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Name: People v. Brooks (2024) 99 Cal.App.5th 323
Case #: D080776
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 01/30/2024

Where the victim in a domestic violence case did not take the stand but asserted a valid Fifth Amendment privilege through counsel, the trial court did not err in instructing the jury with CALCRIM No. 320 regarding her failure to testify. A jury found defendant guilty of both inflicting corporal injury on a domestic partner, R.J., and committing assault by means likely to produce great bodily injury. R.J. did not testify at trial but the court instructed the jury that R.J. had asserted her Fifth Amendment privilege against self-incrimination. On appeal, defendant argued that because R.J. was not called and…

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Name: People v. Diaz (2023) 97 Cal.App.5th 1172
Case #: B319020
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 12/18/2023

Case remanded for trial court to consider whether People v. Tirado (2022) 12 Cal.5th 688 and Senate Bill No. 81 impact defendant’s sentence because the court was not aware of these legal developments at the time of sentencing. Diaz was convicted of first degree murder based on evidence that he shot and killed a street vendor for selling tacos on a street claimed by another taco street vendor. He raised a number of issues on appeal, including that, at sentencing, no one involved knew about two new and significant developments affecting sentencing: the Supreme Court decision in Tirado and SB…

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Name: People v. Burns (2023) 95 Cal.App.5th 862
Case #: D080779
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/21/2023

Petitioner could not use Penal Code section 1172.6 proceedings to resurrect a jury instruction claim (based on former CALCRIM No. 400) that should have been raised in his 2013 direct appeal. In 2010, Burns was convicted of a first degree murder based on his participation with a codefendant in a gang-related shooting. The jury in his case was instructed using a former and now-disapproved version of CALCRIM No. 400. At the time of Burns’s direct appeal, opinions warned that the “equally guilty” language of CALCRIM No. 400 might mislead jurors in some circumstances by suggesting that once they decide the…

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Name: People v. Perez-Robles (2023) 95 Cal.App.5th 222
Case #: C095414
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 09/06/2023
Subsequent History: Opn. modified 9/18/2023

Trial court prejudicially erred by not instructing the jury on misdemeanor sexual battery as a lesser included offense of sexual battery by restraint. Defendant, a massage therapist, was convicted of sex offenses involving six clients, including two counts of sexual battery while the victim was unlawfully restrained (Pen. Code, § 243.4(a)). On appeal, he argued that the evidence of restraint was at least questionable, and the trial court thus had a duty to instruct on a lesser included offense that lacked the element of restraint—misdemeanor sexual battery (§ 243.4(e)). Held: Reversed in part and remanded. The People acknowledged that misdemeanor…

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Name: People v. Schuller (2023) 15 Cal.5th 237
Case #: S272237
Court: CA Supreme Court
Opinion Date: 08/17/2023

Opinion by: Justice Groban (unanimous decision). Justice Liu filed a concurring opinion, in which Justice Evans concurred.

When a defendant presents substantial evidence of imperfect self-defense, the trial court’s failure to instruct on that theory precludes the jury from making a factual finding essential to prove the malice element of murder, and results in federal constitutional error. Schuller was convicted of first degree murder and found sane at the time of the killing. On appeal he argued the trial court’s refusal to instruct on imperfect self-defense was federal constitutional error. The Court of Appeal agreed the trial court erred in failing…

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Name: People v. Zemek (2023) 93 Cal.App.5th 313
Case #: D080917
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/11/2023

Trial court’s ruling requiring defendant’s husband and sister to attend her trial via livestreaming on the Internet during the COVID-19 pandemic did not violate her right to a public trial. During the COVID-19 pandemic, Zemek was convicted of first degree murder, elder abuse, and theft offenses. She raised a number of issues on appeal, including that she was denied her right to a public trial. The trial court had closed the physical courtroom to the public based on COVID-19 emergency orders and protocols, but the trial was livestreamed on the Internet. The court denied defense counsel’s multiple requests for Zemek’s…

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Name: People v. Ocegueda (2023) 92 Cal.App.5th 548
Case #: G061077
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 06/14/2023

CALCRIM Nos. 521, 522, and 570, taken together, adequately state the law as to how provocation can reduce first degree murder to second degree murder, and reduce murder to voluntary manslaughter. Appellant and the victim agreed to fight. When the victim’s friend intervened, appellant got angry and left to get two knives. He found the victim and slashed him across the chest. After the victim escaped, appellant continued to follow him, then stabbed the victim twice, resulting in the victim’s death. A jury convicted appellant of first degree murder. He appealed, arguing that the trial court misinstructed the jury on…

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Name: People v. Odell (2023) 92 Cal.App.5th 307
Case #: B319448
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 06/05/2023

Penal Code section 29800(a)(1), possession of a firearm by a felon, does not violate the Second Amendment. Johnson initiated a verbal and physical altercation with Odell at a motel where they stayed as separate guests. Johnson ultimately obeyed the motel manager’s order to return to his room. Odell retrieved a gun from his car and followed Johnson to his room. Video footage captured images of the men grappling. The fight continued away from the camera’s lens, and it was during that time Odell shot Johnson to death. A jury convicted Odell of possession of a firearm by a felon and…

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Name: People v. Myles (2023) 89 Cal.App.5th 711
Case #: D079825
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 03/23/2023

In a trial for burglary, when instructing on whether the defendant had the specific intent to commit theft, the jury must be instructed that the defendant had to act with the specific intent to permanently deprive the owner of possession. Myles, who was homeless, broke a window and entered an unoccupied house. Inside, he drank a juice box, ate ice cream, and charged the battery in the owner’s vehicle. Months later, defendant tried to break into the house again. The only issue at his trial for burglary and attempted burglary was whether he had the specific intent to commit theft…

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Name: People v. Wilson (2023) 89 Cal.App.5th 1006
Case #: D080920
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 03/29/2023

Prosecutor’s imprecise use of the word “presume” while arguing the meaning of CALCRIM No. 1191 (addressing the use of uncharged sex offenses) did not amount to misconduct. While referencing evidence of uncharged offenses during closing argument, the prosecutor argued, “[n]ow you get jury instruction 1191, and what 1191 says is if there’s evidence presented that the defendant touched another child in a lewd and lascivious way which you got the instructions for, then you can presume that he committed the crimes here.” Trial counsel did not object, but rather moved for a mistrial during jury deliberations. Wilson appealed, arguing the…

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