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California Courts of Appeal | Top Cases | March 2020

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People v Aguilera 1

To the extent the majority does engage in any analysis, it first raises a general straw-man argument that Martin was "permitted to rely on hearsay information in forming his opinion" and uses this point to insist his "opinions would not have changed had he known he could not recite case-specific hearsay or testimonial hearsay." (Maj. opn. ante, at pp. 92-93.) This is obviously insufficient to sustain the verdict in this case. First, this is not a case of merely relying on hearsay information and presenting an opinion. Rather, powerful and potentially inflammatory evidence was directly related to the jury that should not have been introduced. Further, while Martin could have simply presented his opinion without these supporting facts, such a decision should have lead to a cross-examination highlighting the unstated reliance on hearsay and resulting lack of non-hearsay evidence being offered by the prosecution. Second, and more importantly, the record belies the conclusion the majority reaches. Martin himself, during the section 402 hearing underlying his testimony, stated that he could not have formed his opinions without the records in question. While the procedural posture of his testimony is notable, one must actively evade the impact of his factual recitations to conclude, beyond a reasonable doubt, that the structure, authenticity, and believability of Martin's opinions would not suffer if he were forced to concede his opinions were not based on admitted evidence, but inadmissible hearsay. Indeed, it appears virtually certain that contrary to the majority's conclusion, such an admission shows the introduction of this evidence was prejudicial under any standard. The prosecution's case simply would not make sense without clear confirmation that all three defendants were gang members.

People v Garcia 3

The trial court instructed the jury on the gang enhancement allegations: "If you find the defendant guilty in crimes charged in counts one, two, three, four, and five or the lesser offenses to count three, you must then decide whether for each crime the People have proved the additional allegation that the defendant committed that crime for the benefit of, at the direction of, or in association with a criminal street gang. You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] To prove this allegation, the People must prove that: [¶] (1) The defendant committed the crime for the benefit of, at the direction of, or in association with a criminal street gang; and [¶] (2) The defendant intended to assist, further, or promote criminal conduct by gang members." The trial court's instructions defined a criminal street gang as an "association, or group of three or more persons, whether formal or informal, that has a common name or common sign or symbol that has as one or more of its activities the commission of residential burglaries, robberies, auto burglaries, assaults with firearms, and murders; and [¶] ... [w]hose members, whether acting alone or together, engage in or have engaged in a pattern of criminal gang activity. In order to qualify as a primary activity, the crime must be one of the group's chief or principal activities rather than an occasional act committed by one or more persons who happen to be members of the gang. [¶] Pattern of criminal activity used here means the commission of or conviction of any combination of two or more of the following crimes or two or more occurrences of one or more of the following crimes: Robbery, carrying a concealed firearm, carrying a loaded firearm, carjacking, auto burglary. At least one of those crimes was committed after September 6th, 1988; [¶] (3) The most recent crime occurred within three years of one of the earlier crimes; and [¶] (4) The crim...

People v Smith 3

We reject defendant's argument that the People failed to prove the corpus delicti because the fire investigator did not determine the specific point of origin of the fire, failed to rule out all possible accidental causes such as a fire started by a cigarette without a filter, and was prohibited from testifying to his opinion about the cause of the fire. As already explained, " 'the prosecution need not eliminate all inferences tending to show a noncriminal cause of [the harm]. Rather, the foundation may be laid by the introduction of evidence which creates a reasonable inference that the [harm] could have been caused by a criminal agency [citation], even in the presence of an equally plausible noncriminal explanation of the event.' [Citation.]" (People v. Ochoa, supra, 19 Cal.4th at p. 405.) In People v. Andrews, supra, 234 Cal.App.2d 69, the defendant argued that while there was evidence to eliminate some accidental causes for the fires, the People failed to prove the corpus delicti of multiple arson charges by failing to negate "all possible ways in which the fires could have been started other than by incendiary means," because "there could have been other possible causes of the fires, such as mice igniting matches, a carelessly dropped cigarette, sparks from automobiles (exhaust), etc." (Id. at p. 74.) Andrews held that while the People were required to produce evidence "that the fires were of incendiary origin" (id. at p. 76), "[t]he proposition that it was incumbent on the prosecution to rule out all possible or imaginary causes of the fires cannot be upheld." (Id. at p. 74.) Andrews held that reasonable inferences based on circumstantial evidence were adequate to prove that the human cause of the fire was intentional and not accidental. (Id. at pp. 74-76.)

People v Gomez 3

"To be eligible for consideration for pretrial diversion, the trial court must be 'satisfied that the defendant's mental disorder was a significant factor in the commission of the charged offense,' meaning that it 'substantially contributed' to defendant's commission of the offense. [Citation.] Here, the trial court had before it evidence of defendant's mental health history including defendant's medical records, his testimony regarding his mental health history, the prosecution's expert testimony regarding defendant's mental state, video evidence of the attempted store robbery, and the police interview with defendant shortly after the crimes took place. After considering such evidence, the court expressly stated on the record: '[W]hatever mental or physical condition the defendant may have been suffering from had no bearing whatsoever on his conduct, and therefore, had no ability to reduce his culpability for the crimes he was convicted of in this case.' (Italics added.) Referring to defendant's video interview introduced at trial, the court concluded defendant 'clearly knew exactly what he was doing, he clearly stated during the videotaped event itself that it was clear he was making demands of the clerk, he was trying to prevent [Mr.] Rodriguez from getting involved because he knew exactly what he was doing. He knew it was wrong. He was not operating under anything that would suggest that he did not know what he was doing or that he was under any distress of any type other than he was trying to get some money.' [¶] On this record, the trial court clearly indicated defendant's alleged mental health disorder was not a significant factor in his commission of the charged offenses, making him ineligible for diversion. Thus, remanding the matter to the trial court would be an idle act. [Citations.]" (Jefferson, supra, 38 Cal.App.5th at p. 408.)

People v Camarillo

We reach a different conclusion on Camarillo's claim that the admission of evidence that he consulted with an attorney prior to his arrest was fundamentally unfair and violated his due process rights. Camarillo's Fifth Amendment objection to his prearrest silence cannot be reasonably construed to encompass objections to evidence that he consulted with an attorney. Defense counsel first objected when the prosecutor asked Camarillo if he was telling his side of the story for the first time at court. Defense counsel did not object when Camarillo later answered that he was advised not to do so by an attorney. Defense counsel made a second objection when the prosecutor asked Camarillo if he had an attorney next to him when he was arrested. Camarillo did not specify the basis for this objection, which the trial court sustained. Defense counsel objected a third time when the prosecutor asked Camarillo if, without taking into consideration the reasons for his decision, he declined to tell the police his side of the story following his arrest. Again, defense counsel did not provide a specific basis for this objection, which the trial court overruled. In sum, the record reflects that defense counsel did not specifically object when the prosecutor elicited testimony from Camarillo that his prearrest silence derived from his decision to consult with an attorney.

People v Cowan

Dueñas implicitly recognizes that the severity of civil burdens flowing from the court-imposed criminal debt may trigger heightened scrutiny under Griffin as a form of wealth discrimination. There is nothing particularly novel about this reading of Griffin and its progeny. (E.g., Jones v. Governor of Florida , supra , 950 F.3d at p. 809 ["heightened scrutiny applies in this case because we are faced with a narrow exception to traditional rational basis review: the creation of a wealth classification that punishes those genuinely unable to pay fees, fines, and restitution more harshly than those able to pay"].) In rejecting a broad reading of Griffin , the Hicks court suggests that, to give some defendants but not others relief for inability to pay amounts to a form of " ‘inverse discrimination’ " ( Hicks , supra , 40 Cal.App.5th at p. 327, 253 Cal.Rptr.3d 116, quoting Williams , supra , 399 U.S. at p. 244, 90 S.Ct. 2018 ), but of course the point of heightened scrutiny in equal protection analysis is to recognize and protect against invidious discrimination. Those with the means to pay who are held to that obligation, while others are not, suffer no such discrimination. The factual premises on which the Dueñas court relied have been well-documented. What Hicks dismisses as "language found in ... dicta" in Rivera v. Orange Cnty. Probation Department (9th Cir. 2016) 832 F.3d 1103, 1112, footnote 7 (discussing the "debt trap" that court-imposed fees and fines can lay for indigent populations) and People v. Neal (2018) 29 Cal.App.5th 820, 827–828, 240 Cal.Rptr.3d 629 (describing how court-imposed debt creates a "significant barrier for individuals seeking to rebuild their lives after a criminal conviction") ( Hicks , supra , 40 Cal.App.5th at p. 328, 253 Cal.Rptr.3d 116 ) is broadly supported by a number of judicial opinions, reports from blue chip judicial reform study groups, publications from research centers at leading universities, and a rich field of published w...

People v Yanez

We find no merit in Yanez's contentions. The dates alleged in the indictment controlled what the prosecution was required to prove in their case in chief to convict Yanez of the underlying conspiracy. In Yanez's case, the dates of the conspiracy were not alleged with exactness in the indictment, but exactness is not required under the law. "The precise time at which the offense was committed need not be stated in the accusatory pleading, but it may be alleged to have been committed at any time before the finding or filing thereof, except where the time is a material ingredient in the offense." (§ 955.) In these situations, " '[t]he burden [is] on the People to prove that the offenses occurred within the period of limitation but they are not required to prove the date with exactness. [Citation.] A variance is immaterial unless time is of the essence of the offense. [Citation.] "An immaterial variance should be disregarded [citations]. The test of the materiality of a variance is whether the indictment or information so fully and correctly informs the defendant of the criminal act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of being twice put in jeopardy for the same offense." ' " (People v. Mack (1959) 169 Cal.App.2d 825, 829.) "[W]hen a crime is alleged to have occurred 'on or about' a certain date, it is not necessary for the prosecution to prove the offense was committed on that precise date, but only that it happened reasonably close to that date." (People v. Rojas (2015) 237 Cal.App.4th 1298, 1304.)

In re Fid National Home Warranty Cases

The Fistolera Plaintiffs claim that the trial court erred in dismissing the Fistolera Action for failing to bring the action to trial within five years, as required pursuant to section 583.310. The Fistolera Plaintiffs note that, pursuant to section 583.340, subdivision (c), the trial court was required to exclude from the five-year period that they had to bring the action to trial under section 583.310, any time during which "[b]ringing the action to trial... was impossible, impracticable, or futile." ( § 583.340, subd. (c).) The Fistolera Plaintiffs contend that the trial court erred in failing to exclude 135 days between the date of the assignment of a judge to determine the coordination motion and the date the coordination motion was decided. The Fistolera Plaintiffs maintain that it was impossible or impracticable to bring the Fistolera Action to trial during this period because the law provides that that "no trial may be commenced" in an action that is the subject of a pending petition for coordination. ( Cal. Rules of Court, rule 3.515(i).) The Fistolera Plaintiffs argue that the Fistolera Action would not have been subject to dismissal if the trial court had properly excluded these 135 days from the five-year period. In evaluating the Fistolera Plaintiffs' claim, we must determine whether the trial court abused its discretion in calculating the five-year period under section 583.310 by failing to exclude the 135-day time period during which the petition to coordinate the Kaplan Action and the Fistolera Action was pending. The answer to this question turns primarily on our de novo interpretation of both the relevant provisions of statutory law and the relevant Rules of Court pertaining to coordination petitions. (See Gordon's Cabinet, supra , 74 Cal.App.4th at p. 38, 87 Cal.Rptr.2d 541 [stating that "[t]he resolution of the question of tolling while the coordination petition was pending concerns the construction of statutory matter," and that "[a]s to pure qu...

Moland v McWane

The next morning, February 28, 2012, Bouman and Williams reported several racially motivated incidents to the confidential employee access line. Bouman reported that, since Moreno's termination, Dart, Barhorst, Ellis, and Little treated Moland "unfairly and [spoke] about him in a negative manner . . . . [Dart] attempts to make [Moland's] job miserable, and [Ellis, Barhorst, and Little] fail to comply with [Moland's] orders. Daily since June 2011, [Ellis] reports any behaviors from [Bouman] and Employees which she deems inappropriate to [Dart]. [Bouman] said [Ellis] records conversations between [him, Moland], and other Employees in order to get them in trouble." Bouman further reported that, also since Moreno's termination, Little spoke to Moland in "an angry manner and uses profanity when he speaks with [Moland]. When [Moland] gives [Little] directions on how to paint an item, [Little] responds with phrases such as, 'What the f-ck are you doing over here?' or 'Why are you telling me how to f-ck-ng do my job?' Three times since June 2011, [Little] kicked and shoved equipment and threw equipment around in front of [Bouman] and Employees. In December 2011 (exact day unknown) in an office, [Bouman], John Jackson, and [Ballard] spoke about how some raccoons entered the facility. [Ballard] asked [Jackson and Bouman], 'Don't we have one coon too many in this place?' [Ballard's] comment referred to [Moland], who is African American. During the week of February 12 (exact day unknown), [Barhorst] told [Little], 'I am not going to work for this n-gg-r anymore,' in reference to [Moland]. [Bouman] heard [Barhorst's] statement. During the week of February 26 (exact day unknown) during a break outside the plant, [Little] told [Bouman] about [Moland], 'I would like to shoot the s-n of a b-tch and bury him out in the desert.' [Bouman] said [he] and the Employees cannot properly perform their jobs with the constant negative comments about [Moland] and the fear that [Ellis] will rep...

Siry Investment v Farkhondehpour

Defendants’ conduct was both willful and, worse yet, calculated : They frankly admitted, when opposing Siry’s motion for leave to file a fifth amended complaint, that they had been "evaluat[ing] the risk" that their willful non-compliance might ripen into terminating sanctions vis-à-vis their maximum exposure under the prior complaint(s). "[A] litigant’s conscious decision to deliberately" "evade the discovery process" "based on the perception [that] damages are limited to a particular amount" is inimical to the orderly litigation of disputes. ( Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1, 10, 193 Cal.Rptr.3d 486 ; Electronic Funds , supra , 134 Cal.App.4th at p. 1178, 36 Cal.Rptr.3d 663.) For this reason, Farkhondehpour’s argument that the terminating sanctions are invalid because Siry’s otherwise timely notice fixing the amount of punitive damages was not filed until just before Siry sought terminating sanctions necessarily fails. Further, defendants persisted in their non-compliance despite express warning from the trial court that terminating sanctions were on the horizon. As discussed more fully below, the discovery that defendants steadfastly refused to provide covered a broad swath of issues central to defendants’ liability and the measure of damages. And Siry’s inability to obtain this discovery for the 18-plus months between its propounding and the court’s terminating sanctions order not only deprived Siry of that information, but also left Siry with almost no time on the clock before the three-year period for retrial following remand expired (§ 583.310, subd. (a)(3)). As this analysis indicates, defendants "persist[ed] in [an] outright refusal to comply with [their] discovery obligations," making this one of the "extreme cases" where terminating sanctions were appropriate in the first instance for violation of a court order because issue and evidentiary sanctions would have been ineffectual. ( Deyo , supra , 84 Cal.App.3d at pp. 793, 795, 14...

Escandari v US Bank

Wigod stated a breach of contract claim against the lender based on the lender's promise to offer Wigod a permanent loan modification so long as Wigod complied with the terms of the TPP, and her representations about her eligibility remained true and accurate. (Wigod, supra, 673 F.3d at pp. 560-561.) Although she had performed, the lender had failed to provide a permanent modification. (Id. at p. 561.) The lender argued dismissal of the claim was required because, among other reasons, the TPP was unenforceable—it did not specify the exact terms of the permanent loan modification, including the interest rate, principal balance, loan duration, and the total monthly payment. (Id. at p. 564.) The trial court dismissed Wigod's contract claim, and she appealed. (Wigod, supra, 673 F.3d at p. 555.) The Seventh Circuit Court of Appeals rejected the lender's argument the TPP agreement lacked any definite terms. (Id. at pp. 564-566.) The court reasoned the HAMP guidelines provided the standard by which the ultimate terms of the permanent modification were to be set. The HAMP program directives provided the exact mechanisms for determining borrower eligibility and for calculating modification terms—i.e., the waterfall method and the NPV test. (Id. at p. 565.) "[T]he TPP fairly implied that any deviation from [the TPP] in the permanent [modification] offer [was] also [to] be based on ... the established HAMP criteria and formulas." (Ibid.) Thus, because Wigod had fulfilled the TPP's conditions, the lender was obligated to offer "some sort of good-faith permanent modification to Wigod consistent with HAMP guidelines." (Ibid.) The court concluded the terms of the TPP were clear and definite enough given the HAMP criteria and formulas to support the breach of contract theory. (Id. at pp. 565-566.)

Callahan v Ami Adini and Associates

It was undisputed that AAA is a closely held corporation. Adini founded AAA and was a co-owner, director, and its principal shareholder. Balas was AAA's co-owner, an officer, and director of AAA. He was also a signatory on AAA's bank account, and made all decisions jointly with Adini. Callahan cited no authority to support the proposition that these facts, standing alone, will support alter ego liability. Rather, to show a unity of interest there must be additional evidence, such as: commingling of personal and corporate funds or assets; treatment by an individual of the assets of the corporation as his or her own; the failure to obtain authority to issue stock or to subscribe to or issue the same; the holding out by an individual that he or she is personally liable for the debts of the corporation; the failure to maintain minutes or adequate corporate records; the failure to adequately capitalize a corporation; the total absence of corporate assets, and undercapitalization; the use of a corporation as a mere shell, instrumentality or conduit for a single venture or the business of an individual or another corporation; the concealment and misrepresentation of the identity of the responsible ownership, management and financial interest, or concealment of personal business activities; the disregard of legal formalities and the failure to maintain arm's length relationships among related entities; the use of the corporate entity to procure labor, services or merchandise for another person or entity; the diversion of assets from a corporation by or to a stockholder or other person or entity, to the detriment of creditors; or the use of a corporation as a subterfuge of illegal transactions. (See Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 811-812.)

Arriaga v Lara

On summary judgment, the evidence relied on by the parties in support of or opposition to the motion must be admissible. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 542.) It is also "well-established that 'a party cannot create an issue of fact by a declaration which contradicts his prior discovery responses.' [Citations.] In determining whether any triable issue of material fact exists, the trial court may give 'great weight' to admissions made in discovery and 'disregard contradictory and self-serving affidavits of the party.' [Citation.] Our Supreme Court has explained that such admissions 'have a very high credibility value,' particularly when they are 'obtained not in the normal course of human activities and affairs but in the context of an established pretrial procedure whose purpose is to elicit facts.' [Citation.] 'Accordingly, when such an admission becomes relevant to the determination, on motion for summary judgment, of whether or not there exist triable issues of fact (as opposed to legal issues) between the parties, it is entitled to and should receive a kind of deference not normally accorded evidentiary allegations in affidavits.' [Citation.] Where a declaration submitted in opposition to a motion for summary judgment motion clearly contradicts the declarant's earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and ' "conclude there is no substantial evidence of the existence of a triable issue of fact." ' " (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087.)

People v Purnell

Purnell urges us to order the trial court to require broad disclosures pursuant to section 832.7, subdivision (b)(1)(C), which statute was amended by Senate Bill No. 1421 (2017-2018 Reg. Sess.), effective January 1, 2019. (Stats. 2018, ch. 988, § 2) Senate Bill No. 1421 designated as three types of peace officer records (not at issue here) as nonconfidential: records relating to the discharge of a firearm at or use of force resulting in death or great bodily injury against a person; records relating to an incident in which a sustained finding is made that an officer engaged in sexual assault against a member of the public; and records relating to an incident in which a sustained finding is made of a peace officer's dishonesty. (Association for Los Angeles Deputy Sheriffs v. Superior Court, supra, 8 Cal.5th at p. 46.) However, section 832.7, subdivision (g), provides, "This section does not affect the discovery or disclosure of information contained in a peace or custodial officer's personnel file pursuant to Section 1043 of the Evidence Code." Similarly, section 832.7, subdivision (h), provides, "This section does not supersede or affect the criminal discovery process outlined in Chapter 10 (commencing with Section 1054) of Title 6 of Part 2, or the admissibility of personnel records pursuant to subdivision (a), which codifies the court decision in Pitchess v. Superior Court (1974) 11 Cal.3d 531." As the Supreme Court observed in Association for Los Angeles Deputy Sheriffs, after quoting section 832.7, subdivisions (g) and (h), "It may be that Senate Bill 1421 does not expand the set of information that a criminal defendant is entitled to receive through the Pitchess process, an issue on which we need take no position here." (Association for Los Angeles Deputy Sheriffs, at p. 46.) We likewise do not reach whether Senate Bill No. 1421 has expanded the scope of disclosures in response to a Pitchess motion, which is not yet before us on appeal given the trial court's ...

People v Ramirez

The trial court relayed a warning through a police officer to the effect that Ramirez was required to show up in court in 15 minutes or the trial would proceed without him. However, Ramirez was under the influence of heroin, a potent drug (his mother said he was "nodding out" and "unresponsive") and defense counsel pointed out Ramirez suffered from learning disabilities. Given the undeveloped record in the absence of a hearing, it remains unclear whether Ramirez understood the warning or was in any condition to do anything about it. His subsequent absence therefore cannot be said to represent a knowing, intelligent, and voluntary waiver of his constitutional and statutory rights to be present at his own trial. The trial court also noted that Ramirez refused medical treatment at home from paramedics, but the record shows that paramedics were with Ramirez for approximately two hours until his mother drove him to the emergency room. Again, in the absence of a hearing, it is unclear whether Ramirez refused all forms of assistance from paramedics or merely refused transport to the hospital by ambulance. Similarly, we do not know what, and how much, assistance the paramedics actually rendered. The majority indulges in conjecture about Ramirez's levels of intoxication and comprehension, as well as his medical condition and the necessity of treatment, since these issues are not clarified in the undeveloped record. The majority's efforts serve only to underscore the limited nature of the record and highlight the critical importance of a hearing to ascertain the relevant facts. In the absence of a hearing, the court was reduced to speculation. In sum, the trial court did not have the requisite information to make a ruling affecting Ramirez's most basic constitutional rights and the fairness of the proceedings in a case that resulted in a felony, and a strike, conviction.Notably, the court did not hold a hearing even to consider the comprehensive testimony of the police offic...

People v Reddick

The Court of Appeal for the Fourth Appellate District considered "how the Bruner 'but for' test should be applied when a defendant engages in a course of illegal conduct, such as drunk driving, that encompasses certain independent acts, none of which would be illegal per se, but each of which happens to be a separate ground for a parole violation, such as driving (without parole officer permission), or consuming alcoholic beverages in any amount" in People v. Stump (2009) 173 Cal.App.4th 1264, 1271. The defendant in Stump violated the terms of his parole in three ways: (1) by driving under the influence of alcohol or drugs; (2) by violating a special condition prohibiting alcohol consumption; and (3) by violating a special condition prohibiting the operation of a motor vehicle without a parole officer's approval. (Id. at p. 1267.) The court found that the defendant had not shown that "but for" having driven under the influence of alcohol, he would not have been held in custody for the period in question. (Id. at p. 1266.) The court explained: "In the case before us, the conduct for which defendant was arrested gave rise to two drunk driving charges (violations of Veh. Code, § 23152, subds. (a), (b).) It is not the case that 'but for' a drunk driving charge defendant would have been free of parole revocation custody. He still would have been held for driving, which is not necessarily a crime in and of itself but may be, and was here, a parole violation. Likewise, he still would have been held for consuming alcohol, which is not necessarily a crime in and of itself but may be, and was here, a parole violation. [¶] [] 'section 2900.5 did not intend to allow credit for a period of presentence restraint unless the conduct leading to the sentence was the true and only unavoidable basis for the earlier custody.' (Bruner, supra, 9 Cal.4th at p. 1192.) Here, the conduct of driving under the influence of alcohol, for which defendant was sentenced in the underlying action, wa...

People v Pinaire

Government Code section 70372 (state court construction penalty) was added in 2002 (Stats. 2002, ch. 1082, § 4) and went into effect January 1, 2003. (See Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) In People v. High (2004) 119 Cal.App.4th 1192 (High), the Court of Appeal, Third District, stated, "Although the Legislature enacted Government Code section 70372 as a method of increasing the funds available to remodel, renovate and construct new state court facilities, the structure, operative principle, and descriptive language chosen reflect[ed] a penal purpose as well." (Id. at p. 1198.) The appellate court reasoned: "[T]he state court facilities construction penalty is calculated on 'every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses' at [a specified] rate . . . . The penalty imposed tracks the seriousness of the underlying offense and its base penalty. The prospect of its imposition therefore has a similar deterrent effect to that of punitive statutes generally. It thereby ' "promote[s] the traditional aims of punishment—retribution and deterrence." ' [Citations.]" (Id. at pp. 1198-1199.) The court concluded that the Legislature intended the penalty mandated by Government Code section 70372 to be punitive (High, supra, at pp. 1198-1199) and therefore the state court construction penalties imposed on two counts had to be stricken because the law authorizing those penalties was ex post facto as to those crimes. (Id. at pp. 1195, 1199, 1201.)

Vega v Farmers Insurance Group

Additionally, plaintiff's summary judgment opposition submissions do not raise a triable issue of fact as to whether plaintiff justifiably relied on the alleged misrepresentations, and whether that reliance resulted in damages. Based on his declaration, plaintiff consulted with Moreno after each occasion when Bear made the alleged misrepresentations. Plaintiff stated in his declaration that he "believed [Bear] to know that his allegations were true, why would he tell me if this was not true?" However, plaintiff also stated that he told Bear he trusted Moreno. Plaintiff stated, "Believing Mr. Bear I became irritated and upset I was driving uninsured since August 2013 and my 2004 Corvette policy had been reinstated one day prior to my loss October 22, 2013 and Ms. Moreno had not informed me of this information Mr. Bear was certain of." Faced with Bear's alleged misrepresentations, plaintiff told Bear to call Moreno. Plaintiff also told Bear he planned to call Moreno as soon as possible, which he did. Plaintiff was reassured by Moreno that his coverage was active and that Bear and his supervisors were incorrect. Moreno calmed plaintiff down and reassured him he had coverage on all of his vehicles. Plaintiff agreed to let Moreno deal with Bear. After speaking with Bear, Moreno called plaintiff and told him to allow the process to continue. When Bear again called plaintiff and claimed that Moreno issued fraudulent policies, plaintiff told Bear to contact Moreno. Plaintiff called Moreno and told her Bear was making the same allegations. Plaintiff told Moreno to "try to figure it out as best she can." The next day, Moreno called plaintiff and again explained to him Bear and his supervisors were wrong. Moreno told plaintiff "she was assured by Mr. Bear they would be paying [his] claim and the check would most likely be paid to her. [Plaintiff] told her whatever they wrote on the check was fine with [him] as long as they stop making false allegations." Additionally, accordi...

Lewis v RDM Management

As the Evans court explained in finding the trial court properly instructed the jury on the standard for professional negligence for a claim arising from the laying and repairing of gas pipelines, "[T]he scope of those held to a 'professional' standard of care—a standard of care similar to others in their profession, as opposed to that of a 'reasonable person'—is broad enough to encompass a wide range of specialized skills. As a general matter, '[t]hose undertaking to render expert services in the practice of a profession or trade are required to have and apply the skill, knowledge and competence ordinarily possessed by their fellow practitioners under similar circumstances, and failure to do so subjects them to liability for negligence.'" (Evans, supra, 5 Cal.App.5th at pp. 1050, 1052 [trial court correctly instructed jury with CACI No. 600 regarding professional standard of care for negligence claim given extensive evidence "about the very specialized profession of building and repairing gas pipelines"]; see Miller v. Los Angeles County Flood Control Dist. (1973) 8 Cal.3d 689, 702-703 (Miller) [expert testimony required to establish standard of care for builder that constructed home that was later flooded because "average layman has neither training nor experience in the construction industry and ordinarily cannot determine whether a particular building has been built with the requisite skill and in accordance with the standards prescribed by law or prevailing in the industry" (fn. omitted)]; cf. Ryan v. Real Estate of the Pacific, Inc. (2019) 32 Cal.App.5th 637, 646 [expert testimony was not necessary for negligence claim against real estate broker who failed to disclose planned remodel of neighbor's home that would obstruct views and home's value because anyone "who hired a real estate broker to sell her home, would expect that broker to share information that would adversely impact the value of the home"]; Massey, supra, 180 Cal.App.4th at p. 696 [expert test...

People v Avilez

Herring was decided after Willis and articulated the operative federal constitutional standard to determine whether the exclusionary rule applies when an officer conducts a search or arrest based on erroneous information. (Herring, supra, 555 U.S. at pp. 136-137.) In contrast to Willis, Herring did not apply the exclusionary rule based on whether the source of the erroneous information was "an adjunct to law enforcement" or a court employee. Indeed, the erroneous information in Herring was apparently made by a clerk with the sheriff's department. (Ibid.) Herring cited to the extensive evidence introduced about the source of the error, and held that evidence should only be suppressed when, under an objective standard of deterrence and culpability involving a reasonably well-trained officer, the police have engaged in "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." (Id. at pp. 144-145.) However, "when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not 'pay its way.' [Citation.] In such a case, the criminal should not 'go free because the constable has blundered.' [Citation.]" (Id. at pp. 147-148.)

People v Davis

We begin with defendant's argument that his due process rights were violated by the court's reliance on a probation report that contained material errors. Defendant asserts that a new probation report must be prepared because (1) the factual summary erroneously relied on pretrial investigative reports and C.D.'s claims that he was sexually assaulted, and failed to include defendant's trial testimony that the sexual acts were consensual, and also failed to state that the jury did not believe C.D.'s trial testimony since it found defendant not guilty of the sexual assault charges; (2) the probation report erroneously calculated his recommended sentence by using counts 1 and 2, the forcible sodomy charges that he was acquitted of; and (3) the probation report was incomplete because the probation officer found no mitigating circumstances and failed to interview defendant because of alleged " 'time constraints and work load,' " concedes there is no statutory requirement for such an interview, but asserts the probation officer could have developed mitigating circumstances if the officer talked to defendant, learned about his trial testimony, and reported the physical assault resulted from a disagreement about stolen property and racial slurs, and was not the result of a forcible sexual assault.

People v Caminero Wang

Here, in light of the other instructions given, the trial court’s omission of CALJIC No. 8.42 neither improperly lowered the prosecution’s burden of proof nor effectively invalidated the jury’s findings. We therefore conclude that the court’s failure to instruct with CALJIC No. 8.42 as to count 2—while erroneous—is amenable to harmless error review. And even under the more stringent Chapman standard, we find the error to be harmless beyond a reasonable doubt. The jury in this case was instructed pursuant to CALJIC No. 8.20 that "[i]f you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation , it is murder of the first degree." (Italics added.) The charge also defined second degree murder as an unlawful killing of a human being with malice aforethought where "the evidence is insufficient to prove deliberation and premeditation." ( CALJIC No. 8.30.) Thus, in convicting appellant of first degree rather than second degree murder, the jury necessarily found the evidence sufficient to establish premeditation and deliberation, and also must have rejected the notion that appellant formed the intent to kill "under a sudden heat of passion or other condition precluding the idea of deliberation." "It is well established that ‘[e]rror in failing to instruct the jury on a lesser included offense is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.’ " ( People v. Lancaster (2007) 41 Cal.4th 50, 85, 58 Cal.Rptr.3d 608, 158 P.3d 157 ; see Franklin , supra , 21 Cal.App.5th at p. 894, 230 Cal.Rptr.3d 647 ; People v. Speight (2014) 227 Cal.App.4th 1229, 1245–1246, 174 Cal.Rptr.3d 454.) Here, because th...

People v Herrera

Regarding the potential defense rebuttal, the trial court explained that defense counsel should "make sure . . . [to] have [a] conversation with [his expert] about what the potential testimony may be, such that, when you've heard the evidence or testimony, you can be prepared to respond as to what your expert would likely be able to testify to that is relevant." The trial court cautioned defense counsel: "What I'm not comfortable with is [the] People putting on their witness at this point and then hearing from the defense that, well, we need a week or, you know, an extended period of time for the purpose of response. [¶] I certainly understand that witnesses, doctors in particular, are very difficult to wrangle because they have patients. They have other business. . . . [¶] But that is something that, because we have this week off, that's going to be on you, [defense counsel], to make sure you've had that conversation with the physician and make sure they understand they need to be available. . . . on Tuesday[, April 19,] . . . at the earliest. . . . but no later than . . . Wednesday morning to be ready to go. But certainly have your folks ready, I would say at this point, by Tuesday, and have them ready to testify. [¶] So that means if -- once you hear from the People's expert, you can have whatever conversation you need to have with your expert over Monday night so that on Tuesday morning when I turn to your case, you'll be ready to proceed with that witness. So I'm just indicating to you at this point what the Court's expectation is going to be with regard to the week of April 18th."

People v Martinez 1

In Duenas, supra, 30 Cal.App.5th at pages, 1160-1161, defendant was a married mother of two who suffered from cerebral palsy and was unemployed, homeless, and living on public assistance. As a juvenile, she suffered three juvenile citations and because she could not pay the $1,088 in fines, her driver's license was suspended. (Id. at p. 1161.) She subsequently suffered three misdemeanor convictions for driving on a suspended license, and another conviction, and because she could not afford to pay those fines, she served jail time, but she remained liable for court fees and attorney fees. (Ibid.) After she suffered a fourth conviction for driving on a suspended license and could not obtain a driver's license by the time of the sentencing hearing, the trial court suspended the sentence and placed her on three years of probation on the condition she serve 30 days in jail and pay $300, plus a penalty and assessment, or that she serve an additional nine days in jail. (Id. at p. 1162.) Defendant's counsel indicted she did not have the ability to pay, and the court ordered her to serve the additional nine days. The court also imposed a $30 court facilities assessment fee (Govt. Code, § 70373), a $40 court operations assessment fee (§ 1465.8), and a $150 restitution fine (§ 1202.4). (Dueñas, supra, 30 Cal.App.5th at p. 1162.) Defendant requested an ability to pay hearing for the prior court and attorney fees. (Ibid.) At the ability to pay hearing, the court concluded she lacked the ability to pay the attorney fees and waived them. (Id. at p. 1163.) However, the court stated the $30 court facilities assessment fee (Govt. Code, § 70373), and $40 court operations assessment fee (§ 1465.8) were both mandatory regardless of her ability to pay. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) In doing so, the court rejected her claim due process and equal protection required the court to consider her ability to pay. (Ibid.) As to the $150 restitution fine (§ 1202.4), the court conclu...

People v Newbold

Appellant also relies on People v. Dellinger (1984) 163 Cal.App.3d 284, 301, in which the appellate court concluded that one basis, among several, to reverse a judgment of conviction on second degree murder was the trial court's failure to give a unanimity instruction. The appellate court recognized that "[m]ost of the reported cases involving multiple criminal acts by a defendant [in which courts have held a unanimity instruction was required] also involve potential multiple offenses." (Ibid.) Nevertheless, without citing authority, the appellate court held a unanimity instruction was required even though "there was only one offense and one victim but there were several hypotheses as to which act or acts caused [the victim's] death[, either blunt force trauma to the head or forced ingestion of cocaine]." (Ibid.) "As long as there are multiple acts presented to the jury which could constitute the charged offense, a defendant is entitled to an instruction on unanimity." (Ibid.) Dellinger supports appellant's position. Dellinger also, however, conflicts with more recent Supreme Court authority (e.g., People v. Russo (2001) 25 Cal.4th 1124, 1132 ["where the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty").] For this reason and because Dellinger failed to cite any authority for its holding, we will not follow it.

People v Marroquin

Asked whether he was familiar with a certain Tulare County Sheriff's department case involving an assault with a deadly weapon on August 14, 2009 involving a person named Daniel Mendoza, Sergeant Delacruz said he was. He had not worked on the case himself, but he had spoken with officers who did and had the opportunity to review the case and the gang information related to it. On August 14, 2009, a Southern gang member was with his family when he "mad-dogged" a Northern gang member. A fight was about to start, and the Southern gang member's sister called for their father. The father tried to jump in and stop the fight and a Northern gang member stabbed the father. The gang words "ETZ, Earlimart Tulare County, 14" were yelled during the commission of the crime. The record of conviction admitted into evidence showed Rutilio Garcia and Daniel Mendoza were charged with assault with a deadly weapon for this incident, but the record shows that only Rutilio Garcia was convicted. It is unclear whether Mendoza was convicted. Garcia plead guilty to the substantive offense and admitted a section 186.22, subdivision (b) enhancement that the crime was committed for the benefit of a criminal street gang. Sergeant Delacruz said Mendoza was a Northern gang member at the time the crime was committed and said he "believed" Mendoza was specifically with the Earlimart, Tulare County subset. Sergeant Delacruz was not asked about Garcia's gang affiliation.

People v Gomez

In evaluating the sufficiency of the evidence, " 'we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] "Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" [Citation.] A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support' " the jury's verdict.' [Citation.]" (People v. Penunuri (2018) 5 Cal.5th 126, 142.)

Medical Marijuana v Projectcbdcom

In considering a claim for libel, a court examines the totality of the circumstances, including the context in which the statement was made. ( Baker, supra , 42 Cal.3d at pp. 260–261, 228 Cal.Rptr. 206, 721 P.2d 87.) Thus, when analyzing whether a particular publication or statement is defamatory, "[t]he publication in question may not be divided into segments and each portion treated as a separate unit; it must be read as a whole in order to understand its import and the effect that it was calculated to have on the reader, and construed in the light of the whole scope and apparent object of the writer, considering not only the actual language used, but the sense and meaning that may be fairly presumed to have been conveyed to those who read it. [Citation.]" ( Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d 1123, 1131, 212 Cal.Rptr. 838.) In addition, falsity cannot be shown if the statement at issue appears substantially true : "To bar liability, ‘ "it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details." [Citations.] ... [Citation.] ... Minor inaccuracies do not amount to falsity so long as "the substance, the gist, the sting, of the libelous charge be justified." [Citations.] Put another way, the statement is not considered false unless it "would have a different effect on the mind of the reader from that which the pleaded truth would have produced." [Citations.]’ [Citation.]" ( Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1021, 26 Cal.Rptr.3d 350 ( Vogel ), italics omitted.) Starting as we must with the pleading, which provides the outer boundaries of the issues that are to be addressed in an anti-SLAPP motion (see Paulus, supra , 139 Cal.App.4th at p. 672, 43 Cal.Rptr.3d 148 ), we begin with the statement in the second amended complaint that the Hemp Oil Hustlers Article "claimed the existence of evidence that RSHO was contaminated with heavy metals and solvents without verifying the accurac...

In re SS

Mother also asked for additional services because "[s]he very much wants to reunite." She and father had been "doing really well" at the time of the six-month review hearing, but "they hit a few obstacles" including becoming homeless and having transportation issues. The parents' automobile had been stolen, and they were living in another automobile given to them by a family member. Mother had informed the social worker of these issues. Mother was now employed and continued to visit, despite the caregivers' discouraging comments, which were a "slap in the face" considering "she was doing the best that she could, given the limited means that she had." The child appeared to enjoy herself and was bonded with the parents during visits. Mother said the missed visits during the reporting period were the result of her homelessness and transportation issues and, although she tried to reach out to the caregivers, "they were not willing to work with her for scheduling visits." She also argued the caregivers were motivated to report the child having behavioral issues after visits, but those reports were not consistent with reports from the child's daycare that it was the caregivers who were spoiling the child. Mother suggested the child's behavior had more to do with the lack of boundaries in the caregivers' home. Mother had tested negatively for drugs, but she had difficulty continuing to appear for random test because of her work schedule and limited means. Mother argued she was engaged in counseling and had not stopped engaging in services. Although she had not yet completed her case plan, she was willing to do so. Mother argued there was a likelihood the parents could reunify with the child if they were provided additional services. Therefore, she asked for additional services and makeup visits because the child had been away on vacation with the caregivers and, like father, she asked for on-demand drug testing.

People v Belyew

We conclude that the trial court did not err in denying defendant's Pitchess motion. While defendant was not required to present a factual scenario that was reasonably likely to have occurred or was credible or even believable, (Warrick, supra, 35 Cal.4th at pp. 1025-1026), she was required to give some plausible alternative factual account that, if true, showed that the police report identifying her as the perpetrator of the attack on the victim was inaccurate. The critical problem with defendant's motion is its failure to provide a plausible explanation of events in which the victim could have sustained the puncture wound to his chest by someone other than her. She did not articulate a specific and tailored factual scenario explaining how the version of events set forth in the police report was inaccurate. In short, she failed to offer a plausible factual foundation for the alleged officer misconduct. We note that, although defendant claimed that the victim's statement at the scene identifying her as the perpetrator of the stabbing was coerced through excessive force, the police reports attached to her Pitchess motion show that the victim also identified her as the perpetrator during his police interviews at the hospital, which occurred on the date of the stabbing and the following day. Defendant made no claim that the statements the victim made at the hospital were coerced. Further, the victim did not submit a declaration in support of the Pitchess motion averring that any officer used excessive force to coerce him into identifying defendant as the perpetrator, either at the scene or later at the hospital. Finally, while defendant averred that the police report showed that the officers used "excessive and illegal use of force" in detaining the victim, the police reports attached to defendant's motion clearly state that the victim identified defendant as the perpetrator prior to being taken to the ground and detained in handcuffs. On this record, we cannot conclu...

In re AE

Victim 1 told the interviewer that the final incident with appellant occurred when she was in her grandmother's garage with appellant. It was summertime, and she believed she was finishing third grade. Their grandmother sent them to the garage to collect old toys for a yard sale. When they were alone in the garage, appellant pulled down his pants and he started touching himself by moving his hand up and down. She told him to pull up his pants, which he did. He started to kiss her with his tongue in her mouth, and she pushed him away. She told him she was going to tell their grandmother and his father if he kept doing this. According to Victim 1, appellant said, "Are you serious you're gonna [sic] snitch?" She told him "this is bad" and "you took advantage of me and you told me we were just playing games." Appellant laughed and said, "I can't believe you're finally noticing it. You think you're all good now just [because] you're gonna [sic] be a fourth grader, huh?" When appellant tried to kiss her, she threatened to scream, and appellant said, "No, you can't do that. You know how much trouble I'll get in?" Appellant asked Victim 1 if she was going to report what happened, and she promised not to say anything if he promised not to play these games with her sisters. Appellant promised to stop.

Citizens for a Responsible Caltrans Decision v Department of Transportation

The PWP includes a wide range of proposed projects for the NCC. Although one of the PWP's proposed projects were improvements to the I-5/SR 56 interchange, the PWP listed a number of alternatives and did not select or set forth any specific location or plan for any of those alternative improvements. Therefore, because the PWP did not include the Project, as defined in the FEIR, CCC's certification or approval of the PWP did not include the Project. More importantly, Public Resources Code sections 21080.5 and 21080.9, as referenced in section 103, address the CCC's regulatory program for LRDP's, and thus the PWP , and do not , expressly or implicitly address Caltrans's obligation to prepare and circulate an EIR for the Project before approving the Project. If, as Caltrans argues, the Legislature had intended section 103 to exempt Caltrans from preparing and circulating an EIR for the Project, the Legislature presumably would have made that intent clear by expressly providing for such an exemption. By not expressly exempting from CEQA Caltrans's approval of the Project while doing so for the CCC's certification or approval of the PWP, we infer the Legislature did not intend to exempt Caltrans's approval of the Project. When the Legislature creates an express exemption from CEQA for a certain plan or project, we cannot infer it also intended to create other exemptions not expressly stated. (Cf. Wildlife Alive , supra , 18 Cal.3d at p. 195, 132 Cal.Rptr. 377, 553 P.2d 537 ["where exceptions to a general rule are specified by statute, other exceptions are not to be implied or presumed"]; City of Coronado v. California Coastal Zone Conservation Com. (1977) 69 Cal.App.3d 570, 580, 138 Cal.Rptr. 241 ["[w]hen a statute expresses certain exceptions to a general rule, other exceptions are necessarily excluded"].) Furthermore, had the Legislature intended to exempt the Project from CEQA's requirements, it presumably knew how to do so by expressly setting forth such an intent. ...

Swallow v Roberts

Another important form of injury is present here. Statutes that criminalize unauthorized access to confidential or private information have at their core the principle that such access causes injury through an invasion of privacy. (See Pen. Code, § 502, subd. (a) ["The Legislature further finds and declares that protection of the integrity of all types and forms of lawfully created computers, computer systems, and computer data is vital to the protection of the privacy of individuals as well as to the well-being of financial institutions, business concerns, governmental agencies, and others"].) In this respect, the unauthorized access to computerized data prohibited by Penal Code section 502 is similar to the unauthorized monitoring or recording of private telephone communications prohibited by the statutes at issue in Ribas and Kimmel. (See Pen. Code, § 630 ["The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society"].)

In re DH 1

D.H. claims that the juvenile court had no authority to increase his maximum term of confinement from the one originally imposed in 2015 because, under section 731, his sentence was required to be based on the facts and circumstances existing at the time of the original violation. We reject his interpretation of the statute. Subdivision (c) of section 731 provides that a juvenile court must set a maximum term of confinement when committing a ward to DJJ that does not exceed "the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense." The provision further states that the court must set the maximum term at or below this ceiling "based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the court and as deemed appropriate to achieve rehabilitation." (Ibid.) This broad language does not limit the juvenile court to consideration of only the facts and circumstances surrounding the specific probation violation at issue but encompasses all of the facts and circumstances of the section 602 "matter" as a whole. (See §§ 706, 725.5 [juvenile court shall consider "relevant and material evidence" at 602 disposition]; Robert H., supra, 96 Cal.App.4th at p. 1329 [juvenile court required to consider " 'the broadest range of information' " when crafting a dispositional order].) Thus, it was well within the juvenile court's discretion to consider D.H.'s current circumstances, including his previous commitment history at DJJ, when setting his maximum term of confinement at his 2017 dispositional hearing.

People v Lopez 6

Defendant's opening brief factually distinguishes this case from Dillon , Anderson , and People v. Vizcarra (1980) 110 Cal.App.3d 858, 168 Cal.Rptr. 257, each of which involved would-be robbers who, in defendant's words, reached "the immediate vicinity of the location" of the intended crime. In Anderson , where the California Supreme Court first adopted the slight acts rule, the brandishing of a firearm roughly two feet away from a theater's ticket window was held to constitute attempted robbery. However, the high court described the appellant's "conduct in concealing the gun on his person and going to the general vicinity" of the theater as "mere acts of preparation." ( Anderson, supra , 1 Cal.2d at p. 690, 37 P.2d 67.) In Vizcarra , the appellant's movement toward a liquor store while armed with a rifle was deemed "a sufficient direct act toward the accomplishment of the robbery" in light of his effort to "hide on the pathway immediately adjacent to the liquor store when observed by a customer." ( Vizcarra, supra , 110 Cal.App.3d at p. 862, 168 Cal.Rptr. 257.) In Dillon , the appellant committed attempted robbery by breaching the outer perimeter of a marijuana farm—which he knew to be guarded—while he and his accomplices were in possession of "guns, knives, clubs, masks, rope, and strips of sheeting." ( Dillon, supra , 34 Cal.3d at pp. 455–456, 194 Cal.Rptr. 390, 668 P.2d 697 ; see id. at p. 451, 194 Cal.Rptr. 390, 668 P.2d 697.) Defendant claims he did not get close enough to the targeted houses to commit attempted home invasion robbery. In response, the People rely on the slight acts rule and characterize the "general vicinity" statement in Anderson as obiter dictum. ( Anderson, supra , 1 Cal.2d at p. 690, 37 P.2d 67 ; see Childers v. Childers (1946) 74 Cal.App.2d 56, 61, 168 P.2d 218 ["There is no kinship between stare decisis and obiter dictum. Whatever may be said in an opinion that is not necessary to a determination of the question involved is to be regard...

People v Quintanilla

In People v. Banos (2009) 178 Cal.App.4th 483, 100 Cal.Rptr.3d 476 ( Banos ), which was decided before the enactment of Evidence Code section 1390, the court applied the forfeiture by wrongdoing doctrine in a domestic violence case resulting in murder. In Banos , the defendant was convicted of murdering his ex-girlfriend, after he admitted to killing her by breaking into her home and hitting her in the head with a hammer. ( Id. at pp. 485, 490, 100 Cal.Rptr.3d 476.) Banos held that testimonial out-of-court statements by the ex-girlfriend to police officers about the defendant's domestic abuse were admissible under the forfeiture by wrongdoing doctrine because the evidence supported a finding that the defendant killed his ex-girlfriend to prevent her from cooperating with authorities and testifying in court. ( Id. at p. 502, 100 Cal.Rptr.3d 476.) In the 10 months prior to the killing, defendant was arrested three times based on the ex-girlfriend's complaints to police. ( Id. at p. 486, 100 Cal.Rptr.3d 476.) The court explained, "At the time of [the ex-girlfriend's] death, there was pending a hearing on defendant's violation of the restraining order. That defendant killed [the ex-girlfriend] to stop her from testifying against him at the hearing is supported by evidence that he was arrested multiple times at [the ex-girlfriend's] apartment by police responding to a call about violation of a court order and domestic violence. The trial court reasonably could have found that defendant knew he would be prosecuted for these actions and that [the ex-girlfriend] would testify at those proceedings. Substantial evidence also supports the implied finding that once defendant broke into [the ex-girlfriend's] home on April 10th [where he killed her on that day], he knew that criminal proceedings would be commenced and as she had cooperated with the police before, [the ex-girlfriend] was likely to testify at those proceedings." ( Id. at p. 503, 100 Cal.Rptr.3d 476, fn.omitted.) F...

County of Kern v Alta Sierra Holistic Exchange Service

The adoption of a material-change-in-circumstances restriction raises other legal questions. First, we define the term "material." The ordinary meaning of the adjective "material" is "[o]f such a nature that knowledge of the item would affect a person's decision-making; significant; essential." (Black's Law Dict. (8th ed. 2004) p. 998.) We conclude this definition, with the addition of an objective standard, is appropriate for a restriction protecting the referendum power. Thus, whether the change in circumstances amounts to a material change is determined by considering the effect on the decision-making of an objectively reasonable person. If an objectively reasonable person would consider the new circumstances significant or important in making a decision about the subject matter of the ordinance, the change in circumstances is material. Second, we consider the appropriate scope of inquiry—that is, which circumstances should be considered in determining whether a material change has occurred. One possibility is to identify specific factors or indicia and limit the inquiry to those factors. (E.g. Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531–532, 173 Cal.Rptr.3d 332, 327 P.3d 165 [identifying the primary factor and eight secondary indicia in the test for an employment relationship].) Another possibility it to require an evaluation of the totality of the circumstances, which would require the court to determine the relevancy of a particular change and its weight on a case-by-case basis. In T.C.E.F. , this court concluded "the totality of the circumstances" is the proper scope of inquiry for analyzing the "practical effect" of the board of supervisor's additional action on the subject matter of the protested ordinance. ( T.C.E.F., supra , 246 Cal.App.4th at p. 323, 200 Cal.Rptr.3d 714.) Here, we conclude the totality of the circumstances properly defines the scope of the inquiry into changes that have occurred since the defeat of a measure thr...

Humboldt County Department of Health and Human Services v EJ In re WB

As relevant to this appeal, California Rules of Court, title 5, division 3, chapter 4, entitled "Subsequent Petitions and Modifications," contains California Rules of Court, rule 5.565. Rule 5.565(e)(2) provides: "The procedures relating to disposition hearings prescribed in chapter 12, article 3 apply to the determination of disposition on a subsequent or supplemental petition." Chapter 12, article 3 of California Rules of Court, title 5, division 3 (hereafter chapter 12, article 3), is entitled "Disposition" and contains rules 5.690 and 5.695. California Rules of Court, rule 5.695(d) expressly requires courts to "consider whether reasonable efforts to prevent or eliminate the need for removal have been made" and issue a finding as to whether such efforts have been made. But this rule is silent as to how the court's finding impacts removal of a minor. Accordingly, rule 5.695(d) must be interpreted in connection with 5.695(c), which provides how reasonable efforts may impact removal. Specifically, that subdivision states: "The court may not order a dependent removed from the physical custody of a parent or guardian with whom the child resided at the time the petition was filed, unless the court makes one or more of the findings in section 361[, subdivision] (c) by clear and convincing evidence." (Cal. Rules of Court, rule 5.695(c).) Section 361, subdivision (c) then provides in relevant part: "A dependent child shall not be taken from the physical custody of his or her parents, guardian or guardians, or Indian custodian with whom the child resides at the time the petition was initiated, unless the juvenile court finds clear and convincing evidence . . . [¶] (1) There is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's,...

People v Henderson 1

As to prejudice, defendants argue the prosecutor's argument affected the fundamental guarantee of due process and a fair trial in that it diluted the People's burden of proof by suggesting that if the shooting was intentional, it was necessarily premeditated and deliberate. The contention goes to whether the prosecutor's argument was misconduct by misstating the law on premeditation and deliberation, not whether it is reasonably probable the jury would have reached a different conclusion absent the assertedly improper statements. And, we do not see the prosecutor's challenged assertions as trivializing or impacting the burden of proof, on which the court repeatedly and correctly instructed the jury. Defendants suggest the prosecutor's argument and the reaction to it by defense counsel and the court is akin to what occurred in People v. Centeno, supra , 60 Cal.4th 659, 180 Cal.Rptr.3d 649, 338 P.3d 938. In Centeno , involving a prosecutor's misleading hypothetical using an image of the state of California and repeated use of the word "reasonable," the court held it is error to suggest the prosecution's burden of proof is satisfied if the prosecution's evidence presents a reasonable account. ( Id. at pp. 670, 672, 180 Cal.Rptr.3d 649, 338 P.3d 938.) The court explained a prosecutor may not argue that deficiencies in the defense evidence can make up for shortcomings in the prosecution's case. ( Id. at p. 673, 180 Cal.Rptr.3d 649, 338 P.3d 938.) Centeno held a prosecutor may not "confound[ ] the concept of rejecting unreasonable inferences with the standard of proof beyond a reasonable doubt" by arguing the jury can find the defendant guilty based on a "reasonable" account of the evidence. ( Ibid. ) The prosecutor's remarks here are nothing like those of the prosecutor in Centeno , and as we explain below, the evidence is nowhere near as close as in that case. Here, as summarized above, the trial court admonished the jury that to the extent an attorney's statements r...

Urick v Boykin

Plaintiff and appellant Dana Urick, as trustee of the Allyne L. Urick Trust Agreement, as a beneficiary of the trust, and as guardian ad litem for her beneficiary son Trentyn Urick-Stasa, appeals from a judgment of dismissal following an order granting judgment on the pleadings in favor of defendant and respondent attorney Mark Boykin, in these consolidated legal malpractice actions based on trust provisions that he drafted. The trial court found that the actions were barred by the one year statute of limitations for legal malpractice, and Dana had not shown there was a reasonable possibility she could amend the complaints to state a cause of action. On appeal, Dana contends: (1) Boykin owed a duty of care to the trustee and to the named beneficiaries of the trust; (2) the complaints are not barred on their face by the statute of limitations; (3) the trial court erred by taking judicial notice of the filing date of Dana's prior petition to reform the trust without also taking judicial notice of a tolling agreement with Boykin; and (4) even if the complaints are defective on their face, the trial court should have allowed leave to amend to allege the date of discovery and the tolling agreement. We conclude that Boykin did not owe a duty of care to the trustee or the beneficiaries for alleged errors in drafting the distribution that Allyne intended among the beneficiaries of the trust, but he owed them a duty of care for drafting errors that negligently reduced trust assets or failed to perfect the gifts expressly set forth in the trust. The date of Dana's reformation petition, which is subject to judicial notice, established that the complaints were barred by the statute of limitations, but Dana has shown that she can amend the complaints to allege tolling agreements that bring the claims within the statute of limitations. Therefore, we reverse with directions.



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