October 2019 Update
The current update includes changes throughout this publication that reflect recent developments in case law, legislation, court rules, and jury instructions. Summarized below are some of the more important developments included in this update since publication of the 2018 update.
Challenging an expert witness. For a recent case discussing how an expert witness may not give a statistical opinion on whether a witness is telling the truth, see People v Julian (2019) 34 CA5th 878 in §1.16.
Opinions of an expert witness. The California Supreme Court has granted review in People v Veamatahau (review granted Sept. 12, 2018, S249872; superseded opinion at 24 CA5th 68) to determine whether the prosecution’s expert witness related inadmissible case-specific hearsay to the jury by using a drug database to identify the chemical composition of the drug defendant possessed. The court has also granted review in People v Perez (review granted July 18, 2018, S248739; superseded opinion at 22 CA5th 201) to determine whether a defendant’s failure to object at trial, before People v Sanchez (2016) 63 C4th 665 was decided, forfeited his claim that a gang expert’s testimony related case-specific hearsay in violation of the Confrontation Clause. See also People v Blessett (review granted Aug. 8, 2018, S249250; superseded opinion at 22 CA5th 903) (Confrontation Clause issue may be forfeited if counsel fails to make specific objection). See §§2.18, 4.53.
Implied consent. In Mitchell v Wisconsin (2019) ___ US ___, 139 S Ct 2525, the plurality of the court held that exigent circumstances may allow for a blood draw from an unconscious driver. The California Supreme Court has granted review in People v Gutierrez (review granted Jan. 2, 2019, S252532; superseded opinion at 27 CA5th 1155) (if defendant freely and voluntarily chose blood test over breath test, warrant is not needed to draw suspect’s blood) and People v Balov (review granted Sept. 12, 2018, S249708; superseded opinion at 23 CA5th 696) (failure of law enforcement to advise motorist of consequences of refusing to submit to test does not necessarily make consent coerced). See §3.9.
A probationer who agrees to a specific search condition prohibiting him or her from refusing a chemical test of blood, breath, or urine, must accept a warrantless seizure of a blood sample. People v Cruz (2019) 34 CA5th 764. The court of appeal noted that the California Supreme Court has not determined whether a general probation search condition allows for a warrantless, nonconsensual blood draw. 34 CA5th at 772. See §3.9.
Horizontal gaze nystagmus (HGN). An officer with adequate training and experience in performing the HGN test may testify, without additional expert testimony, as to the significance of a defendant’s performance on the test. See People v Randolph (2018) 28 CA5th 602 in §§3.13, 3.21, 3.32.
Usable quantity. In People v Polk (2019) 36 CA5th 340, the court found that a usable quantity of methamphetamine was established by three separate pieces of paper. See §4.51.
Collection of DNA. For a recent case discussing how the prosecution failed to prove that the defendant was validly arrested, see People v Marquez (2019) 31 CA5th 402 in §§5.6, 5.90.
Expungement of DNA sample from database. In In re C.B. (2018) 6 C5th 118, the California Supreme Court held that Pen C §299 does not authorize the expungement of a juvenile’s DNA record on the ground that a felony was reduced to a misdemeanor under Proposition 47. The retention of a juvenile’s DNA sample also does not violate equal protection. 6 C5th at 133. See §5.93.
Public and private searches. In Facebook, Inc. v Superior Court (Hunter) (2018) 4 C5th 1245, the California Supreme Court found that communications sent to numerous recipients are not public. In City & County of San Francisco v HomeAway.com, Inc. (2018) 21 CA5th 1116, the court of appeal found that an administrative subpoena to compel disclosure of customer records did not include a request for electronic communications. See §7.33.
Search warrant requirement. For a recent case discussing how an electronic search probation condition was not overbroad, see People v Guzman (2018) 23 CA5th 53 in §§7.54, 9.10, 9.17.
Discovery of GPS data. Requests for business records production from cell phone carriers may be modeled on applications used to apply for 18 USC §2703(d) court orders. See U.S. v Korte (9th Cir 2019) 918 F3d 750 in §9.21.