California > Court of Appeal > 2020

California Courts of Appeal | Top Cases | February 2020

Page 1 of 15

King and Gardiner Farms v County of Kern

Fourth, we consider whether the EIR adequately described the currently feasible mitigation measures for the significant water supply impacts. As explained below, we conclude the discussion is inadequate and, therefore, the EIR fails to comply with CEQA. "[A]n EIR is required to provide the information needed to alert the public and the decision makers of the significant problems a project would create and to discuss currently feasible mitigation measures. " ( Sierra Club v. County of Fresno, supra , 6 Cal.5th at p. 523, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) To fulfill the EIR's informational role, the discussion of the mitigation measures must contain facts and analysis, not bare conclusions and opinions. ( Id. at p. 522, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) The level of detail CEQA requires in the EIR's discussion of facts and analysis of the mitigation measures depends on "whether the EIR includes enough detail ‘to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ " ( Sierra Club v. County of Fresno, supra , at p. 516, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) Here, the EIR provides no information about what applicants will (or might) do at the site covered by a permit to minimize the use of M&I water and maximize the reuse of produced water. Nothing is said about technologies and techniques for achieving the general goals relating to water use. The gaps in the information provided by the EIR are made more confounding by its statement about the "complex variables that fall outside the scope of the County's jurisdiction or control under CEQA." Even if particular technologies and techniques had been identified and described in the EIR, this statement leaves the reader wondering if an applicant would be required to commit to any measures in its application or, alternatively, whether the applicant could omit those measures from its application because they were beyond the County's a...

People v Rodriguez

An audio recording of the March 9, 2015, interview was played for the jury. Rodriguez's statements about Medrano were edited out, but the jury heard his allegations regarding Christopher Hernandez. The editing makes it seem as though Rodriguez might have been relying on statements made by Hernandez's brother, but the jury also heard Rodriguez say he received information about the murder from Pancho. Thus, the jury was already aware Rodriguez had professed to know the identities of Ojeda's passengers. Whatever inferences jurors drew from Rodriguez's purported knowledge of Christopher Hernandez being "in the car" were presumably the same as those it might have drawn from learning Rodriguez had also said Medrano was "in the car." Therefore, Rodriguez cannot demonstrate the type of prejudice required for a mistrial. (See People v. Franklin (2016) 248 Cal.App.4th 938, 955 ["While '[a] witness's volunteered statement can, under some circumstances, provide the basis for a finding of incurable prejudice' [citation], 'a motion for mistrial should be granted only when "'a party's chances of receiving a fair trial have been irreparably damaged.'"' [Citation.] Moreover, it is only in the 'exceptional case' that any prejudice from an improperly volunteered statement cannot be cured by appropriate admonition to the jury. [Citations.]"].)

People v Cry

In Vela, as in this case, the defendant had been charged in adult criminal court, tried, convicted, and sentenced prior to the enactment of Proposition 57. (Vela, supra, 11 Cal.App.5th at pp. 71-72.) After the passage of Proposition 57, the Vela court concluded that proposition applied retroactively to the defendant's case under the rule in Estrada, supra, 63 Cal.2d 740. (Vela, at pp. 76-81.) Regarding the remedy fashioned in Vela, our Supreme Court in Lara wrote: "After finding that the defendant was entitled to a transfer hearing, the Vela court considered the remedy. It began by noting that the 'jury's convictions, as well as its true findings as to the sentencing enhancements, will remain in place. Nothing is to be gained by having a "jurisdictional hearing," or effectively a second trial, in the juvenile court.' [Citation.] Noting that an 'appellate court "may, if proper, remand the cause to the trial court for such further proceedings as may be just under the circumstances[]" [citation],' the court ordered a limited remand. [Citation.] [¶] Specifically, the Vela court ordered as follows: 'Here, under these circumstances, Vela's conviction and sentence are conditionally reversed and we order the juvenile court to conduct a juvenile transfer hearing. [Citation.] When conducting the transfer hearing, the juvenile court shall, to the extent possible, treat the matter as though the prosecutor had originally filed a juvenile petition in juvenile court and had then moved to transfer Vela's cause to a court of criminal jurisdiction. [Citation.] If, after conducting the juvenile transfer hearing, the court determines that it would have transferred Vela to a court of criminal jurisdiction because he is "not a fit and proper subject to be dealt with under the juvenile court law," then Vela's convictions and sentence are to be reinstated. [Citation.] On the other hand, if the juvenile court finds that it would not have transferred Vela to a court of criminal jurisdiction...

People v Tabron

Our holding on this issue follows and applies Martinez, supra, 31 Cal.App.5th at pages 724-730, where a panel in Division 5 of the Second District Court of Appeal rejected the reading of Senate Bill 1437 Tabron, Castro and Silva now proffer. Citing cases construing and applying analogous ameliorative statutes enacted by Prop 36 (People v. Conley (2016) 63 Cal.4th 646 (Conley)), and Prop 47 (People v. DeHoyos (2018) 4 Cal.5th 594 (DeHoyos)), the Martinez court held that "[t]he analytical framework animating the decisions in Conley and DeHoyos is equally applicable here. Like Propositions 36 and 47, Senate Bill 1437 is not silent on the question of retroactivity. Rather, it provides retroactivity rules in section 1170.95. The petitioning procedure specified in that section applies to persons who have been convicted of felony murder or murder under a natural and probable consequences theory. It creates a special mechanism that allows those persons to file a petition in the sentencing court seeking vacatur of their conviction and resentencing. In doing so, section 1170.95 does not distinguish between persons whose sentences are final and those whose sentences are not. That the Legislature specifically created this mechanism, which facially applies to both final and nonfinal convictions, is a significant indication Senate Bill 1437 should not be applied retroactively to nonfinal convictions on direct appeal." (Martinez, at p. 727.) The holding and the analysis in Martinez have now been adopted by three other Court of Appeal panels in published opinions. (See People v. Anthony (2019) 32 Cal.App.5th 1102, 1147, 1153; In re Taylor (2019) 34 Cal.App.5th 543, 561-562; In re R.G. (2019) 35 Cal.App.5th 141, 151.)

Save the Agoura Cornell Knoll v City of Agoura Hills

None of the cases cited by Appellants in support of forfeiture compel a different conclusion. In two of the cases– St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 167 Cal.Rptr.3d 517 and Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 197 Cal.Rptr. 250 –the appellate court applied the well-established principle that new legal theories raised for the first time in a reply brief generally will not be considered unless good cause is shown for the failure to present them earlier. ( St. Mary v. Superior Court , supra , at pp. 782-783, 167 Cal.Rptr.3d 517 [defendants raised new theory for relief in reply brief filed in support of discovery motion despite representations to trial court that motion was not based on that ground]; Balboa Ins. Co. v. Aguirre , supra , at pp. 1009-1010, 197 Cal.Rptr. 250 [plaintiff forfeited equal protection claim where issue was never raised in trial court and was asserted for first time in reply brief on appeal].) This principle does not, however, preclude Petitioners from proving exhaustion of administrative remedies because that issue was not a new legal theory raised for the first time in a reply brief. Rather, as discussed, it was first alleged by Petitioners in their writ petition and then argued in their reply in direct response to the failure-to-exhaust arguments raised by Appellants and the City. The other cases on which Appellants rely– Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 161 Cal.Rptr.3d 700 and Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 13 Cal.Rptr.2d 811 – are also inapposite. In each of those cases, the moving party offered new evidence with their reply papers. ( Jay v. Mahaffey , supra , at p. 1538, 161 Cal.Rptr.3d 700 [moving parties in anti-SLAPP motion "wait[ed] until the reply briefs to bring forth any evidence at all, when the [opposing parties] would have no opportunity to respond"]; Plenger v. Alza Corp. , supra , at p. 362, fn. 8, 13 Cal.Rptr.2d 811 [where party moving for summary judgment off...

Tahoe Residents United for Safe Transit v County of Placer

The December 12, 2011, letter noted that Mill Site Road was a public road, while Schaffer Mill Road was private. It went on to say, "While you are correct in stating that the plans approved for the Martis Camp project reserved for the County ingress and egress rights over Schaffer Mill Road for emergency access and transit service, the County is not aware of any restrictions that [prohibit] the residents of Martis Camp from utilizing the public roadways (i.e., Mill Site Road) that abut [Martis Camp]." (Italics added.) The letter further stated, "Your letter contends that the County is sitting idly while 'Martis Camp improperly attempts to change a(n) Emergency Vehicle Access into a thoroughfare for the owners of lots within its subdivision to drive to and from Northstar for which there has been no CEQA study, compliance nor approval.' For the record, while Martis Camp was required to provide Emergency Vehicle Access through its connection with Mill Site Road (which it has in fact provided), I can find nothing in the record that prohibits Martis Camp residents from utilizing the public roadways (i.e., Mill Site Road) that abut the Martis Camp development." (Italics added.) Thereafter, the letter states, "You do not give any specifics as to how the CEQA analysis prepared for both the Retreat at Northstar and Martis Camp projects are not adequate to address traffic generation associated with the respective projects. . . . The usage of public roadways of which your letter complains arises not from a County action, or the County's approval of an action requiring a permit, but rather from the access rights pertaining to land abutting private roadways. Thus, there is no 'current' project for purposes of CEQA analysis." Later, the letter states, "The design width for Mill Site Road was predicated upon the intended volume of traffic as identified in the environmental analysis for the project, and the daily use of Mill Site Road is not exceeding the capacity of the roadway."...

People v Holmes

During closing argument, the prosecutor also argued that defendant had no right of self-defense because defendant "went to the victim, not once but twice. . . . [¶] . . . [¶] Where the Defendant creates a situation -- there's actually a law on that -- creates this need to use force, self-defense is not available. Again, common sense. When you go up to somebody who he says cut him a minute before, you are creating a situation. All right? All of these have to be present for self-defense or defense of others to apply. [¶] . . . [¶] Now, this is what I was telling you about if the Defendant is the one who starts the fight, if he provokes somebody into the creation -- he creates a situation where he has to use lethal force, self-defense does not apply. Again, that's just common sense. If you create the situation, if you go towards somebody in an aggressive manner, you are creating a situation, and self-defense does not apply. [¶] If Defendant started a fight, this is what we call an 'initial aggressor' or 'mutual combat.' If you start a fight or you are in mutual combat -- you are like Greg and Gary -- if you both are involved in the fight and you are withdrawing, you are stopping the fight, you have to, by word or conduct, let your opponent know that you are stopping the fight, like saying, 'Hey, it's over' or 'Back it up," whatever. If you are the initial aggressor, unless you do something like that, no self-defense. Again, that obviously is just common sense. [¶] If he provoked the fight or quarrel with the intent to create an excuse to use force, he provoked it. He went to [the victim]. He said he had the gun. If he is so afraid of that knife, got cut again, as he said, why would he go towards the victim? So if he provokes a fight and he create[s] that situation, no self-defense is available to him." The prosecutor continued: "The law also provides for imperfect selfdefense and defense of others, and what the law says is he actually believed or feared that Greg was ...

In re Marriage of Brewster and Clevenger

We thus conclude that to overcome the section 4325 presumption against awarding spousal support to a spouse convicted of domestic violence based on "documented evidence of a convicted spouse's history as a victim of domestic violence," the convicted spouse must present written evidence in the form of a "writing" within the meaning of Evidence Code section 250 proving by a preponderance his or her history as a victim of domestic violence in the relationship. This interpretation is supported by the legislative history of the statute. Early iterations of the statute did not specify that the court had to consider "documented evidence" of a convicted spouse's history as a victim of domestic violence to rebut the presumption; rather, it stated the court "may consider a convicted spouse's history as a victim of domestic violence as a condition for rebutting the presumption" and "shall consider a reduction in the award of spousal support to a supported spouse who has a history of domestic violence against the supporting spouse." (Sen. Com. On Judiciary, Analysis of Sen. Bill No. 1221 (2001-2002 Reg. Sess.) as amended Apr. 19, 2001, p. 2.) The Senate Judiciary Committee raised concerns: "Even with the requirement of a conviction for the imposition of a rebuttable presumption for reduction of support, the bill may lead some divorcing parties to bring domestic violence charges in the hope of reducing their support obligations. With the amendments permitting the court to consider a party's ‘history’ as the victim of domestic violence to rebut the presumption, or a party's ‘history’ as an abuser, short of a conviction, to reduce an award of support, the potential for manipulation of criminal charges to affect support obligations increases. This provision [the rebuttable presumption against support] not only may increase the large number of modification motions now filed, but could take up the time and resources of prosecutors and the courts in addressing marginal charges filed ...

People v Verde

Appellant raises seven issues in the present appeal. He argues that insufficient evidence supports both his conviction in count 5 for dissuading a witness and the jury's true finding in count 1 regarding the enhancement allegation for human trafficking. He asserts that his conviction for human trafficking in count 2 must be reversed, claiming the same evidence was used to convict him of both human trafficking counts. He contends the prosecutor committed misconduct, alleging the prosecutor elicited false trial testimony from a detective. He raises a claim of instructional error in count 6 (giving another person a large-capacity magazine). Finally, he asserts the trial court abused its discretion in not staying his sentences for abduction of a minor for prostitution and pandering by encouraging. We reject these claims. However, we agree with the parties that the trial court misunderstood its sentencing discretion in count 5 when it followed the erroneous recommendation from probation that a consecutive sentence was required for appellant's conviction of dissuading a witness. We reject respondent's assertion that resentencing would be an idle act. We also agree with the parties that the court miscalculated appellant's sentence in count 4 (pandering). We vacate appellant's sentence and remand for resentencing. In all other respects, we affirm the judgment.

Evangelista v Duggan

Here, the trial court received evidence regarding Plaintiffs' counsel's efforts to investigate the claims prior to entering into the settlement agreement. Plaintiffs filed their complaints in mid-March 2015. Counsel reviewed the Recommendation Statement with a retained financial expert and determined there were issues with the disclosures. Because the tender offer was set to expire mid-April 2015, Plaintiffs' counsel immediately began negotiating with Defendants' counsel in an effort to obtain additional documents voluntarily on an expedited basis; Defendants produced such documents on April 1, 2015, including minutes from Pharmacyclics' Board meetings and presentations from the Board's financial advisors. After reviewing the documents with a retained financial expert, counsel determined the offer price was in the range of reasonableness, making it difficult to obtain monetary benefits; even if the offer was low, counsel found no evidence of malfeasance by the Board, such that counsel elected to pursue additional disclosures to assist shareholders in making a fully-informed decision about the tender offer. Notably, at the time they filed the complaints, Plaintiffs believed Johnson & Johnson had made a higher bid than AbbVie to acquire Pharmacyclics; after conducting discovery, they realized that was not the case. On April 3, 2015, Plaintiffs' counsel demanded additional disclosures from Defendants, including the financial projections prepared by management and the financial analyses of J.P. Morgan and Centerview. Defendants' responded shortly thereafter, leading to the discussions that resulted in the MOU and settlement agreement. At trial, counsel confirmed the information obtained in the settlement was not in the public domain. The evidence before the trial court showed Plaintiffs' counsel took immediate action following the filing of the complaints and conducted discovery and investigation appropriate to analyze the fairness of the proposed settlement. Nothing i...

People v Balassa

Defendant also cites to Massiah v. United States (1964) 377 U.S. 201 (Massiah), which holds that "once a judicial proceeding has been initiated against an accused and the Sixth Amendment right to counsel has attached, any statement the government deliberately elicits from the accused in the absence of counsel is inadmissible at trial against the defendant. [Citations.] To prevail on a Massiah claim, a defendant must show that the police and the informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. [Citations.] 'Specifically, the evidence must establish that the informant (1) was acting as a government agent, i.e., under the direction of the government pursuant to a preexisting arrangement, with the expectation of some resulting benefit or advantage, and (2) deliberately elicited incriminating statements.'" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 66-67; accord, People v. Keo (2019) 40 Cal.App.5th 169, 185.) In this case, defendant does not argue, and the record does not indicate, that the government elicited or attempted to elicit incriminating statements from defendant once he invoked his rights under Miranda. Although defendant argues that by using his postinvocation silence against him, "the prosecutor turned Massiah on its head," he also does not argue that the prosecutor used his invocation of the right to counsel against him at trial. Therefore, our analysis is limited to defendant's claim of Doyle error stemming from his postinvocation silence. (See People v. Gamache (2010) 48 Cal.4th 347, 378 [moving party bears the burden of demonstrating error on appeal].)

People v Pineda

Given the statutory requirement that the ability to pay hearing before the court be knowingly and intelligently waived, the Trujillo court addressed the general rule that the forfeiture doctrine is inapplicable to the prophylactic advisement of constitutional rights and it distinguished the waiver of the ability to pay hearing under the statute from "momentous rights" such as those relinquished by pleading guilty, waiving the right to counsel or waiving the right to appeal. (Trujillo, supra, 60 Cal.4th at pp. 859-860, citing Boykin v. Alabama (1969) 395 U.S. 238, 242-243 [acceptance of guilty plea]; Faretta v. California (1975) 422 U.S. 806, 835 [waiver of right to counsel]; People v. Panizzon (1996) 13 Cal.4th 68, 80 [waiver of right to appeal].) The Trujillo court observed that the case before it did not involve a claim that "any core autonomy interests or constitutional rights are implicated by the waiver of a judicial hearing on a defendant's ability to pay, and no similar waiver is required for any of the analogous sentencing fines and fees." (Trujillo, supra, at p. 859, italics added.) That statement was made in the context of determining whether the statutory waiver provision in section 1203.1b, subdivision (a), required an affirmative showing that the defendant knowingly and intelligently waived her right to a court hearing or whether "tacit[] assent[]" was sufficient. (Trujillo, supra, at p. 859.) I would adhere to the well-settled principle that "cases are not authority for propositions not considered" (People v. Ault, supra, 33 Cal.4th at p. 1268, fn. 10) and decline to rely on the proposition advanced by the majority that the waiver language in Trujillo "strongly suggest[s] no constitutional rights were implicated when the trial court imposed the disputed fees, fines and assessments against appellant without first conducting an ability to pay hearing." (Maj. opn., ante, at p. 23.)

In re Brown

When the trial court granted habeas writ relief, the SBSC was thereafter required to consider the entire sentencing scheme and reconsider all sentencing choices, as to all pending determinate cases. ( People v. Hill (1986) 185 Cal.App.3d 831, 834, 230 Cal.Rptr. 109.) This is "because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme." ( Ibid. ) "[Penal Code] [s]ection 1170.1 generally governs the calculation and imposition of a determinate sentence when a defendant has been convicted of more than one felony offense." ( People v. Williams (2004) 34 Cal.4th 397, 402, 19 Cal.Rptr.3d 619, 98 P.3d 876.) Under Penal Code section 1170.1, subdivision (a), "Except as otherwise provided by law, and subject to [Penal Code] [s]ection 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court , and a consecutive term of imprisonment is imposed under [Penal Code] [s]ections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and [Penal Code] [s]ection 12022.1." (Italics added.) California Rules of Court, rule 4.452 further provides: "If a determinate sentence is imposed under [Penal Code] section 1170.1 [,] [subdivision] (a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term , as defined in [Penal Code] section 1170.1 [,] [subdivision] (a), stating the result of combining the previous and current sentences. In those situations: [¶] (1) The sentences on all determinately sentenced counts in all of the...

Citizens of Humanity v Hass

There is indeed uncertainty as to the label on the Ingrid jeans. Hass did not recall whether the label said, "Made in the U.S.A." or "Made in the U.S.A. with imported fabrics." There is no indication the Del Mar Attorneys inspected her jeans. And Gary Freedman, Citizens's general counsel, declared that the Ingrid jeans were never "solely" labeled "Made in the U.S.A." But what inferences can reasonably be drawn from these facts? Hass alleged she purchased Ingrid-style jeans bearing a label indicating they were U.S.-made, and a lawyer may generally rely on information provided by a client. ( Daniels, supra , 182 Cal.App.4th at p. 223, 105 Cal.Rptr.3d 683.) The extent of attorney investigation is irrelevant to the question of probable cause. ( Sheldon, supra , 47 Cal.3d at pp. 882–883, 254 Cal.Rptr. 336, 765 P.2d 498.) Hass never alleged her jeans were "solely" labeled "Made in the U.S.A." And I submit that Freedman's carefully worded declaration cannot be read to suggest the Ingrid jeans bore only a qualified label stating, "Made in the U.S.A. with imported fabrics." In short, Citizens did not produce evidence that would support a reasonable inference at trial that the Ingrid jeans were not labeled as "Made in the U.S.A." to serve as the basis for Hass's claims. As the majority point out, we do not know whether the Ingrid jeans contained foreign components. But Hass was stepping in as a new named plaintiff in an action that from the start broadly challenged how Citizens labeled its apparel. By the time Hass became involved, Citizens had admitted mislabeling a different style of jeans. Its refusal to allow discovery beyond the Boyfriend jeans that Clark bought precluded Hass and her counsel from knowing where components of other jeans were sourced. Probable cause is lacking where an action is pursued without evidence sufficient to uphold a favorable judgment or without information supporting an inference that such evidence can be obtained for trial. ( Daniels, supra , ...

Herpel v County of Riverside

The court stated that it has "applied a flexible pre-emption analysis sensitive to the particular facts and legislation involved" and noted that "determining whether federal legislation has pre-empted state taxation of lessees of Indian land is primarily an exercise in examining congressional intent," against which "the history of tribal sovereignty serves as a necessary ‘backdrop.’ " ( Cotton Petroleum, supra , 490 U.S. at p. 176, 109 S.Ct. 1698.) Cotton Petroleum rejected Cotton's assertion that the relevant federal legislation "exhibit[ed] a strong federal interest in guaranteeing Indian tribes the maximum return on their oil and gas leases." ( Cotton Petroleum, supra , 490 U.S. at p. 177, 109 S.Ct. 1698.) According to the court, the legislation at issue, the Indian Mineral Leasing Act of 1938, 52 Stat. 347 (the 1938 Act), "neither expressly permit[ted] state taxation nor expressly preclude[d] it." ( Cotton Petroleum, supra , at p. 163, 109 S.Ct. 1698.) It then turned to the legislative history. A letter from the Secretary of the Interior accompanying the Senate and House Reports to the 1938 Act stated that current law was inadequate in giving " ‘the Indians the greatest return from their property’ " because discoverers of mineral deposits on Indian lands received fewer rights than those on non-Indian lands. ( Cotton Petroleum, supra , at p. 178, 109 S.Ct. 1698, italics omitted.) " ‘For instance, on the public domain the discoverer of a mineral deposit gets extralateral rights and can follow the ore beyond the side lines indefinitely, while on the Indian lands under the act of June 30, 1919, he is limited to the confines of the survey markers not to exceed 600 feet by 1,500 feet in any one claim.’ " ( Cotton Petroleum, supra , at p. 178, 109 S.Ct. 1698.) According to the letter, the 1938 Act " ‘would permit the obtaining of sufficient acreage to remove the necessity for extralateral rights with all of its attending controversies.’ " ( Ibid. ) As the court conclud...

People v Miranda

Although Miranda did not forfeit her challenge to the imposition of the $70 court operations assessment fee, any error in denying her a hearing on her ability to pay this fee was harmless beyond a reasonable doubt. Miranda received indeterminate life terms for torture and aggravated mayhem, one of which it stayed, and an aggregate determinate term of five years and eight months on the other convictions. A court may consider the ability to earn prison wages in determining the ability to pay. (People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837.) "Wages in California prisons currently range from $12 to $56 a month. [Citations.] And half of any wages earned (along with half of any deposits made into [the inmate's] trust account) are deducted to pay any outstanding restitution fine." (Jones, supra, 36 Cal.App.5th at p. 1035.) Nothing in the record suggests that Miranda suffers from any physical or mental limitations, or that she might be ineligible for prison work assignments. Accordingly, we can infer that Miranda will have the opportunity to earn prison wages and can start paying this financial obligation. (Aviles, supra, 39 Cal.App.5th at p. 1076.) With a minimum of $6 a month going to pay the restitution fine and the other half of monthly prison wages available to pay the remaining $70, Miranda would theoretically be able to pay the $70 fee in one year. (People v. Johnson (2019) 35 Cal.App.5th 134, 139 ["The idea that [defendant] cannot afford to pay $370 while serving an eight-year prison sentence is unsustainable."].) Thus, even assuming the fee was wrongfully imposed under Dueñas, supra, 30 Cal.App.5th 1157, the error was harmless beyond a reasonable doubt given her sentence. (Jones, at p. 1035.)

People v RG

Here, the evidence falls short of establishing an associational or organizational connection between the Norteño gang defendants sought to benefit in this case and the Norteño gang to which K.O. apparently belonged when he was arrested for possessing methamphetamine for sale. As mentioned, E.G. was wearing a Chicago Bulls hat embroidered with the words "Active" and "Bully" when he was arrested. R.G. had a red bandana in his pocket. As Detective Guzman explained, the bandana and the hat indicated defendants' membership in the Norteño gang, with the hat further indicating E.G.'s membership in the Varrio Franklin Boulevard subset. The detective also testified to the content of various pictures in E.G.'s phone, in which he was displaying certain gang signs indicative of his belonging to the Varrio Franklin Boulevard subset, including "two pinkies up, . . . bull horns for boulevard." The detective further testified that Varrio Franklin Boulevard was involved in two feuds at the time of the shooting in this case, one with Fruitridge Vista and another with the Tongan Crips. The latter feud supports a reasonable inference defendants were acting to benefit Varrio Franklin Boulevard when they shot up the K.'s house and murdered Ravana in this case. However, there is no evidence K.O. was a member of Varrio Franklin Boulevard or another subset with an associational or organizational connection to Varrio Franklin Boulevard. Indeed, the only evidence of K.O.'s subset was one of the Facebook images in which he was apparently making a "pinkies down" gang sign, often used by rivals of Varrio Franklin Boulevard, such as Fruitridge Vista, to show disrespect to that subset. Thus, far from there being evidence of K.O.'s membership in the same Norteño gang defendants sought to benefit in this case, the only evidence of K.O.'s gang affiliation indicates he was a member of a rival Norteño gang, a conclusion that is also supported by the fact he was shot by defendants in the shootout in th...

People v Bermudez

We are aware that a split of authority exists as to whether testimony about predicate offenses is case-specific information. In People v. Lara (2017) 9 Cal.App.5th 296, 337, the court did not consider the difference between background facts and case-specific facts. In People v. Ochoa (2017) 7 Cal.App.5th 575, 588-589, the court treated all predicate offense information as case-specific facts. There, the expert testified that people involved in the predicate offenses had admitted their gang membership. The Ochoa court concluded that these admissions were case-specific facts. The totality of the court's analysis on this is as follows: "It seems clear the hearsay statements at issue in the present case—out-of-court statements by individuals admitting being members of the [gang]—are case-specific hearsay rather than general background information about the [gang]. Sanchez gave the following as one in a series of examples of the distinction: 'That an associate of the defendant had a diamond tattooed on his arm would be a case-specific fact that could be established by a witness who saw the tattoo, or by an authenticated photograph. That the diamond is a symbol adopted by a given street gang would be background information about which a gang expert could testify. The expert could also be allowed to give an opinion that the presence of a diamond tattoo shows the person belongs to the gang.' [Citation.] By analogy, that someone admitted being a gang member is also a case-specific fact." (Ochoa, at pp. 588-589.) But in the Sanchez court's example, it is not clear whether the court was referencing a hypothetical "associate" who was a participant in the events "involved in the case being tried" (Sanchez, supra, 63 Cal.4th at p. 676) or a fellow gang member not involved in the case, but who had otherwise committed an unrelated predicate offense. We think the Sanchez court meant the former, as an example of a case-specific fact, because: (1) the issue before the Sanchez court d...

People v Daniel

The morning before the incident, Daniel and Ruiz were at Tony's house, "getting high," and went to a casino to get more heroin. They returned to Tony's house and smoked. Daniel's niece (who also stayed at Tony's) woke up and was hungry. Daniel had spent all her money, so she called and asked Gutierrez if he would buy groceries; he said yes but she and Ruiz had to go get him. They took the white sedan to Gutierrez's house. They picked up another man Daniel knew as "Boy" on the way. Boy and Ruiz had a sexual relationship, which Daniel knew because she and Gutierrez had a "foursome" with them. Daniel and Gutierrez went to the grocery store while Ruiz and Boy stayed at Gutierrez's house. When they returned to Gutierrez's house, Ruiz and Boy were arguing. Ruiz did not want to drive Boy back to Tony's house, but Daniel "calmed [her] down" and she agreed. Ruiz drove while Daniel sat in the passenger seat, Boy sat behind Daniel in the rear passenger side seat, and Gutierrez sat in the rear driver's side seat. Ruiz drove erratically and became angry again with Boy when she believed he was talking to another girl on the phone. Ruiz wanted to leave Boy and Gutierrez on the side of the freeway, but Daniel persuaded her not to. As they pulled up to Tony's, Ruiz began yelling at Daniel for siding with Boy. Ruiz started "talking shit," which hurt Daniel's feelings. Daniel began yelling at Ruiz and told her to calm down. The men began yelling at Ruiz for yelling at Daniel. After Ruiz kept calling Daniel "bitch," Daniel told Ruiz to "get her shit and get the fuck out of my house and not to come back." Boy made a comment about Ruiz "being back on the streets," which prompted Ruiz to swing at him. At this point, they had pulled into the alley near Tony's back fence with the blue tarp. When Daniel turned, she saw a knife in Ruiz's right hand. Daniel put her hands up, then grabbed Ruiz's wrist and clawed at her, trying to grab her other arm. Meanwhile, Ruiz hammered Daniel's face with ...

Sameer v Khera

In December 2017, more than two years after judgments were filed in favor of Attorneys in case No. 15CECG00351 and ex-husband prevailed on his anti-SLAPP motion in this case, Madhu filed a 164-page complaint in federal court alleging many claims against numerous defendants under RICO and other statutes. (See Sameer v. Khera (E.D.Cal. Aug. 6, 2018, No. 1:17-CV-01748 DAD EPG) [2018 U.S. Dist. Lexis 132021; 2018 WL 3753023] [order denying request for temporary restraining order].) The defendants named in the federal action included Madhu's "lawyers, her ex-husband, his lawyers, expert witnesses involved in her divorce proceedings, the judges who presided over those proceedings, and more." (Sameer v. Khera (E.D.Cal. Dec. 5, 2018, No. 1:17-CV-01748 DAD EPG) [2018 U.S. Dist. Lexis 205650 at *5; 2018 WL 6338729 at *1].) Her second amended complaint in the federal action alleged 15 causes of action, including fraud, negligence, breach of fiduciary duty, intentional and negligent infliction of emotional distress, obstruction of justice, defamation, aiding and abetting, civil conspiracy, and RICO conspiracy. (Ibid.) The district court determined Madhu's allegations were fanciful and concluded "the only appropriate response is to dismiss the case with prejudice, as federal courts lack subject-matter jurisdiction over actions such as this." (2018 U.S. Dist. Lexis 205650 at *7-*8; 2018 WL 6338729 at 2*.) Madhu appealed the dismissal to the United States Court of Appeals for the Ninth Circuit. On December 13, 2019, that court issued an opinion affirming the district court's dismissal of the lawsuit and denying Madhu's requests for judicial notice of documents, which the Ninth Circuit determined were irrelevant to the issues on appeal. (Sameer v. The Right Move 4 U (9th Cir. 2019) 787 Fed.Appx. 473 [2019 U.S. App. Lexis 36917; 2019 WL 6821136].)

People v Villachana

County of Placer itself involved revocation proceedings where the probationer subpoenaed the probation department's records of his supervision, which the probation department attempted to quash. (County of Placer, supra, 130 Cal.App.4th at pp. 809-810.) After concluding the records were subject to subpoena, the appellate court noted the record contained discussion whether the probation department was part of the "'prosecution team'" for purposes of discovery. (Id. at pp. 813-814.) The court found the "'prosecution team'" concept was not controlling because while the probation department had played an investigatory role with respect to the alleged violations of probation, in supervising the probationer and in compiling those records, the department had acted as an arm of the court. (Id. at p. 814.) Relevant here, the court's discussion in this regard articulated well how the probation department may work as an investigatory agency for certain law enforcement purposes while also serving as an arm of the court separate from the prosecuting authorities in other regards. (Ibid.) That dual role does not restrict probation in its law enforcement capacity from investigating probation violations which also reveal violations of the law (Pen. Code, § 830.5, subd. (a)(4)), nor does probation's separate role serving the court restrict prosecuting authorities from using the fruits of a probation search as evidentiary support for new criminal charges or calling probation officers to testify at trial on those charges. While probation officers serve different roles, defendant has not established how probation's law enforcement role in investigating the discovery of the firearm and ammunition during a valid probation search impermissibly trod on the powers of the prosecutor, as a function of the executive branch, to determine the investigation of crime, what charges to file, and whom to charge. (People v. Eubanks (1996) 14 Cal.4th 580, 589 [district attorney's discretionary executi...

People v Ramirez 2

Hoskins also testified about an offense committed by Hector Villa Gomez on August 17, 2011. Hoskins described Gomez's arrest and stated "a search of [Gomez's] cell phone was conducted and on the cell phone they located pictures of firearms, as well as Norteno gang indicia. [¶] Mr. Villa Gomez was taken back to the south county station of the sheriff's office, where he refused to perform a strip search and took a fighting stance even though he was handcuffed. He was eventually transported to the Monterey County jail and he was found to be in possession of narcotics that were secreted between his buttocks. [¶] A search warrant was later authored and written for Mr. Villa Gomez's residence where the upper receiver for an AR or M4 assault rifle was located. And in addition . . . crystal methamphetamine for the purposes of sales, ammunition and Norteno gang indicia were all located inside his residence." Hoskins testified that Villa Gomez was convicted of possession for sale of a controlled substance with a section 186.22 gang enhancement. The certified conviction records for this offense admitted into evidence show that Villa Gomez was convicted of possession of a controlled substance for sale (Health & Saf. Code, § 11378) with a gang enhancement (§ 186.22, subd. (b)(1)). Hoskins testified it was his opinion that Villa Gomez was an active member of the Norteno criminal street gang at the time of this offense.

People v Villareal

Thus, the only question is the proper remedy for the error. Villareal argues that the proper remedy is to reverse his conviction. We disagree. If the trial court had found, at the time it dismissed the second case and allowed the third case to be refiled, that one of the dismissals was "due solely to excusable neglect" (§ 1387.1, subd. (a)), the prosecution could have proceeded with the refiled attempted murder charge against Villareal despite the two dismissals. As the Attorney General suggests, the court's failure to make a finding regarding excusable neglect may be remedied by remanding the question to the trial court. We have the authority under section 1260 not merely to "reverse, affirm, or modify a judgment or order appealed from," or to "order a new trial," but also to "remand the cause to the trial court for such further proceedings as may be just under the circumstances." (§ 1260.) Our Supreme Court has held that we may use this authority in appropriate circumstances to allow the trial court to make certain factual findings even after trial. " '[W]hen the validity of a conviction depends solely on an unresolved or improperly resolved factual issue which is distinct from issues submitted to the jury, such an issue can be determined at a separate post-judgment hearing and if at such hearing the issue is resolved in favor of the People, the conviction may stand.' [(People v. Vanbuskirk (1976) 61 Cal.App.3d 395, 405 (Vanbuskirk).] In other words, 'when the trial is free of prejudicial error and the appeal prevails on a challenge which establishes only the existence of an unresolved question which may or may not vitiate the judgment, appellate courts have, in several instances, directed the trial court to take evidence, resolve the pending question, and take further proceedings giving effect to the determination thus made.' " (People v. Moore (2006) 39 Cal.4th 168, 176-177 (Moore).)

Smith v Smith In re Marriage of Smith

Indulging all reasonable presumptions in favor of the trial court's order, we interpret the trial court's statements to mean the court realized the relevant facts could change over time when it analyzed the factual similarities of the two representations, but the passage of time, in and of itself, was not relevant. We further conclude the relevant facts were how circumstances changed in the interval between the two representations. For example, under California law, an order of spousal support can be modified based on a material change in circumstances since the order. (In re Marriage of Biderman (1992) 5 Cal.App.4th 409, 412.) Simply showing that time had passed since a prior support order would not justify modifying the support. Thus, the court's statement that "the length of time between [the two representations] is irrelevant" is technically accurate and should not be interpreted to mean the court ignored the relevant change in circumstances that occurred between the two representations. Stated another way, the passage of time is not directly relevant, but it may explain why confidential information has become obsolete and, therefore, is no longer material to the current proceeding. (See Niemi v. Girl Scouts of Minnesota and Wisconsin Lakes and Pines (Minn.Ct.App. 2009) 768 N.W.2d 385, 389, 390 [plaintiff disclosed her job experience, qualifications, supervisory skills, and relationship with staff to attorney representing her in an employment discrimination case 25 years earlier; court determined those facts were obsolete and only of limited, peripheral relevance to her current discrimination lawsuit].) Therefore, we reject Gregory's contention that the passage of time was a dispositive factor in this case.

People v Ratcliffe

Defendant focuses on the following exchange that occurred prior to the advisement of his Miranda rights: "INVESTIGATOR WATERS: . . . Antoine; right, partner?"[DEFENDANT]: Hi, how are you doing?"INVESTIGATOR WATERS: Good. Good, how are you, man?"[DEFENDANT]: I'm all right. [¶] . . . [¶]"INVESTIGATOR WATERS: Hey, I'm Investigator Waters, all right, and I'm with the sheriff's department—the homicide unit. [¶] . . . [¶] And my partner here—here he comes. . . . This is James Campos, all right."[DEFENDANT]: Unhuh."INVESTIGATOR WATERS: Hey, I know you already talked to Colmer—Lance Colmer. I'm—I'm the one that's working on the—that shooting out there in Moreno Valley— [¶] . . . [¶] —last month, I think, on the 9th or something like that."[DEFENDANT]: Yeah, I believe it was June 12th."INVESTIGATOR WATERS: Okay. Yeah. [¶] . . . [¶] Time is slipping away already. I'm the one . . . doing that investigation, all right. Colmer's been helping me, because he works for Moreno Valley out of that station, and, you know, I—I hop around from station to station, man— [¶] . . . [¶] —throughout the whole—this afternoon, I could be in, fricking, Blythe out in the desert, all right. [¶] . . . [¶] It's just the way it goes, but I want to take this—he told me that, you know, he violated you. He said— [¶] . . . [¶] —you know, so my point was, I actually wanted to talk to you myself before, you know, we were under these circumstances or anything. [¶] . . . [¶] All right?"[DEFENDANT]: Uhhuh."INVESTIGATOR WATERS: But just I got busy and shit, and you know, shit happens but— [¶] . . . [¶] —I want to talk to you about it, you know. Some things have come up, you know. It's been over a month now. [¶] . . . [¶] But we're kind of, at the end of that, you know—kind of, at the end of my investigation right now."[DEFENDANT]: Uhhuh."INVESTIGATOR WATERS: All right. And I know there—there's some issues that I need to deal directly with you about. [¶] . . . [¶] And I want to be able to afford you that opport...

Alexander v Community Hospital of Long Beach

The hospital contends no substantial evidence supported its liability to Alexander and Harris for negligent supervision of Kohl because no evidence suggested it was aware before Kohl committed misconduct that he had a propensity to do so. We agree. "[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. [Citation.] Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes." ( Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054, 58 Cal.Rptr.2d 122.) "To establish negligent supervision, a plaintiff must show that a person in a supervisorial position over the actor had prior knowledge of the actor’s propensity to do the bad act." ( Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902, 189 Cal.Rptr.3d 570, italics added.) Here, plaintiffs alleged that Kohl "had a history of sexual harassment and creating a hostile work environment at other jobs before he worked for defendants[,] and if defendants had conducted a thorough background check they would have discovered this and[,] not hired Kohl or given him the authority over the plaintiffs that they did. [¶] After Kohl began working for defendants, he began sexually harassing employees, creating a hostile work environment, favored homosexual employees and male employees over female employees and actively pursued anyone who stood up to him so that they would be terminated from their employment. [¶] After Kohl began working for defendants, they knew or should have know[n] of his illegal improper behavior[,] ... and ratified that conduct by failing to take any action against Kohl ...." (Capitalization standardized.)

People v Irving

Thus, Noguera stands for the proposition that a victim's state of mind must be relevant to an issue in the case in order to fall within the state-of-mind exception to the hearsay rule. (See, e.g., People v. Kovacich (2011) 201 Cal.App.4th 863, 884 [citing Noguera for proposition that "[a] prerequisite to this exception is that the declarant's mental state or conduct be placed in issue"].) However, evidence of a victim's fear " 'is admissible [under section 1250] when the victim's state of mind is relevant to an element of the offense' " or "when the defendant claims that the victim has behaved in a manner inconsistent with that fear." (Kovacich, at pp. 884-885.) In Kovacich and other cases, the courts have admitted hearsay evidence of a victim's state of mind under that exception because it is relevant to an issue in the case. (Id. at p. 885 [victim's fear was relevant to determining whether she had informed the defendant of her plans to leave with children, providing the defendant a motive to kill her, or whether she instead committed suicide or abandoned him and the children as he suggested to detectives]; see also, e.g., Rufo v. Simpson (2001) 86 Cal.App.4th 573, 591-596 [victim's state of mind prior to murder was relevant to prosecution's theory about defendant's motive; distinguishing Noguera]; People v. Riccardi (2012) 54 Cal.4th 758, 810-820 [same, citing Simpson with approval], overruled on other grounds in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) Our high court has also applied the exception to admit evidence of a stalking victim's fear to prove the fear element of that crime. (People v. Brooks (2017) 3 Cal.5th 1, 37-38.) Similarly, testimony about a deceased victim's statements and conduct evincing fear of a defendant charged with crimes involving burglary and robbery has been held admissible both because it tended to show lack of consent to entry, an element of burglary, and because it was material to the force or fear element of robbery. (People ...

People v Flores 1

In the present case, the trial court used a modified version of CALCRIM No. 821, which addressed three ways section 273a, subdivision (a) can be violated: willfully causing or permitting a child to suffer unjustifiable physical pain or mental suffering; having care or custody of the child and willfully causing or permitting the child's health to be injured; and having care or custody of the child and willfully causing or permitting the child to be placed in a situation where her person or health was endangered. The modified instruction used the term "and/or" to signify that these were alternative bases upon which to convict each defendant or both of them of committing this crime. However, the modified instruction did not state that, as to each alternative, the defendant must have acted under circumstances or conditions likely to produce great bodily harm or death. Instead, by using the term "and/or" instead of just "and," the instruction provided the jury with a fourth alternative basis for conviction were it to find that the defendant "caused or permitted the child to suffer and/or be injured and/or be endangered under circumstances or conditions likely to produce great bodily injury." As the People concede, this was an error because circumstances or conditions likely to result in great bodily injury is an independent element of felony child abuse.

People v Bobadilla

Bobadilla's reliance on People v. May (1989) 213 Cal.App.3d 118, is misplaced because that case is distinguishable. In May, the defendant testified that he met the victim at a bar and drank and flirted with her. (Id. at pp. 123-124.) He claimed that she was a prostitute and "what transpired was nothing more than a sex-for-money transaction from the outset." (Id. at p. 125.) The victim, on the other hand, testified she was attracted to May, drank with him, and ultimately accompanied him to his apartment. (Id. at pp. 122-123.) The Court of Appeal described May's behavior from the time he and the victim met to their entry into his apartment as having "all the characteristics of a casual 'pick up.' " (Id. at p. 125.) From there, the victim's "version of subsequent events is, to say the least, enigmatic." (Id. at p. 126.) The victim followed May into his kitchen, brandished a knife, and told him " 'no.' " (Ibid.) "[S]he could not explain why she had not simply turned around and walked out the front door." (Ibid.) May responded by taking the knife out of the victim's hand, slapping her, and leading her to his bedroom. (Ibid.) The court observed that, other than simply delaying awhile before she took off her clothes at May's request in his bedroom, the "only other plausible manifestation of nonconsent to the ensuing sex acts was [the victim's] attempt to roll off the bed, to which May again reacted by slapping her." (Ibid.) The court opined that the victim's "behavior in willingly accompanying [May] to the apartment after several hours of merriment, her failure to escape when presented with the opportunity, and her lack of verbal objection while in the bedroom could reasonably have been misinterpreted by May as the conduct of someone playing games rather than resisting his advances. The testimony of May's father further strengthened the inference that [the victim] behaved as if she were a willing participant in the sexual encounter. Thus, there was unquestionably evidence...

Geiser v Kuhns

As for the second part of the catchall provision analysis, even if we accepted defendants' contention that the demonstrations concerned the issues of displacement of residents due to residential real estate business practices, gentrification, and large scale fix-and-flip real estate practices leading to the great recession, those demonstrations did not qualify for statutory protection because they did not further the public discourse on those issues. "'[I]t is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.' (Wilbanks [v. Wolk (2004)] 121 Cal.App.4th [883,] 898 [17 Cal.Rptr.3d 497]; see also Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280 ['[t]he fact that "a broad and amorphous public interest" can be connected to a specific dispute' is not enough].)" (FilmOn.com, supra, 7 Cal.5th at p. 150.) In determining whether speech or conduct contributes to the public debate and thus qualifies for statutory protection, "we examine whether a defendant—through public or private speech or conduct—participated in, or furthered, the discourse that makes an issue one of public interest. [Citations.]" (Ibid.; id. at p. 151.) As we conclude above, defendants' demonstrations at Wedgewood's office building and plaintiff's residence were directed at Wedgewood and plaintiff and were for the purpose of coercing Wedgewood into selling back the property to Ms. Caamal at a reduced price. Accordingly, the demonstrations did not further the public discourse on the issues of displacement of residents due to residential real estate business practices, gentrification, or large scale fix-and-flip real estate practices leading to the great recession.

People v Addleman

Second, had appellant moved for severance, he could not have made the clear showing of potential prejudice necessary to establish that the trial court abused its discretion in trying the properly joined charges together. No heightened scrutiny was required because this is not a capital case. (See Simon, supra, 1 Cal.5th at p. 128.) Further, the strength of the evidence in support of each count -- even disregarding appellant's admissions at trial -- dispels any relevant risk of evidentiary spillover. (See Ybarra, supra, 245 Cal.App.4th at p. 1437.) The charges for premeditated and deliberate attempted murder, assault, and possession of a firearm and ammunition were supported by strong evidence, including (1) Cano's and Perez's testimony about the shooting; (2) Cano's identification of appellant as the shooter in a photographic six-pack; and (3) appellant's admission, during his interview with Officer Crawford (after he attempted to fabricate an alibi), to being present during the shooting. Likewise, the charges for and associated with Chung's robbery were supported by strong evidence, including Chung's testimony, the surveillance video, the match between the robber's clothing and appellant's clothing upon arrest, and the discovery of Chung's property in appellant's car. The similar discovery of Arce's and Torga's property in appellant's car -- including checks made out to appellant and his "crew" -- provided strong support for the remaining charges. Given the strength of the evidence in support of each charge, it is immaterial that Cano's attempted murder or Chung's robbery might be characterized as more inflammatory than the other charges. (See Anderson, supra, 5 Cal.5th at p. 390 [trial court did not err in denying motion to sever charged burglaries from "far more serious" charged crimes, "given the strength of the evidence regarding those burglaries"].) Because appellant could not have made a clear showing of potential prejudice, his trial counsel was not ineffec...

People v Johnson

The People argue the Legislature did not intend to allow the trial court to modify supervision by transferring a defendant from parole supervision from PRCS because doing so would allow the trial court to intrude on decisions made by CDCR about the type of supervision required for the defendant. However, the statutory provisions enacted as part of realignment show that the Legislature was not concerned with preventing the trial court from reexamining and modifying the initial decisions made by CDCR when releasing an inmate to parole supervision. Significantly, the Legislature gave the trial court broad authority to "modify[ ] a person's parole" ( § 1203.2, subd. (b)(1) ) and to order a "modification of" parole conditions. ( § 3000.08, subd. (f)(1).) The Legislature conferred that authority on the trial court even though CDCR unquestionably has the initial role of setting the conditions of parole when an inmate is released from prison on parole supervision ( § 3000, subd. (b)(7) ), and the Legislature has given CDCR extensive discretion in setting those conditions. (See, e.g., §§ 3002-3004, 3006, 3008-3010, 3010.5, 3010.8.) In short, although prior to realignment courts held that "[i]ntrusions by the judiciary into the executive branch's realm of parole matters may violate the separation of powers" ( In re Prather (2010) 50 Cal.4th 238, 254, 112 Cal.Rptr.3d 291, 234 P.3d 541 ), after realignment the Legislature has given trial courts the authority to "intrude" on CDCR's initial decisions concerning parole supervision. We accordingly are not persuaded by the People's argument that a trial court does not have the authority to order a defendant transferred from parole supervision to PRCS because such an order would intrude on CDCR's authority to make decisions about the defendant's supervision. As the People observe, a defendant who believes he has been mistakenly placed on parole supervision rather than PRCS also has the ability to file an appeal with CDCR, and if uns...

People v Ramirez 1

Moreover, the prosecution was required to prove actual or constructive knowledge, which could be established if the accident was of such a nature that "it was reasonably likely to result in an injury to another person." (Holford, supra, 63 Cal.2d at pp. 79-80; Nordberg, supra, 189 Cal.App.4th at pp. 1237-1238.) It was undisputed Ramirez was aware he was in a horrific accident. He lost control of his vehicle after he ran a red light traveling at about 30 to 40 miles per hour and then crashed (without braking) into a bus bench on the sidewalk. This accident occurred in the early evening in a busy intersection where one would reasonably expect pedestrians, particularly at or near a bus stop. There was a person sitting on the bench and several people walking near the bench. Brother and Father both testified that within minutes of the collision Ramirez admitted that he thought he had "hurt" someone, even though he was purportedly still suffering from the panic attack. Father said Ramirez was shaken, sweaty, and had trouble breathing when he referred to a victim. This evidence overwhelmingly established that Ramirez had actual or at least constructive knowledge of the possibility of an injury triggering a duty to stay at the scene under the circumstances.

Ischemia Research and Education Foundation v Pfizer

The sanctions portion of the 2007 discovery order states in full: "For failure to comply with the order of August 23, 2007, the court imposes the following sanctions: [¶] 1. It shall be taken as established in this case that IREF located 7,773 [computer] files that demonstrated that Dr. Ping Hsu or someone at his direction accessed, or ran an analysis using, the EPI-1, EPI-2 or Acadesine databases during the period January 1, 2002, through February 2004. [¶] 2. IREF is precluded from introducing evidence that Dr. Ping Hsu, or anyone else acting at his direction, accessed the EPI-1, EPI-2 or Acadesine databases other than at IREF's direction during the period January 1, 2002, through February 2004, except for those files listed in Exhibit 3 to the deposition of Dr. Dennis Mangano and those identified in the declaration of Dr. Sam Teichman. [¶] 3. IREF is precluded from introducing evidence that Dr. Ping Hsu, or anyone else acting at his direction, ran an analysis using the EPI-1, EPI-2 or Acadesine databases other than at IREF's direction during the period January 1, 2002, through February 2004, except for those files listed in Exhibit 3 to the deposition of Dr. Dennis Mangano and those identified in the declaration of Dr. Sam Teichman. [¶] 4. IREF is precluded from introducing evidence that Dr. Ping Hsu, or anyone else acting at his direction, created or modified any electronic data as a result of accessing the EPI-1, EPI-2 or Acadesine databases other than at IREF's direction during the period January 1, 2002, through February 2004, except for those files listed in Exhibit 3 to the deposition of Dr. Dennis Mangano and those identified in the declaration of Dr. Sam Teichman. [¶] 5. IREF is precluded from introducing evidence that Dr. Ping Hsu, or anyone else acting at his direction, created or modified any electronic data as a result of running an analysis using the EPI-1, EPI-2 or Acadesine databases other than at IREF's direction during the period January 1, 2002...

People v Wilber

Defendant raises eight issues on appeal. First, defendant contends the trial court erred by admitting the recording of a pretext telephone call. Second, defendant asserts the trial court erred by allowing the prosecution to use an inaccurate transcript of the pretext call. Third, defendant contends the prosecutor committed misconduct in closing argument, related to the transcript of the pretext call. Fourth, defendant asserts the trial court erred by excluding evidence of the victim's mother's former employment as an exotic dancer. Fifth, defendant contends the trial court erred by allowing the investigating officer to offer opinions about defendant's and the victim's veracity. Sixth, defendant asserts the trial court erred by failing to instruct the jury that expert testimony about common behaviors of sexual abuse victims was not evidence of defendant's guilt. Seventh, defendant contends the trial court erred by denying his motion for a mistrial due to the prosecution's improper cross-examination of defendant. Eighth, defendant asserts the foregoing alleged errors were cumulatively prejudicial. We affirm the judgment.

Hoeper v City of San Francisco

We know of no California case that has recognized a government agency's claim of attorney-client privilege to protect a memorandum of investigation prepared by a government lawyer regarding possible false claims or public corruption, and our research has disclosed none. Rather, a memorandum of investigation is typically protected from disclosure by the conditional privilege for official information in Evidence Code section 1040. (People v. Jackson (2003) 110 Cal.App.4th 280,287.) The California Public Records Act also contains an exemption for records of investigations conducted by local law enforcement agencies. (Gov. Code, § 6254 subd.(f).) But the scope of the exemption is limited, and the identity of witnesses, statements and evidence must generally be disclosed. (Ibid.) The attorney work product doctrine provides that "an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances." (Code Civ. Proc., § 2018.030, subd. (a).) But even the work product privilege is conditional and may not embrace witness statements or the content of any factual investigation when necessary in the interests of fairness. (Code Civ. Proc., § 2018.030, subd. (b); Uber Technologies, Inc. v. Google, LLC (2018) 27 Cal.App.5th 953, 969.) Moreover, while the Public Records Act contains an exemption for drafts of memoranda, the San Francisco Sunshine Ordinance (S.F. Admin. Code, Ch. 67) states that drafts are not exempt from disclosure. (S.F. Admin. Code, § 67.24, subd. (a)(1).) The Sunshine Ordinance also provides that notwithstanding any exemptions provided by law, litigation material that was "previously received or created by a department in the ordinary course of business that was not attorney/client privileged when it was previously received or created" is a public document. (S.F. Admin. Code, § 67.24, subd. (b)(1)(ii).) While the Hoeper Draft Report of Investigation was marked Privileged and Confidential, it is nowhere mar...

People v Wear

In our view, the only aspect of the manner of killing that arguably supports a finding of premeditation and deliberation is the point-blank shot to Rossknecht’s ear, which was the second inflicted against Rossknecht. We do not question that this shot provides substantial evidence that Wear intentionally killed Rossknecht. (See People v. Smith (2005) 37 Cal.4th 733, 742, 37 Cal.Rptr.3d 163, 124 P.3d 730 ["the act of purposefully firing a lethal weapon at another human being at close range, without legal excuse, generally gives rise to an inference that the shooter acted with express malice"].) But "[i]t is well established that the brutality of a killing cannot in itself support a finding that the killer acted with premeditation and deliberation. ‘If the evidence showed no more than the infliction of multiple acts of violence on the victim, it would not be sufficient to show that the killing was the result of careful thought and weighing of considerations.’ " ( Anderson , supra , 70 Cal.2d at pp. 24–25, 73 Cal.Rptr. 550, 447 P.2d 942 ; see People v. Banks (2014) 59 Cal.4th 1113, 1153, 176 Cal.Rptr.3d 185, 331 P.3d 1206 [premeditation and deliberation require " ‘substantially more reflection than may be involved in the mere formation of a specific intent to kill’ "].) Here, with one exception, the eyewitnesses testified that the third shot immediately followed the second, leaving no span of time in which Wear could have premeditated and deliberated Rossknecht’s death. And while the remaining witness described a pause between the second and third shots that was "longer" than the "little pause" between the first and second shots, in light of the evidence as a whole it is simply speculative to conclude that Wear formed the requisite intent in any such interval. The Attorney General also suggests that Wear’s actions after the shootings reinforce the conclusion that Wear acted with premeditation and deliberation, as Wear "fled with Rossknecht’s possessions ... and attempt...

Vavala v Mandala

To the extent Vavala thought he could deprive the trial court of jurisdiction to enter the default judgment by filing an appeal of the portion of the October 12 order striking his answer and entering his default, he was mistaken, because that portion of the order was not appealable. (Thomas v. Luong (1986) 187 Cal.App.3d 76, 78 ["an order striking [appellant's] answer and entering his default as a sanction for failure to make discovery . . . is not appealable but is reviewable on appeal from the [default] judgment"]; Davis v. Taliaferro (1963) 218 Cal.App.2d 120, 124 ["the appeal attempted to be taken on November 20, 1961, was from a nonappealable order. The trial court is not divested of jurisdiction by an appeal from a nonappealable order"] Hearn Pacific Corp. v. Second Generation Roofing, Inc. (2016) 247 Cal.App.4th 117, 146 [when appellant's "appeal was invalid, it did not affect the trial court's jurisdiction to proceed"]; Central Savings Bank of Oklahoma v. Lake (1927) 201 Cal. 438, 442 ["It is contended that this notice of appeal had the effect of depriving the trial court of the power to proceed further in the cause pending the purported appeal. Under all of the circumstances here shown we think that such was not the case. The order from which the appeal was attempted to be taken was not an appealable order"]; see also Code Civ. Proc., § 916, subd. (a) ["the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby . . . but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order"].) Here, the only portion of the October 12 order that was appealable -- and the only portion appealed -- was the portion imposing $50,000 in monetary sanctions. Entering default judgment against Vavala would not have been affected by whether we affirmed or reversed the order imposing $50,000 in sanctions, and thus the tria...

People v Castaneda

As the California Supreme Court has held, "The trial court must instruct on general legal principles closely related to the case. This duty extends to necessarily included offenses when the evidence raises a question as to whether all the elements of the charged offense are present. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) . . . [¶] Nevertheless, 'the existence of "any evidence, no matter how weak," will not justify instructions on a lesser included offense.' (Breverman, supra, 19 Cal.4th 142, 162.) Such instructions are required only where there is 'substantial evidence' from which a rational jury could conclude that the defendant committed the lesser offense, and that he [or she] is not guilty of the greater offense. (Ibid.; accord, People v. Manriquez (2005) 37 Cal.4th 547, 584.)" (People v. DePriest (2007) 42 Cal.4th 1, 50.) "[T]he 'substantial' evidence required to trigger the duty to instruct on such lesser offenses is not merely 'any evidence . . . no matter how weak' (People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12), but rather ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]" ' that the lesser offense, but not the greater, was committed. (Id. at p. 684 . . . .)" (People v. Cruz (2008) 44 Cal.4th 636, 664, last ellipses added.) "We review de novo a trial court's failure to instruct on a lesser included offense (People v. Waidla (2000) 22 Cal.4th 690, 733), and in doing so we view the evidence in the light most favorable to the defendant. (People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5.)" (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)

People v Gutierrez 1

Gutierrez analogizes his case to Cromer, supra, 24 Cal.4th 889. In Cromer, the victim of a robbery, Culpepper, failed to appear for the trial, and her preliminary hearing testimony was admitted under Evidence Code section 1291. (Cromer, supra, at p. 893.) Culpepper appeared to be cooperative at the preliminary hearing in June 1997, but, two weeks after the hearing, officers patrolling the neighborhood where Culpepper lived reported that it appeared that she no longer lived there. (Id. at p. 903.) Despite knowing that Culpepper had disappeared from her neighborhood, serious efforts were not made to locate her until six months had passed, in December 1997, when the trial was set for January 1998. (Ibid.) At that point, officers went to Culpepper's residence five or six times and were informed by a woman at the address that Culpepper no longer lived there. (Ibid.) Two days before the matter was set for trial, a man at Culpepper's former home told investigators that Culpepper was living with her mother. (Ibid.) Investigators did not follow up on this information until two days later, when they visited the mother's house. (Id. at pp. 903-904.) A woman at the house said that Culpepper's mother was not there but would be returning the next day. (Id. at p. 904.) The woman also said that she did not know where Culpepper was, and Culpepper did not live at the house. (Ibid.) Officers left a copy of the subpoena for Culpepper at her mother's house but did not return the next day to speak with Culpepper's mother or attempt to find other ways to contact Culpepper's mother. (Ibid.) Based on these undisputed facts, the Cromer court concluded that reasonable efforts were not made to secure Culpepper's presence at the trial. (Ibid.)



Jan | Feb | Mar | Apr | May | Jun | Jul | Aug | Sept | Oct | Nov | Dec

© 2019 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission