Use of an analogy, in jury selection and closing, of a dog left in a hot car drinking a blue Slurpee does not violate the Racial Justice Act.

People v. Gomez, 4^th Dist., Div.1 (02/04/2026)

A jury convicted Gomez of taking or driving a stolen vehicle, among other related charges.  The trial court sentenced him to  six years.  The middle term of 3 years for driving a stolen vehicle with a qualifying prior, doubled because of a prior strike.  Gomez appealed.

On appeal, Gomez argues two issues.  One, the prosecutor violated the Racial Justice Act (RJA) in jury selection and closing.  Second, that Gomez never admitted, nor did the plaintiff prove, a qualifying prior.  The panel rejects the former, but agrees with the latter, remanding for a retrial on priors.

During jury selection, the plaintiff used an analogy of a dog left in a hot car with a blue Slurpee in the center console.  Plaintiff illustrated circumstantial evidence by posing the hypothetical of the car’s owner returning and finding the Slurpee half empty and the dog’s tongue bright blue.  During closing, plaintiff analogized the dog hypo to the evidence introduced in trial regarding Gomez and the stolen vehicle.  Defense counsel did not object.

On appeal, the panel finds the issue forfeited via trial counsel's failure to object.  But it goes on to address the issue anyway, finding no violation.  Although animal analogies carry the possibility of being found as substitutes for racial slurs, the panel finds this one benign.

On the second issue, the panel agrees that Gomez admitted no qualifying prior and plaintiff offered no evidence of such a prior.  On remand, the trial court is to conduct a court trial on the issue of Gomez’s priors.  

 Juvenile Judge exceeded authority when he ordered a handgun ban on a kid whose wardship was not based on a statutorily enumerated crime whose violation triggers the ban.

In re J.C., 1^st Dist., Div.3 (02/06/2026)

Master J.C. was made a ward of the court based on his pleas to attempted grand theft and brandishing an imitation gun.  He was put on supervision with a term that he not own or possess a gun before he turned 30.  J.C. appealed, arguing the gun ban was unauthorized by law.

The appellate court agrees, and reverses.

The panel’s job here is straightforward.  Penal Code section 417.4(a)(1) enumerated crimes where a juvenile, if found a ward based upon, is prohibited from owning or possessing a gun until they turn 30.  The trial court, instead of starting with the language of the statute, ignores the text and substitutes its interpretation of the “legislature’s concerns,” resulting in a ruling the ban is applicable here.  The panel resets the issue, starts with the statute’s language (the first step in interpretating a statute) and finds it unambiguous.  It reverses and remands for the trial court to strike the ban.

 Defendant’s admissions during a Perkins operation that used overt law enforcement to “stimulate” conversations between a Miranda-invoking suspect and undercovers violates Miranda.

People v. Zapata, 4^th Dist., Div. 1 (02/10/2026)*

 

Police suspected Zapata of murder.  While Zapata was in jail on unrelated charges, police put him in a cell with two undercover cops posing as fellow inmates.  The undercovers tried to get Zapata to talk about the murder for about an hour, but Zapata kept schtum.  A policeman monitoring the undercovers’ attempts decided more pressure was needed.  The policeman pulled Zapata from the cell announcing he was going to be part of a lineup in front of a witness of the murder.  The lineup was fake.  Afterwards the policeman employed a lie ruse telling Zapata the witness identified him as the killer. 

Zapata invoked his right to an attorney.  So, the policeman escorted Zapata back to the cell with the undercovers and announced Zapata was being charged with murder.  After being placed back in the cell, the two undercovers, having heard their colleague’s announcement, began to press Zapata about the killing.  Zapata ultimately admitted being the killer.

Prior to trial, Zapata moved to exclude his admission as a violation of the Miranda rule.  The trial court denied Zapata’s motion, the admission was admitted at trial, and the jury convicted him of second-degree murder.  Zapata appealed.

This panel reverses and remands, finding the admission of a Miranda violation, prejudicial, and not harmless under Chapman. 

The panel begins by examining the facts and holding in Illinois v. Perkins (1990) 496 U.S. 292.  There an undercover cop was placed in jail with a suspect, who had not invoked his right to a lawyer.  The undercover engaged with the suspect, who made incriminating admissions.  The issue in Perkins was whether the undercover was required to advise the suspect of his Miranda rights prior to asking the suspect questions likely to elicit incriminating statements.  The US Supremes answered, “no.” 

After Perkins was decided, California intermediate appellate courts have enlarged Perkins to cases where a suspect has invoked his right to an attorney prior to being placed with interrogating undercovers.  People v. Orozco (2019) 32  C.A.4^th 802; People v. Felix (2024) 100 C.A.4^th 439.  Zapata made two arguments.  First, these cases, supra, were wrongly decided.  Second, Zapata’s facts are distinguishable due to the amount of overt police pressure exerted in tandem with the undercovers.

This panel punts on the first argument (the issue is currently before the Cal Supremes) but agrees with Zapata on the second issue.  Noting the gravamen of the Miranda line of cases is government coercion, presumedly absent when the pressure is being applied by forces unknown to the suspect to be government agents, the panel finds the operation here included copious amounts of overt police coercion.  It notes Zapata was with the undercovers for an hour and resisted their interrogations.  Making no progress, the uniformed police decided to “add” to the pressure to talk by conducting a fake lineup, telling a couple rather large lies, and pacing back and forth in view of Zapata.  Because Zapata had invoked his right to counsel, a Miranda violation was found when this pantomime was conducted sans a lawyer for Zapata. 

An examination of the remaining evidence at trial leads the panel to find that Zapata’s wrongly introduced admissions were prejudicial and not harmless. 

H/T Joseph Doyle

 Responding to a Jury’s Question about Another Juror’s Ability to Deliberate in English by Sending a Judicial Assistant into the Deliberation Room to Address the Note and Never Informing Trial Counsel of the Note was Reversible Error.

People v. Heaps, 2^nd Dist., Div.1, (02/02/2026)

Heaps was a UCLA gynecological oncologist on trial for sex crimes allegedly committed during medical examinations.  After receiving nearly two months of evidence and argument, the jury began its deliberations.  Per the judge’s instructions, the jury communicated via written notes.  Via notes, the jury requested readback of several witnesses’ testimony over several days.  The judge, after informing and consulting trial counsel, ordered the readbacks be provided as requested.

Nearly two weeks into deliberations, an alternate replaced one of the original jurors.  Not long after, the jury sent a note to the judge that the new juror may not speak English sufficiently to participate in the deliberations or understand the difference between guilty and not guilty.  Trial counsel was not informed of this note.  The jury then, by note, requested more readbacks and clarifications on certain legal definitions. Trial counsel was made aware of these notes and had an opportunity to be heard prior to the judge ordering the readbacks.  

Soon after the last readback, the jury reached a verdict.  It convicted Heaps of several offenses and acquitted him of others.  Heaps was sentenced to 11 years in prison.

Defense counsel subsequently learned of the note.  Because the record did not contain the note, or the judge's actions vis-a-vis the note, a hearing was conducted to settle the record.  Heaps subpoenaed the trial judge, but the fellow judge conducting the hearing, upon urging by the prosecutor, quashed it.  Instead, the trial judge submitted a vague declaration, continually referring to “the record,” without specifying to what he was referring.  He did admit he never informed trial counsel about the note and asked his judicial assistant to enter the deliberation room ex parte and talk to the jurors about whether they could continue to deliberate.  The judicial assistant did testify, providing answers qualified with plenty of “cannot recall exactly,” and “pretty sure.”  He did admit he spoke to the jury twice about the note, and that he spoke to one of the jurors in Spanish. 

With this “settled record,” Heaps appealed.  To no one’s surprise, the panel reverses and remands for a new trial.  “[T]he trial court should not entertain communications from the jury except in open court, with prior notification to counsel.”  People v. Hogan (1982) 31 Cal.3d 815.  Responding to a jury’s question is a critical stage of the proceedings to which a defendant is entitled to the assistance of counsel.  Because that right was blatantly violated here, prejudice is presumed unless shown harmless beyond a reasonable doubt. And here it wasn’t.

The right to a jury trial includes the right to jurors proficient enough in English to deliberate.  As the judicial assistant’s testimony was so qualified with “pretty sures,” the record does not reflect whether the issue of the juror's English proficiency was addressed, resolved, or if it was, how or by whom.  The upshot is the case will be tried again.

 

 

 Being a Current LPS Conservatee does not Make a Person Incompetent to Give Testimony.

Esparza v. Superior Ct., 4^th Dist., Division 2 (02/05/2026)

 

Esparza was charged with kidnapping his fiancée, L.S.  He subpoenaed L.S. to testify in his defense at his preliminary hearing.  The Public Guardian moved to quash the subpoena, saying L.S. was incompetent to testify under Evid. C. §701 because she had recently been placed under an LPS conservatorship due to being “gravely disabled.”

The trial court quashed the subpoena, finding L.S.’s current LPS conservatorship means she is incompetent to give testimony.  Esparza petitions for a writ of mandate.

The panel grants the petition and issues a mandate for the trial court to deny the motion to quash and to determine L.S.’s competence to testify under the criteria in Evid. C. §701.

Confronting an issue of first impression, the panel examines first the LPS statutes, which state that a person may not be presumed to be incompetent because they have been evaluated or treated for a mental health disorder.  An examination of other types of competence show that an LPS conservatorship does not constitute of finding of incompetence to stand trial (Jackson v. Superior Ct. (2017) 4 Cal.5^th 96), competence to waive the right to a jury trial (Conservatorship of C.O. (2021) C.A.5^th 894), or competence to withhold consent to medical treatment (Jackson v. Superior Ct. (2017) 4 Cal.5^th 96).   Just as the standards for LPS conservatorship differ from the competence standards for these other rights, the panel finds competence to testify also differs.

The Public Guardian has a backup argument that L.S.’s testimony at the preliminary hearing would be irrelevant, meaning it would not be relevant for determining whether L.S. was kidnapped by Esparza.  This argument is easily and quickly rejected by the panel, pointing out that L.S.'s consent (or not) is an element of the charged offense.  

The upshot is that an LPS conservatorship does not have any application to the determination of competence to give testimony.  The rules on competence to give testimony are to be applied to every potential witness.  

 “Weed Crumbs” Scattered on a Car’s Rear Floorboard do not Constitute Probable Cause of a Cal. Health & Safety Code 11362.3 Violation.”

 

Sellers v. Superior Court (Cal. Supremes, 01/29/2026)

 

Sellers was a passenger in a motorcar.  The police pulled the car over after the driver failed to come to a complete stop at a crosswalk.  Three cops approached the car, shined flashlights inside the car and began grilling Sellers and the driver.  A records check revealed nothing of concern.

One cop saw a rolling tray on the backseat and “weed crumbs,” on the rear floor.  The cops then described the driver as sweating and nervous.  They ordered the two out and searched the car.  An unregistered pistol was found near where Seller’s had been sitting.

Sellers was charged with unlawful possession of a gun.  He moved to suppress the evidence of the gun on the basis the search violated his Fourth Amendment rights.  The trial court denied Seller’s motion on the basis the “weed crumbs” constituted probable cause of a violation of  H&S §11362.3(a)(4) which prohibits the possession of marijuana that is “not in a closed package or container,” while driving or riding in a car.  Sellers appealed.

A split panel of the Third District affirmed, finding the crumbs were contraband being illegally transported as they were not in a “closed package or container.”  The Third hedged by alternately finding that even if the crumbs were not contraband, the driver’s nervousness, along with the rolling tray, constituted probable cause.  The dissenting judge analogized the weed crumbs to a small amount of beer spilled on a floorboard from a broken, (near) empty beer bottle.  Seller petitioned for review and the Cal Supremes granted same.

The Supremes reverse and remand.  The unanimous Court largely adopts the reasoning of the Third District judge’s dissent while adding its own gloss with a review of similar cases.  In re Randy C. (2024) 101 C.A.5^th 933 (a blunt on the passenger’s lap is an “open container”); P v. Hall (2020) 57 C.A.5^th 946 (loose marijuana on center console not a violation absent a “useable amount); P v. Thomas (1966) 246 C.A.2d 104 (fragments of marijuana in a shirt pocket not illegal).

In the end, the Cal Supremes hold that a violation of H&S §11362.3(a)(4) requires, at a minimum, marijuana be of a usable quantity, in a usable condition, and readily accessible to an occupant.  In this case, the crumbs were not in a useable condition nor were they readily accessible to Sellers.  The driver “nervousness,” falls on deaf judicial ears, as the Court quotes the trial court, “[t]here officers who are armed approaching a car would make most people nervous.” 

Seller’s Fourth Amendment rights having been violated, the case is remanded for a determination of the proper remedy.

 

 

 

 Penal Code Section 1385(c) does not apply to the alternate sentencing scheme of the “three strikes law."

 

People v. Grandberry (2^nd Dist., Div. 6, 01/22/2026)

 

In 2001, Grandberry was convicted of two person-present burglaries and found to have three prior strikes, three prior serious felonies, and one prior prison term.  After an initial appeal, he ended up with a sentence of 41-life (25-life for the burglaries, three 5-year enhancements for the prior serious felonies, and one year for the prison prior).

Fast forward to 2024 and Grandberry is back in court for a full resentencing on a Penal Code section 1117.25 petition.  He requests the court to strike one five-year prior serious felony enhancement and the one-year prison prior.  He also asks for two of his prior strikes to be stricken, for a new sentence of 22 years. 

The trial court applies Penal Code section 1385(c) to Grandberry’s five-year serious felony enhancements and strikes all three, also striking the one-year prior prison enhancement.  The trial court analyzes Grandberry’s request that two of his strikes be stricken is analyzed, not under the enumerated circumstances in 1385(c) that the court is directed to use in deciding whether to strike a sentencing enhancement , but under the “spirit of the law,” factors in Romero and its progeny.  After applying the Romero test, the trial court finds Grandberry falls within the spirit of the three strikes law and declines to strike the strikes, imposing a new sentence of 25-life.  Grandberry appeals.

This appellate panel affirms.  Grandberry argues that section 1385(c), not the Romero factors, is the proper method for analyzing whether his strikes should be stricken.  He argues two avenues as to why this should be so, [1] section 1385(c) is properly interpreted as applying to requests to strike strikes upon resentencing, and [2] even if not, the ambiguity of the statute merits the court applying the rule of lenity his favor. 

The panel’s response to both questions is based on the legal distinction between “enhancements,” and “alternative sentencing scheme.”  California’s three-strikes law has long been held to be an alternative sentencing scheme, not an enhancement.  Hence, the panel says 1385(c) concerns only sentence enhancements and does not apply to a trial court’s analysis of whether to grant a defendant request to reject the alternative sentencing scheme (strike a strike).

And since the language of 1385(c), viewed within the universe of clear precedent, is not ambiguous, the rule of lenity has no application.