October 2018 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 2017 update.
Challenging new scientific techniques. For a recent case discussing the reliability of the Abel test, see People v Fortin (2017) 12 CA5th 524 in §§1.21, 1.27.
Opinions of nontestifying experts. People v Sanchez (2016) 63 C4th 665 does not apply retroactively to cases that are already final. See In re Ruedas (2018) 23 CA5th 777 in §§2.18, 4.53. For three recent cases discussing the application of Sanchez, see People v Veamatahau (2018) 24 CA5th 68 (expert’s use of information in database did not involve case-specific pills seized from defendant); People v Espinoza (2018) 23 CA5th 317 (Ident-A-Drug is “published compilation” within meaning of Evid C §1340); People v Mooring (2017) 15 CA5th 928 (same) in §§2.18, 5.41. The Confrontation Clause issue may be forfeited if counsel fails to make a specific objection. See People v Blessett (2018) 22 CA5th 903 in §§2.18, 5.41.
Implied consent. In People v Ling (2017) 15 CA5th Supp 1, the court of appeal stated that “trial courts must acknowledge that every driving under the influence prosecution may be subject to the holding of [Missouri v McNeely (2013) 569 US 141, 133 S Ct 1552] to the extent that every blood draw challenged as a violation of the Fourth Amendment must now be supported by evidence of a warrant or an exception to the warrant requirement.” The court then found that under the totality of circumstances no consent had been given. 15 CA5th Supp at 10. See §§3.9, 5.91. The failure of law enforcement to advise the motorist of the consequences of refusing to submit to a test does not necessarily make the consent coerced. See People v Balov (2018) 23 CA5th 696 in §3.9. Exigency justifying a nonconsensual blood draw without a warrant must be determined on a case-by-case basis under the totality of the circumstances. See People v Meza (2018) 23 CA5th 604 in §3.9.
Alcohol-monitoring devices. For a recent case discussing how a court may make continuous alcohol monitoring a condition of release, see People v Buell (2017) 16 CA5th 682 in §3.54A.
DNA collection. In People v Buza (2018) 4 C5th 658, the California Supreme Court held that the DNA collection requirement of the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (Proposition 69) was constitutional when applied to an individual who was validly arrested on probable cause to hold for a serious offense and was required to swab his or her cheek as part of a routine booking procedure. The court noted that it “express[ed] no view on the constitutionality of the DNA Act as it applies to other classes of arrestees.” 4 C5th at 665. See §§5.6, 5.90, 5.93.
Computer printout presumption. The Evid C §1552(a) presumption establishes only that the computer’s print function is working properly. See People v Rodriguez (2017) 16 CA5th 355 in §7.39.
Search and seizure. For a recent case discussing a valid warrantless, suspicionless search of a parolee’s cell phone, see U.S. v Johnson (9th Cir 2017) 875 F3d 1265 in §7.54.
Searching cell phone location data. In Carpenter v U.S. (2018) ___ US ___, 138 S Ct 2206, the U.S. Supreme Court held that a warrant supported by probable cause must be obtained before acquiring records of cell site location information (CSLI). The court noted that it did not “express a view on matters not before us: real-time CSLI or ‘tower dumps’ (a download of information on all the devices that connected to a particular cell site during a particular interval).” 138 S Ct at 2220. See §§9.12–9.13, 9.16.