Riverside County Case Alert – June 2, 2021

June 2, 2021
🔑 Key Cases

1. CASC – Eyewitness Identification: Certainty Doesn’t Correlate to Accuracy

2. 1st DCA – Serial Shooting Searches and Custodial Questioning Upheld

3. 2nd DCA – Co-Defendant Counsel’s Misconduct Can Implicate Due Process

+ 5 Additional Case Summaries

1. P. v. Lemkcke (CASC, S250108, Orange) The California Supreme Court revisited Justice Lui’s concurring opinion in P. v. Sánchez (2016) 63 Cal.4th 411, this time around agreeing that CALCRIM No. 315—which identifies 15 factors a jury should use to evaluate the accuracy of eyewitness identifications—“has the potential to mislead jurors” because it allows consideration of the witness’s confidence as an indicator of reliability. The Court acknowledged a “near unanimity in the empirical research” that confidence expressions track poorly with accuracy, and that jurors overvalue them. The Court reviewed reforms in other states, the Legislature’s recent passage of SB 923 (see PC § 859.7), and findings in 2008 by the California Commission on the Fair Administration of Justice. The Court ultimately decided that the Judicial Council is best suited to reform the CALCRIM instruction. “Accordingly, in the exercise of our supervisory powers, we direct our trial courts to omit the certainty factor from CALCRIM No. 315 until the Judicial Council has the opportunity to consider how the language might be better worded to minimize juror confusion on this point [unless the instruction is requested by the defendant].” The Court ultimately rejected defendant’s due process claim and affirmed his convictions, where he was afforded ample expert testimony challenging the identification, and where his counsel otherwise vigorously attacked it.

2. P. v. Tousant (1st, A156044, Alameda) Defendant perpetrated two shootings as revenge for his son’s gang-related murder. Police were investigating one of the scenes when they found defendant’s car across the street. The DCA upheld the car’s probable cause search because it was a rental, it was parked haphazardly, it was unfamiliar to neighbors, and it was close to shell casings and an abandoned gun magazine. Inside, police properly seized a cell phone. A 15 day delay to get a search warrant for the phone was not unreasonable, where defendant didn’t seek its return or suffer in his possessory interest. However, an initial warrantless search of the phone—revealing its phone number and defendant’s identity—was illegally incorporated into the affidavit. The court upheld the warrant under the independent source doctrine because the affidavit was otherwise sufficient, and police would still have sought the warrant. The DCA affirmed the admission of defendant’s non-Mirandized statements while he was in custody on unrelated firearm charges, responsive to questions seeking information about his son’s unsolved murder. (These statements apparently exposed his motive.) Distinguishing P. v. Anthony (2019) 32 Cal.App.5th 1102, here the detective had no reason to know about defendant’s involvement in the recent shootings. “[He] did not ask Tousant any questions about the firearms charges, and his questions about Tousant’s son’s murder were not likely elicit incriminating responses bearing on those charges.”

3. P. v. Thomas (2nd, B298946, Los Angeles) Defendant was convicted of felony murder, with a sentencing conducted just after SB 1437 became effective. The DCA held that because the legislation is only a post-judgment remedy, defendant was entitled to relief only by a new trial motion. (The DCA remanded for a new trial on the murder.) The DCA disagreed that the accomplice liability instructions were defective because defendant allegedly simultaneously testified to exonerate himself and to implicate a co-defendant (only the latter requiring corroboration). The DCA disagreed that the prosecutor shifted the burden in closing, because in context the remarks merely clarified to an improper defense invitation to speculate about hypothetical forensic testing. The DCA rejected defendant’s claim that a co-defendant’s attorney improperly shifted culpability to him by a variety of acts of misconduct. The DCA held that “in the context of a multiple defendant criminal trial brought by the state, misconduct by a codefendant’s counsel constitutes state action for purposes of the Fourteenth Amendment.” Likening the standard on review to that misconduct involving prosecutors, however, the court found nothing that violated due process. Finally, the DCA affirmed the trial court’s denial of a severance motion and affirmed its rejection of defense lay testimony concerning gang territorial lines, based on the tenuous foundation that the witness lived in L.A. and saw graffiti.

Other Case Summaries

P. v. Castillo (2nd, B303413, Los Angeles) Defendant appealed the denial of his motion to vacate a 1989 drug sales conviction based on adverse immigration consequences. (PC § 1473.7.) Because the review is independent (P. v. Vivar (2021) Cal.5th [CaseALERT, May 5, 2021]) but not de novo, the DCA was bound to accept the trial court’s finding that defendant was not credible where he disclaimed any ideation of an immigration consequence, despite a significant criminal history and his employ of a dozen aliases. Applying the factors in Lee v. U.S. (2017) 137 S.Ct. 1958 and P. v. Martinez (2013) 57 Cal.4th 555 the court confirmed that at the time of the plea defendant’s concern was not deportation, but the fear of a substantial incarceration.

Schumb v. Super. Ct. (6th, H048532, Santa Clara) Defendant is being prosecuted for a conspiracy involving the issuance of concealed firearm permits in return for sheriff campaign donations. Defendant sought to recuse the DA’s office because he was friends with the elected DA and previously fundraised for him. The DCA reversed the trial court’s denial. Defendant’s long friendship with the DA (and his chief assistant) established the “reasonable probability that [the DA’s] office may not exercise its discretionary function in an evenhanded manner.” The DCA further found that defendant was unlikely to receive fair treatment based on the “strong incentive … to aggressively prosecute [defendant] for two purposes, both to distance [the elected DA] from any taint associated with reelection money raised by [defendant], and to avoid the appearance of favoritism toward a friend and campaign contributor.” Finding some parallels to P. v. Choi (2000) 80 Cal.App.4th 476 the DCA concluded that the entire DA’s office must be recused, particularly where the DA (and his chief assistant) continued to involve themselves in the prosecution, despite the need for an ethical wall.

Jensen v. Super. Ct. (6th, H048548, Santa Clara) This is a companion writ to Schumb, supra. Defendant (a police lieutenant) sought recusal on the additional ground that the DA’s office leaked grand jury transcripts. The DCA affirmed that the allegation was speculative and affirmed the denial of the recusal motion.

P. v. Graham (2nd, B300167, Los Angeles) The DCA held that a request for mental health diversion (PC § 1001.36) is untimely when it is made for the first time on appeal. The court disagreed with P. v. Curry (2021) 62 Cal.App.5th 314 (holding that mental health diversion is available prior to sentencing), instead finding a legislative intent that such diversion remains available up to verdict.

P. v. Aleo (5th, F080005, Stanislaus) Adopting the reasoning in P. v. Drayton (2020) 47 Cal.App.5th 965, the DCA held that defendant made a prima facie showing of his entitlement to relief under PC § 1170.95 (SB 1437) because his factual allegations could not be refuted by reference to the record as a matter of law.