending bill in Legislature to specifically bar misdemeanor DUI diversion, do not show the intent of Legislature when the bill was adopted.  [NOTE: The Appellate Division of the Riverside Superior Court, certified for publication its own decision reaching a contrary conclusion—with a dissent—but that opinion has yet to be posted by the Reporter of Decisions.  The Office of the District Attorney of Riverside County is seeking to have the Riverside case certified to the Court of Appeal.]

2. P v. Morales (1st Dist., Div. 4, A157644, Contra Costa)(1) Prosecutor erred by asserting in closing argument that jurors had to report if any juror refused to deliberate or follow the law, as a similar jury instruction was previously rejected by our Supreme Court as both unnecessary and as creating a risk of intruding in the jury’s deliberative process, but this prosecutorial error was not prejudicial such that defense counsel was not ineffective for failing to object.  (2)  Trial court erred by removing accomplice exception language from CALCRIM No. 3149 for personal and intentional firearm discharge causing death enhancement (Pen. Code, § 12022.53, subd. (d)) as it eliminated the need for the jury to determine if the victim was a person other than an accomplice where the victim was part of the group who requested defendant join them in confronting another group, thus victim could have been an accomplice to unlawful fighting (Pen. Code, § 415), but since the trial court stayed the enhancement the Court of Appeal reversed it without a remand for retrial in the interests of judicial economy.

3. Ayala v. Superior Court (1st Dist., Div. 3, A161936, San Mateo)  Two counts of committing criminal threats (Pen. Code, § 422), one as to husband one as to wife, was supported where defendant directly threatened husband and separately in presence of wife threatened to harm husband without threatening to directly harm wife, as the statute extends to fear created by threats to the safety of immediate family.

Other Case Summaries

In re Parks (2nd Dist., Div. 1, B296998, Los Angeles)  A renewed debate over expert opinions under modern standards does not establish false evidence warranting relief by way of habeas, even where all experts agree original prosecution trial expert was wrong on one issue—whether a flashover occurred during the house fire set by the petitioner.  As that issue was not material to the ultimate opinion of experts as to the cause of the fire.

In re Noah S. (1st Dist., Div. 3, A158575, Contra Costa)  Attempted robbery falls with Welfare and Institutions Code section 707, subdivision (b) when it is committed against and great bodily injury is inflicted upon an elderly or disabled person as defined in Penal Code section 1203.09