Thursday, September 1, 2016

Cal Supremes depublish People v. Aleman (2/2)

The orders from the California Supreme Court's August 31 conference have been released, and the court denied review and depublished People v. Aleman (2/2). The defendants in Aleman were convicted of first degree murder and had a host of issues rejected by the Court of Appeal. The order does not specify what motivated the Supreme Court to depublish the opinion on its own motion.

[NOTE: I put the blog on hold for a few months because I've just been too busy with work. I will continue to post as time allows.]

Tuesday, April 26, 2016

1/4 agrees with 4/3 that People Chiu is retroactive, but sets a lower bar for getting relief

            Earlier this month 4/3 held that People v. Chiu (Cal. SC) is retroactive to defendants whose cases where final when that case was decided. (In re Lopez.) Chiu, of course, held that a first degree murder verdict may not be based on the natural and probable consequences (NPC) doctrine, and since that decision a slew of defendants have had their convictions reduced to second degree murder on direct appeal.
            Less than two week after Lopez was decided, a second published decision, In re Johnson (1/4), agreed that a petitioner whose case was final when Chiu came down was entitled to relief. This time, though, the Attorney General did not dispute that Chiu was retroactive (Id. at p. 9, fn. 2), and the argument was over whether the defendant could demonstrate prejudice. (Id. at p. 11.) The Attorney General argued the People v. Mutch (Cal. SC) standard, which requires the defendant show the conviction was invalid as a matter of law, should apply. (Id. at pp. 9-10.) This is the standard the Lopez court applied when it granted relief. (Lopez, supra, at pp. 9-11.) Mr. Johnson, however, argued the Chapman v. California (U.S. SC) harmless beyond a reasonable doubt standard applies, which is the standard the Courts of Appeal used in In re Lucero (3rd Dist.) and In re Hansen (4/3) when defendants sought relief based on retroactive application of the California Supreme Court’s decision in People v. Chun. Chun reconsidered the scope of the felony murder rule in a way which made certain defendants ineligible for a second degree murder conviction. (See Johnson, supra, at pp. 10-11.)
            Johnson, reaching the opposite conclusion as Lopez, saw Chiu as representing a change in the law rather than merely a recognition of what the law already was (see Lopez, supra, at pp. 9-10), and for this reason found Lucero and Hansen more applicable than Mutch. (Johnson, supra, at p. 12.) The Johnson court also saw the error as going to the reliability of the conviction and the question of the defendant’s guilt or innocence for first degree murder, whereas Mutch was only concerned with whether there was substantial evidence for the conviction. (Id. at p. 12.) For these reasons, Johnson explained, when a defendant is convicted of first degree murder and it cannot be determined whether or not the jury relied on an NPC theory, the conviction must be reversed. (Id. at pp. 13-14.)
            Johnson therefore both reinforces Lopez’s holding that Chiu is retroactive while creating a split about how to determine whether a habeas defendant is entitled to relief. Johnson lowers the bar for relief significantly from where Lopez set it, but will almost certainly not be the last word on the issue as many defendants remain who are potentially affected by the Chiu decision.

Tuesday, April 19, 2016

1/4 holds Pen. Code section 198.5's self-defense presumption may apply to unlawful residents who kill an intruder

          Penal Code section 198.5 creates a presumption that a person who uses deadly force against an intruder while insider his residence acted in lawful self-defense. In People v. Grays (1/4), a defendant who killed an intruder inside the apartment he had been illegally subletting for five months argued he was entitled to an instruction based on section 198.5. (Id. at pp. 6-7.) But can the word “residence” be read to apply to an apartment the defendant is illegally subletting?

            The Court of Appeal held that it can, as the test focuses on whether the occupant has a “reasonable expectation of protection against unwanted intruders." (Id. at p. 8.) The court rejected the Attorney General’s argument that references to “homeowners” in the legislative history suggest the statute should be read more restrictively, saying the Legislators were using the word “homeowner” as a shorthand for “resident.” (Id. at p. 10.) I agree with the court that other aspects of the legislative history support a broader reading than the Attorney General wanted, but I’d wager the inconsistent language is more likely the result of sloppiness rather than shorthand, seeing as “homeowner” is not any shorter than “resident” and has a distinct legal meaning.

            The refusal to give an instruction doesn’t get Mr. Gray’s a new trial, though, as the court found the error harmless. This was in part because the standard self-defense instructions, which the jury did receive, already said that the prosecution had to prove beyond a reasonable doubt that the killing was not justified. (Id. at p. 14.)

Monday, April 18, 2016

2/1 again finds instructional error in a kill zone attempted murder case

        When and how to apply the “kill zone” theory of attempted murder, which prosecutors frequently argue on when a defendant fires multiple shots into a crowd of people, has caused some disagreement among the Courts of Appeal. A key disagreement is whether the defendant needs to intend to kill the bystanders or whether he need only recognize that a natural and probable consequence of the shooting is that anyone in the “zone of danger” would or could die. Cases such as People v. McCloud and Peoplev. Sek out of 2/1 say the evidence must show the defendant intended to kill the bystanders as a means of ensuring the death of a primary target. On the other side, 4/2 held in  People v.Winfield and People v. Canizales that a kill zone attempted murder only requires proof the defendant understood it was likely the bystanders would or could die. At the moment McCloud is the only citable case in the group, as the Supreme Court is considering Canizales and has issued grant and hold orders in the subsequent kill zone cases.

While last week’s decision in People v. Cardona (2/1) will almost certainly join the pile of review granted cases, it nevertheless provides an interesting application of 2/1’s understanding of the kill zone rule. 

When 2/1 held in McCloud that there was insufficient evidence to support a kill zone instruction, the court pointed out that there was neither a primary target whom the defendant was trying to kill, nor did the defendant fire enough shots to kill everyone in the vicinity. What is special about Cardona is that there is both a primary target and the defendant fired five shots for which he was charged with just one count of attempted murder (along with the murder of his intended victim), yet the Court of Appeal nevertheless found the evidence was insufficient to support a kill zone instruction. (Id. at pp. 7-8.)

The reason was that the evidence which supposedly supported a kill zone instruction merely showed the defendant shot at his intended victim in self-defense (though not justifiably), and that the attempted murder victim was struck unintentionally when one of the bullets missed its intended target. (Id. at p. 7.) That is, the kill zone attempted murder was really a a “transferred intent” attempted murder, though transferred intent does not apply to that crime. (Peoplev. Bland (Cal. SC).) Cardona, then, provides a great example of a case where the 2/1’s and 4/2’s varied understandings of what constitutes a kill zone leads to different results, since it seems clear the jury in this case could have at least found the defendant appreciated the risk to the unintended victim when he fired those five shots.