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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. 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. 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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Name: People v. Doane
Case #: A153709
Court: CA Court of Appeal
District 1 DCA
Division: 1
Opinion Date: 07/22/2021

Conviction reversed where prosecutor misstated the law by telling the jury that "innocence" as used in the instruction on circumstantial evidence (CALCRIM No. 224) refers to actual innocence, not guilt of a lesser included offense. Defendant Doane lost control of his truck and collided head-on with a vehicle, killing the driver. He fled on foot and was apprehended the following day. A jury convicted him of vehicular manslaughter with gross negligence, and a separate count of leaving the scene of an accident. He appealed. Held: Gross vehicular manslaughter conviction reversed. The jury was instructed under CALCRIM No. 224: "If…

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Name: People v. Collins
Case #: B304853
Court: CA Court of Appeal
District 2 DCA
Division: 2
Opinion Date: 06/10/2021

Prosecutor committed prejudicial error by telling the jury that the "fear" element of robbery is judged by an objective rather than subjective standard. Collins put store merchandise into his bag. When approached by the store's assistant manager, Collins extended an arm to push him but the manager stepped out of the way. Collins then pulled a knife out of his pocket and made it visible to the manager, who stepped further back and allowed Collins to leave without paying. He was convicted of second degree robbery (Pen. Code, § 211) with a weapon use enhancement (Pen. Code, §…

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Name: People v. Lemke
Case #: S250108
Court: CA Supreme Court
District CalSup
Opinion Date: 05/27/2021

Opinion By: Justice Groban (unanimous decision)
Although the witness certainty factor in the eyewitness identification instruction (CALCRIM No. 315) could be misleading, the instruction did not violate defendant's due process rights to a fair trial when considered in the context of the trial record as a whole. Defendants Lemke and Rudd were convicted of assault and robbery based almost entirely on the testimony of one witness who expressed certainty in her identification. At trial, Rudd's counsel moved to strike one of the factors listed in the eyewitness identification instruction (CALCRIM No. 315), which he argued improperly correlates a witness's…

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Name: People v. Stringer
Case #: D073877
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 11/07/2019

Jury instruction for aggravated kidnapping prejudicially allowed conviction under the legally invalid theory that defendant kidnapped to exact money or something valuable from the kidnap victim. A jury convicted Stringer of aggravated kidnapping (Pen. Code, § 209, subd. (a)) and other offenses. On appeal, Stringer argued the jury instructions given as to aggravated kidnapping permitted the jury to find him guilty of the offenses on a legally invalid basis. Held: Aggravated kidnapping convictions reversed. Section 209, subdivision (a) describes four types of aggravated kidnapping: (1) for ransom; (2) for reward; (3) to commit extortion; and (4) to exact from another…

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