Latest 4 Cases: Facebook, Inc. v. Superior Court of the City and County of San Francisco (Communications Law), California v. Cervantes ...

Is Consent Overrated?

SHERRY F. COLB

Cornell law professor Sherry F. Colb argues that while consent is an important and necessary condition of many activities in which adults engage, it does not necessarily follow that consent is a sufficient condition as well. Colb describes some circumstances in which the apparent consent of the parties does not make the result desirable or good.

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Facebook, Inc. v. Superior Court of the City and County of San Francisco

Docket: A157143(First Appellate District)

Opinion Date: March 9, 2020

Judge: Burns

Areas of Law: Communications Law, Criminal Law, Internet Law

The defendants were indicted on murder, weapons, and gang-related charges stemming from a drive-by shooting. Each defendant served a subpoena duces tecum on one or more social media providers (Facebook, Instagram, and Twitter, collectively “Providers”), seeking public and private communications from the murder victim’s and a prosecution witness’s accounts. Providers repeatedly moved to quash the subpoenas on the ground that the federal Stored Communications Act (18 U.S.C. 2701) barred them from disclosing the communications without user consent. The trial court concluded that the Act must yield to an accused’s due process and confrontation rights, denied the motions to quash, and ordered Providers to produce the victim’s and witness’s private communications for in camera review. The court of appeal granted mandamus relief, concluding the trial court abused its discretion by not adequately exploring other factors, particularly options for obtaining materials from other sources, before issuing its order. The trial court focused on defendants’ justification for seeking the private communications and the record does not support the requisite finding of good cause for the production of the private communications for in camera review.

California v. Cervantes

Docket: E070980(Fourth Appellate District)

Opinion Date: March 9, 2020

Judge: Slough

Areas of Law: Constitutional Law, Criminal Law

Omar Jesus Cervantes appealed his conviction for second degree murder, arguing it had to be reversed under the recently enacted Senate Bill No. 1437 (SB 1437) and the changes the new law made to the natural and probable consequences doctrine. SB 1437 amended the murder statutes to modify the definition of murder and created a new provision, section 1170.95, which established procedures for eligible defendants to seek resentencing under the new definition. Cervantes also raised multiple challenges to his sentence. After review, the Court of Appeal concluded Cervantes could not raise his SB 1437 claim on direct appeal, but had to follow the procedures in section 1170.95 and petition the superior court for relief. “To clear up confusion about the particulars of his sentence,” the Court directed the trial court to correct the July 20, 2018 minute order to reflect that it did not impose a gang enhancement on the murder count or a section 1203.1c presentence confinement fee. The trial court was also directed to correct the abstract of judgment to reflect that it did not impose a registration requirement. In all other respects, the Court of Appeal affirmed judgment.

People v. Garcia

Docket: H043870(Sixth Appellate District)

Opinion Date: March 9, 2020

Judge: Danner

Areas of Law: Criminal Law

A jury found Garcia and Austin guilty of first-degree murder and other crimes for a 2012 home invasion robbery and murder. On appeal, they challenged the sufficiency of the evidence, evidentiary rulings and jury instructions, the constitutionality of one crime of conviction, the effectiveness of their attorneys, and aspects of their sentences. The court of appeal affirmed Garcia’s conviction but vacated his sentence; his one-year prior prison term enhancement must be stricken under current law and the trial court must determine whether Garcia was afforded sufficient opportunity to make a record for his eventual youth offender parole hearing. For Austin, the court vacated a special circumstance finding and his sentence and remanded so that the prosecution may elect whether to retry Austin on the special circumstance allegation. The jury was given a legally invalid theory—that the jury could find true the special circumstance allegation if it concluded that Austin did an act that “caused” the victim’s death (by handing duct tape to a co-perpetrator) even if Austin did not personally kill him. At Austin’s resentencing, the trial court shall strike the 10-year gang enhancement imposed under Penal Code section 186.22 (b)(1)(C) and must decide whether it will exercise its discretion to strike the prior conviction enhancements under Penal Code section 667(a). The court rejected all of Austin’s other claims of error.

People v. Graves

Docket: A152603(First Appellate District)

Opinion Date: March 9, 2020

Judge: Peter J. Siggins

Areas of Law: Criminal Law

Jane, age 15, and Lucy were browsing in a clothing store. Graves came up behind Jane, put his hand on her buttock and “squeeze[d] tight.” Graves then entered the store’s changing room, removed his shirt, and stepped out of the changing room multiple times, bare-chested, and made eye contact with Jane. Store employees called security. Graves had previous convictions for annoying or molesting minors and sexual battery of minors. Graves was convicted of one felony count of annoying or molesting a child under 18 and one felony count of lewd acts involving a child of 14 or 15 years by a person at least 10 years older with two prior felony convictions and three prior prison terms. The court of appeal affirmed the convictions but remanded for resentencing. The court rejected arguments that the trial court erred by admitting evidence of his past offenses; erroneously instructed the jury that the testimony of a single witness could suffice to convict him and that Jane’s out-of-court report of the assault to her friend could be used to establish that the assault occurred; and was sua sponte obliged to give a unanimity instruction. Under Senate Bill No. 136, effective January 2020, the sentencing enhancements imposed for prior prison terms must be stricken.