Undoubtedly wishing to see Beethoven rolling over in his grave on his birthday. Nature’s sanitary engineer prototype. They like to buzz my dogs, who could be good bird dogs if they could just jump a little higher.
Today we explore these tidbits:
A person who serves time in jail gets credit for that time, assuming it’s attibutable to the reason the person is in jail. [Gary Editorial Note: prior to 1972 in California, a defendant was not entitled to credit for time spent in custody prior to conviction. Penal Code section 2900.5 was enacted in 1971. It was originally to be applied prospectively only, but that was held to violate equal protection guarantees. Keep in mind that California operated under the Indeterminate Sentence Law prior to 1977. Defendants were simply sentenced “to the term prescribed by law,” which usually involved a range, such as six months to life, or one to fourteen years. The Adult Authority was vested with the obligation to decide when a prisoner should be released. Section 2900.5 has been amended many times. Of interest to me is that the 1976 version contained language in subdivision (c) that appeared to prevent judges from considering the amount of presentence credit when deciding what term should be imposed: “The credits provided by this section shall not be considered in establishing or fixing any condition of probation, parole date, or term of imprisonment; but such credits shall be applied to any such condition of probation, parole date, or term of imprisonment no later than one week after it has been established or fixed.” Alas, that restriction is nowhere to be found today.]
A judge erred in not instructing on a lesser included offense;
At the initial stage of the proceedings, the judge should not have relied on the simple fact of conviction to determine that a defendant was not eligible for recall of the sentence under section 1172.6, because the conviction did not establish ineligibility as a matter of law;
A judge erred in instructing a jury that a pocketknife could be an inherently dangerous weapon.
Case: 000036
We direct the trial court to correct the custody credits in the resentencing minute order and the abstract of judgment, but we otherwise affirm.
First Holding: Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct. [See] Penal Code section 2900.5, subd. (d); People v. Buckhalter (2001) 26 Cal.4th 20, 29-30, 37.
Second Holding: When a defendant is imprisoned and later resentenced, “the sentencing court must recalculate and credit against the modified sentence all actual time the defendant has already served, whether in jail or prison, and whether before or since he was originally committed and delivered to prison custody.” [See] People v. Buckhalter (2001) 26 Cal.4th 20, 29.
Case: 000037
The trial court should have instructed the jury on the lesser included offense of attempted voluntary manslaughter based on imperfect self-defense as to the attempted murder of defendant’s wife. We reverse the judgment on that count and remand the matter to the trial court for a new trial. We also conclude the prosecutor committed prejudicial misconduct during the questioning of the witnesses and closing argument, warranting reversal of the judgment as to all counts.
First Holding: A trial court’s decision not to instruct on imperfect self-defense or defense of others is reviewed de novo. [See] People v. Simon (2016) 1 Cal.5th 98, 133.
Second Holding: The trial court has an independent obligation to instruct the jury on all lesser included offenses the evidence warrants, even against the defense’s wishes. Such instructions are required when, but only when, a jury could reasonably conclude that the defendant committed the lesser offense but not the greater one. [See] People v. Hardy (2018) 5 Cal.5th 56, 98.
Third Holding: In assessing whether substantial evidence exists in this context, a court determines only its bare legal sufficiency, not its weight. [See] People v. Breverman (1998) 19 Cal.4th 142, 161, disapproved on another ground in People v. Schuller (2023) 15 Cal.5th 237, 254-260.
Fourth Holding: Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense. [See] People v. Simon (2016) 1 Cal.5th 98, 133.
Fifth Holding: Doubts about whether an instruction is warranted should be resolved in favor of the accused. [See] People v. Tufunga (1999) 21 Cal.4th 935, 944.
Sixth Holding: When confronted with an objection, it is the trial court’s obligation to rule. Advising examining counsel to simply “move on “ is not a ruling. Such inaction runs the risk of confusing the jury and emboldening the objectionable conduct, and leaves the appellate court with an incomplete record. [See] Reid v. Google (2010) 50 Cal.4th 512, 524, 532.
Seventh Holding: [Gary’s introductory comment:] There was extensive discussion regarding improper comment by the prosecution on the defendant’s exercise of his right to remain silent. [See] Griffin v. California (1965) 380 U.S. 609; ; Doyle v. Ohio (1976) 426 U.S. 610; People v. Galloway (1979) 100 Cal.App.3d 551 [The Doyle rule is not limited to a defendant’s failure to talk with police. It applies to questions such as “No one? You told no one?” not just to silence to police officers after receiving Miranda warnings; Doyle has also been broadly interpreted to apply to any testimony about a defendant’s desire or request for counsel. (People v. Fabert (1982) 127 Cal.App.3d 604, 609; People v. Bryant, Smith & Wheeler (2014) 60 Cal.4th 335, 387.).
Eighth Holding: In Griffin v. California (1965) 380 U.S. 609, the high court held that the prosecutor may neither comment, directly or indirectly, on a defendant’s failure to testify or urge the jury to infer guilt from such silence. (People v. Hardy (1992) 2 Cal.4th 86, 153–154.) Griffin/Doyle error requires reversal unless we can conclude it was harmless beyond a reasonable doubt. (United States v. Hasting (1983) 461 U.S. 499, 507–509; Hardy, supra, 2 Cal.4th at p. 154.) “[W]e ask whether, absent the prosecutor’s reference to [defendant’s] failure to testify, is it clear beyond a reasonable doubt that the jury would have returned a verdict of guilty?” (Hardy, at p. 154.)
Ninth Holding: “[I]ndirect, brief and mild references to a defendant’s failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.” (People v. Hovey (1988) 44 Cal.3d 543, 572.) But the error is prejudicial if “the evidence against defendant is less than overwhelming” and “the improper comment touched ‘a live nerve in the [appellant’s] defense.’ ” (Galloway [People v. Galloway (1979) 100 Cal.App.3d 551], supra, 100 Cal.App.3d at p. 560.) It is prejudicial if it “ ‘serve[d] to fill an evidentiary gap in the prosecution’s case.’ ” (People v. Medina (1974) 41 Cal.App.3d 438, 463.) We are instructed to ask “ ‘whether the comment actually or implicitly invited the jury to infer guilt from silence.’ ” (Hardy, at p. 159.)
Tenth Holding: The harmful impact of a Doyle error has been ameliorated in some cases when the trial court gave a strong curative instruction. (People v. Galloway (1979) 100 Cal.App.3d 551, at p. 560.)
Eleventh Holding: Griffin v. California (1965) 380 U.S. 609 prohibits the prosecution from “so much as suggesting to the jury that it may view the defendant’s [silence] as evidence of guilt.” (People v. Guzman (2000) 80 Cal.App.4th 1282, 1287; see also People v. Lindsey (1988) 205 Cal.App.3d 112, 116–117 [error to suggest to jury that there was no reason defense counsel would have let the defendant sit in jail if counsel had exculpatory evidence to present].)
Case: 000038
Because the record of conviction does not conclusively establish the defendant is ineligible for resentencing under Penal Code section 1172.6 on his manslaughter conviction as a matter of law, the court reversed and remanded the matter for the court to issue an order to show cause and conduct an evidentiary hearing on that count.
First Holding: A defendant who pleaded no contest to manslaughter is eligible for resentencing if the charging document permitted the prosecution to pursue a conviction under the felony-murder rule, the natural and probable consequences doctrine, or any other imputed malice theory. [See] People v. Gaillard (2024) 99 Cal.App.5th 1206, 1211; Penal Code section 1172.6, subdivision (a).
Second Holding: Absent exceptional circumstances, appellate courts generally do not take judicial notice of evidence not presented to the trial court. [See] Bullock v. City of Antioch (2022) 78 Cal.App.5th 407, 417, fn. 7.
Case: 000039
Although harmless error, the trial court erred in instructing the jury on the legally invalid theory that a pocketknife could be an inherently deadly weapon.
First Holding: The evidence did not support instructing the jury on inherently deadly weapons because a knife is not inherently deadly as a matter of law. Only a few items that are designed to be used as deadly weapons are inherently deadly. The court should not have given the instruction because, as with most weapons, the knife was not, as a matter of law, inherently deadly and inclusion of an instruction on inherently deadly weapons was unnecessary. [See] People v. Aledamat (2019) 8 Cal.5th 1.
Second Holding: Though the court erred when it instructed the jury that it could find the pocketknife an inherently dangerous weapon, this factual error was harmless because the record does not affirmatively demonstrate a reasonable probability that the jury found the defendant guilty solely on the unsupported theory. [See] People v. Rivera (2019) 7 Cal.5th 306, 329.