Nic Cocis is a criminal defense attorney
at the Law Office of Nic Cocis & Associates. The Office represents
individuals in Criminal Cases, including DUI and Juvenile Matters, who
have been arrested in the cities of Temecula, Murrieta, Wildomar, Menifee,
Perris, Hemet, Lake Elsinore, Banning, Corona or Riverside, CA.
The following case summaries are for educational purposes only and have
been prepared by the Criminal Law Section of the California State Bar,
in cooperation with Central California Appellate Program (CCAP).
People v. Pirali
Opinion Date: 7/17/2013
Probation conditions restricting defendant's access to Internet and
possession of sexually explicit material required modification to add
an express knowledge component. Pirali pled no contest to possession of child pornography (Penal Code,
§ 311.11). As terms of his probation, Pirali's Internet access
was restricted to that approved by his probation officer. In addition,
he was ordered not to purchase or possess sexually explicit material as
defined by the probation officer. He challenged the probation conditions
on appeal as overbroad and unconstitutionally vague. Held: Affirmed as
modified. Probation terms restricting or prohibiting the use of a computer
or access to the Internet should be narrowly tailored to avoid being unconstitutionally
overbroad. However, limitations on access to Internet use, as opposed
to blanket prohibitions, have been approved. Here, Pirali was not subjected
to a blanket prohibition against accessing the Internet—his access
was restricted to that approved by his probation officer. This type of
restriction is not overbroad. However, the condition did not require that
Pirali knowingly access the Internet. Thus, it must be modified to add
an express scienter requirement, to avoid a vagueness challenge. With
respect to the possession or purchase of sexually explicit material, the
court also modified this term to provide that such possession/purchase
by Pirali was prohibited having been informed by his probation officer
the material is pornographic or sexually explicit. The court declined
to adopt the Third District's approach to such questions in
People v. Patel (2011) 196 Cal.App.4th 956. In Patel the court stated it would no longer
decide such scienter challenges to probation terms, but would construe
probation conditions to contain a knowledge requirement. The court held
the modification of probation conditions to render them constitutional
is required by
In re Sheena K. (2007) 40 Cal.4th 875.
People v. Barclay
Opinion Date: 7/11/2013
Juvenile adjudication for felony vehicular manslaughter constitutes a "prior
violation" within the meaning of Vehicle Code section 23550.5, subdivision
(a)(3) and may be used to elevate a charge of driving under the influence
to a felony. Barclay drove his car off the rode and into a tree, suffering injuries.
Blood drawn at the hospital reflected Barclay had a BAC of 0.15 percent.
He was charged with driving under the influence of alcohol (Vehicle Code,
§ 23152, subds. (a) and (b)). The information charged a prior felony
vehicular manslaughter Barclay suffered as a juvenile to elevate the current
offenses to felonies pursuant to section 23550.5, subdivision (a)(3).
Barclay waived a jury trial and submitted to the court the question whether
his juvenile prior could be used to elevate the present offenses. After
the court found the prior could be used, Barclay pled no contest to driving
under the influence, admitting his BAC was 0.15 percent or higher. He
appealed the use of his juvenile prior. Held: Affirmed. A section 23152
conviction may be elevated to a felony where the defendant has a "prior
violation" of an offense enumerated in section 23550.5, subdivision
(a), within 10 years of the current offense. One of the enumerated offenses
is a prior violation of Penal Code section 192, subdivision (c)(1), that
was punished as a felony. Although juvenile adjudications are not "convictions"
(Welfare & Institutions Code, § 203), a minor may be adjudged
a ward where he or she "violates" any criminal law (Welfare
& Institutions Code, § 602, subd. (a)). Section 23550.5, subdivision
(a)(3) uses the word "violation," not "conviction."
This demonstrates a legislative intent to include felony juvenile adjudications
within the ambit of section 23550.5, subdivision (a)(3). Here, Barclay
admitted a felony violation of section 192, subdivision (c)(1). This offense
occurred three years before the present case. Allowing both adult convictions
and juvenile adjudications to elevate a section 23152 offense to a felony
effectuates the strong policy against repeat offenders reflected in section 23550.5.
People v. Johnson
Opinion Date: 7/18/2013
Conspiracy to actively participate in a criminal street gang qualifies
as a crime. Appellants were charged and convicted of conspiracy to commit felony assault,
robbery, murder, and gang participation, in addition to other offenses.
The appellate court found that conspiracy to actively participate in a
criminal street gang did not qualify as a crime. Reversed as to this finding.
The Supreme Count observed that there is nothing in the plain language
of either the conspiracy statute (Penal Code, § 182) or the active
gang participation statute (Penal Code, § 186.22, subdivision (a))
that supports the appellate court's finding. Concluding that conspiracy
in the context of the gang participation statute is a viable crime, the
court observed that this is consistent with the purpose of section 186.22
to seek eradication of criminal activity by street gangs. Penal Code section
182.5, which created a new form of conspiracy that applies to gang-related
crimes, does not reflect a legislative intent to preclude the use of section
186.22, subdivision (a) as an object of a traditional conspiracy under
section 182. The presumption of the Wharton rule has no application here
because the immediate harm that results from the gang participation offense
is not limited to its participants, a criminal street gang involves a
network of participants, and it cannot be said that the offense is not
likely to generate additional criminal agreements. In this case, the appellants'
agreement to commit various gang shootings, coupled with their participation
in and knowledge of the gang's activities, constituted an agreement
to further, promote or assist the felonious act of shooting rival gang
members. The conspiracy was completed once an overt act toward the shooting
People v. Mestas
Opinion Date: 7/22/2013
In a child molestation case, the trial court did not abuse its discretion
under Evidence Code section 782 by refusing to hold an evidentiary hearing
on some of the proffered evidence of the victims' sexual history. Appellant was charged with molesting his girlfriend's younger sisters.
Prior to trial, he filed a motion pursuant to section 782 to admit evidence
of the victims' sexual history, accompanied by a declaration detailing
the intended evidence. Section 782 provides that if the court finds the
offer of proof sufficient it shall order a hearing out of the presence
of the jury at which the complaining witness may be questioned. If at
the conclusion of the hearing the court finds the evidence relevant and
not inadmissible pursuant to Evidence Code section 352, it may make an
order stating what evidence may be introduced and the nature of the questions
permitted. Here, the court permitted a hearing as to only one of the victims
and as to only specified allegations. At the hearing, after the victim
stated she could not remember the alleged incidents, the court ruled that
it would not allow introduction of past sexual incidents. The appellate
court found that the trial court did not abuse its discretion by refusing
to hold an evidentiary hearing on all the proffered evidence because there
was no showing that any of the alleged prior incidents were sufficiently
similar to the conduct in the instant offense and thus the evidence was
not sufficiently probative of the victims' credibility to require
a hearing. Not admitting some evidence of a victim's sexual history
under section 782 does not violate a defendant's fair trial rights
because the court may properly exclude all such evidence under Evidence
Code section 1103. The court also found no ineffective assistance of counsel
for failure to investigate further because there was no showing of prejudice.
Appellant's claims as to what further investigation may have produced
were merely speculative.