The Court of Appeal held that the admission of the alleged victim’s conditional examination violated appellant’s Sixth Amendment confrontation rights because the prosecution failed to establish it exercised due diligence in securing the alleged victim’s presence at trial. In reaching this conclusion, the Court noted that there was no evidence before the trial court (other than the prosecution’s unsubstantiated claim) that the alleged victim, who was living in Guatemala, had no plans of returning to California and, more importantly, the record did not establish that the prosecutor made any efforts to procure the witness’s attendance at trial. The Court further held that the error was prejudicial to the battery conviction where respondent could not point to any other evidence to support that conviction.

The Court of Appeal reversed appellant’s involuntary manslaughter conviction (Pen. Code, § 192, subd. (b)) where the trial court erred in admitting extensive hearsay evidence describing the decedent’s attack and failed to provide a limiting instruction, despite correctly ruling in limine that only statements describing the decedent’s past or present pain (and not how he was injured and what happened) could be admitted for their truth under Evidence Code sections 1250 and 1251. The Court further held that the error was not harmless where the primary disputed issue at trial was the cause of the decedent’s death and where the prosecution heavily relied on the hearsay evidence at trial.

The Court of Appeal vacated appellants’ first-degree murder convictions and remanded the case in light of Senate Bill 775, which, among other things, provided that a defendant whose conviction has not yet become final may challenge on direct appeal the validity of a murder conviction under Penal Code sections 188 and 189, as amended by Senate Bill No. 1437, without first petitioning the superior court. Here, the trial court’s felony murder instructions did not include the elements required to prove felony murder under Penal Code section 189 as amended by SB 1437 because those amendment had not yet been enacted. The Court also vacated the jury’s gang-related findings and convictions, on the basis that both the instructional error resulting from Assembly Bill No. 333’s amendments to Penal Code section 186.22 and the admission of significant amounts of inadmissible hearsay and testimonial hearsay in violation of Crawford v. Washington (2004) 541 U.S. 36 and People v. Sanchez (2016) 63 Cal.4th 665 constituted error that prejudiced appellants. The Court further held that the Legislature’s amendment of Penal Code section 1170 in Senate Bill No. 567, required the Court to vacate the upper term sentence of one of the appellants. The Court also agreed that one of the cases should be remanded for the trial court to exercise its recently authorized discretion to strike or dismiss a firearm enhancement. Finally, the Court held that two stayed enhancements (Pen. Code, §§ 12022 & 186.22) must be vacated/stricken, and that the 10-year enhancement under Penal Code section 186.22 was improper.  

In a case in which appellant was convicted of numerous sexual crimes, the Court of Appeal held that evidence supporting appellant’s defense – that he instigated a CPS investigation into the victim’s sexual abuse during the time the victim alleged appellant was sexually abusing her – was improperly excluded. The Court noted that the CPS investigation was “potentially powerful evidence” in support of the defense that the victim fabricated the abuse because a jury could reasonably believe that a person who was sexually abusing a child would be unlikely to encourage a CPS investigation. Also, since the victim reported sexual abuse during this investigation (not by appellant), the evidence showed the victim was willing and able to report abuse, potentially lending greater significance to the victim’s failure to report appellant’s alleged sexual abuse during subsequent CPS investigations.

[Published Opinion] In a case in which appellant was charged with committing two unrelated murders (the Oakland and Hayward murders), the Court of Appeal found that the trial court abused its discretion in denying appellant’s motion for a mistrial after the jury was allowed to hear inadmissible evidence regarding the Oakland murder in the Hayward murder case.  In reaching this decision, the Court found that the trial court’s admonishment was inadequate to cure the prejudice, especially considering that the success of appellant’s defense depended largely on the jury accepting his credibility when he testified —credibility that was surely damaged by evidence this was not the first time he shot and killed an unarmed man for no apparent reason.

In a case in which appellant was convicted of, among other sex offenses, annoying or molesting a child under Penal Code section 647.6, subdivision (c)(2), the Court of Appeal found that insufficient evidence established an essential element of the crime – that appellant’s conduct was both objectively and subjectively irritating or disturbing. Additionally, the Court found trial counsel rendered ineffective assistance of counsel by failing to object to inadmissible and prejudicial testimony on several significant topics. Thus, the court reversed the judgment of conviction as to all counts.

At appellant’s probation revocation hearing, the trial court erred in admitting hearsay testimony without good cause. The basis for the revocation was appellant’s parole agent testifying that appellant had tested positive for drug use, but the People never presented any documentation confirming drug usage, nor was the parole agent’s testimony based on any documentation. Under such circumstances, the Court of Appeal found a showing of good cause was required under People v. Arreola (1994) 7 Cal.4th 1144 before appellant’s right of confrontation could be dispensed with and the hearsay testimony admitted.

The trial court erred in finding a defense expert was unqualified to testify regarding the psychological testing of appellant for “susceptibility to false confession.” The proposed expert was a practicing psychologist whose testimony, the A.G. argued, did not demonstrate an expertise in police interrogation techniques. The Court of Appeal determined that there is no requirement that a witness be a “researcher or nationally recognized authority” to testify as an expert on a given subject. Further, the court found that neither the trial court nor respondent explained how an ability to interpret the results of the Gudjonsson Suggestibility Scales test depends on an expertise in police interrogation tactics. And, in any event, the testimony of the witness showed he did have some knowledge of interrogation techniques.

In a case where the defendant was found guilty of receiving a large capacity magazine and possession of a firearm by a felon, after police found a firearm in a car in which the defendant was the front seat passenger, the trial court committed prejudicial error by: (1) excluding a hearsay declaration against penal interest made by the driver of the car that the gun was his, and (2) admitting evidence of a prior incident in which the defendant was found with firearms in his car, on the basis that it proved defendant’s knowledge.

The Court of Appeal held that the defendant’s conviction for rape by force (Penal Code § 261, subd. (a)(2)) must be stayed pursuant to section 654. The defendant was also convicted of assault with intent to commit rape during a burglary (PC § 220, subd. (b)), and, while the defendant assaulted the victim during the first degree burglary, the Court determined the assault and rape were the same single act. In order to ensure compliance with section 1326, the Court also conditionally reversed the trial court’s decision not to release the victim’s confidential medical records, which the defense subpoenaed and the trial court reviewed in camera. The original documents were purged and the Court found that a proper record had not been made during the in camera review.

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