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Name: People v. Rouse
Case #: H034647
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 02/28/2012
Subsequent History: 5/23/12 Review Granted (S201479)

The convictions of forcible lewd acts, violations of Penal Code section 288, subdivision (b)(1), were supported by evidence of duress. Duress involves the use of direct or implied threat of force, violence, danger, hardship, or retribution sufficient to cause a reasonable person to do, or submit to, something that she would not otherwise do, or submit to. The circumstances, including the age of the child and relationship to the defendant may be considered. Here one of the victims, age 10, was left with the defendant for an additional two weeks after a visit to his house, and he told her…

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Name: People v. Vang
Case #: S184212
Court: CA Supreme Court
District CalSup
Opinion Date: 10/31/2011

Hypothetical questions posed to an expert must be based on the evidence; the questioner is not required to "disguise" the fact that such a question is based on the case evidence. Appellant and his codefendants were convicted of assault by means of force likely to inflict great bodily injury. The jury also found a gang enhancement true (Pen. Code, §186.22, subd. (b)(1)). Relying on People v. Killebrew (2002) 103 Cal.App.4th 644, the Court of Appeal found the prosecutor is prohibited from asking hypothetical questions using facts which closely track the case evidence. The Supreme Court disagreed, finding a hypothetical question…

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Name: People v. Vangelder
Case #: D059012
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/01/2011
Subsequent History: Review granted 10/19/11: S195423

In a DUI trial, expert testimony may be admissible as relevant in both "per se DUI" and generic DUI offenses to challenge the validity of the design of the breath test device, its operation, and sampling method. At trial for driving under the influence, defendant attempted to introduce the testimony of an expert challenging the reliability of breath test devices to rebut the presumption of intoxication. The trial court disallowed the testimony stating that the breath test result could not be rebutted in any fashion, for either the "per se" or generic DUI offenses. The appellate court here disagreed, finding…

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Name: People v. Hunt
Case #: E050775
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 05/20/2011

A gang expert's testimony that any crime by a gang member is almost always for the benefit of the gang does not violate due process. The gang expert testified that intimidation and respect are everything to a gang. He was given a "mirror-image" hypothetical with the facts of the crime involving a robbery in which one of the men admitted that he committed the robbery of a Del Taco in order to pay his parking tickets. The expert gave the opinion that everything they do, even if personally motivated, would benefit the gang because it reaps the benefits of building…

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Name: People v. Jaska
Case #: D057204
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 04/27/2011

The question of whether multiple takings from a single victim are a single offense committed pursuant to one intention, one general impulse, and one plan is a question of fact under People v. Bailey (1961) 55 Cal.2d 514, 519. The case involved grand theft by embezzlement over several years. One count involved withdrawals of large amounts of money from a petty cash fund. A second count involved unauthorized monthly lease payments for her automobile. Two other counts included many monthly payments for her personal American Express and Visa credit card bills. These were different ways of abusing the position of…

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Name: People v. Dejourney
Case #: D055585
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 02/17/2011

Under Evidence Code section 1108 prior similar sexual misconduct may be introduced to show a defendant's propensity to commit offenses of the same type, subject to a weighing of the evidence under Evidence Code section 352. A jury convicted appellant of forcible rape and kidnapping. At trial, the victim testified that she suffers from cerebral palsy and has physical, developmental, and cognitive or mental disability. On the date in question, after obtaining money from an ATM, she was approached by appellant who put his arm around her, and walked her to various locations at a pace she could not control.…

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Name: People v. Cortes
Case #: H032799
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 01/11/2011

Penal Code sections 25, 28, and 29 do not preclude expert testimony that allows the jury to infer that a defendant actually did not premeditate, deliberate, or act with malice. All the statutes prohibit is expert testimony on the ultimate issue of whether or not the defendant actually acted with the requisite mental state. The court reversed a first degree murder conviction because the trial court prejudicially erred by unduly restricting the testimony of the defense psychiatric expert. Appellant stabbed and killed a person at a party who tried to get him and his friends to leave.…

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Name: People v. Cabrera
Case #: G042390
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 11/30/2010
Subsequent History: rev. granted 3/23/11 (S189414)

A gang expert can rely on hearsay such as police reports and departmental reports and notices to support his opinion as to the primary activity of a street gang. Appellant was convicted of carjacking, street terrorism, and other offenses. The jury also found true a gang enhancement. At trial, evidence was presented that two men, one holding a gun, demanded the victim give them his money and car. Castillo, the gang expert, testified as to the Highland Street gang and its primary activities, possession of narcotics for sale and auto theft. Although Castillo did not…

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Name: People v. Hill
Case #: A117787
Court: CA Court of Appeal
District 1 DCA
Division: 5
Opinion Date: 01/13/2011

The gang expert was qualified to provide all the opinions admitted. Appellant shot two undercover officers and one of them died. He claimed that he did not know the victims were officers, and that he shot them in self-defense. At the murder trial, the gang expert testified that gang members don't like police and that shooting an officer sends a message to the greater community to instill fear. On appeal, appellant claimed there were several evidentiary errors with regard to the testimony of the prosecution's gang expert. First, he argued that while the officer had expertise…

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Name: People v. Vang
Case #: D054636
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 06/07/2010
Subsequent History: Rev. granted (S184212)

Hypothetical questions of an expert on the accused's intent and knowledge in committing the underlying assault exceeded the bounds of discretion and resulted in mere speculation on ultimate issues to be decided by the jury. Rules usually allow hypothetical questions of experts on ultimate issues. However, expert testimony on knowledge and intent, based on thinly veiled hypothetical questions, amounts to no more than an expression by the expert as to how the case should be decided. (Accord People v. Killebrew (2002) 103 Cal.App.4th 644, 647, 651.) The questions in this case placed the trial testimony in the context of changing…

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