California > Court of Appeal > 2020

California Courts of Appeal | Top Cases | April 2020

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Ajaxo v E_Trade Financial

The trial court also found that the Infocast agreement did not establish a standard rate for Ajaxo's Smart Agent software in the market, since it represented only a single licensing agreement at that price. (See Trell v. Marlee Electronics Corp. (Fed. Cir. 1990) 912 F.2d 1443, 1446 ["A single licensing agreement, without more, is insufficient proof of an established royalty."].) Ajaxo does not challenge the factual aspect of the court's finding, which is supported by the evidence of Ajaxo's other Smart Agent licensing agreements, several of which were terminated early by the other party and all of which generated significantly less than the $700,000 paid by Infocast. Ajaxo nonetheless contends, citing University Computing, supra , 504 F.2d 518, that the trial court could have utilized the Infocast and Chong Hing license and sublicense rates because a single license agreement can establish a reasonable royalty rate. Beyond the fact that the Infocast license was not a reliable analogue as discussed ante , Ajaxo's reliance on University Computing for this proposition is misplaced. The case involved in relevant part a jury verdict awarding $220,000 against three defendants for misappropriation of trade secrets from a computer system for retail inventory control called AIMES III. ( University Computing, supra , 504 F.2d at pp. 528, 530.) The Court of Appeals for the Fifth Circuit sustained the jury's verdict on misappropriation, noting that the $220,000 award was apparently derived from testimony about a single, unsuccessful licensing offer by the plaintiff to a third party for unrestricted use of the AIMES III system. ( Id. at pp. 543-544.) Ajaxo construes the Court of Appeals' ruling as having held that a single license agreement can establish a reasonable royalty. This is inaccurate. In sustaining the award for misappropriation, the court addressed the defendants' contention that an unaccepted offer should not serve as evidence of value. ( Id. at p. 545.) The court a...

In re Delta Stewardship Council Cases

As part of the Delta Reform Act, the Legislature established the DISB (§ 85280, subd. (a)) and mandated that the Delta Plan "[b]e based on the best available scientific information and the independent science advice provided by the ... [DISB]" (§ 85308, subd. (a); see § 85302, subds. (a), (g) ["the council shall make use of the best available science" in implementing the Delta Plan to "further the restoration of the Delta ecosystem and a reliable water supply"] ). The Act requires the DISB to "provide oversight of the scientific research, monitoring, and assessment programs that support adaptive management of the Delta through periodic reviews of each of those programs that shall be scheduled to ensure that all Delta scientific research, monitoring, and assessment programs are reviewed at least once every four years," (§ 85280, subd. (a)(3)) and to "submit to the council a report on the results of each review, including recommendations for any changes in the programs reviewed by the board" (§ 85280, subd. (a)(4)). The trial court rejected CDWA’s contention that the Council had failed to use best available science with respect to various portions of the Delta Plan, including the adoption of WR P1 and several other regulatory policies. The court found that the Council had either used best available science or that CDWA had failed to establish that the Council had not used best available science. On appeal, CDWA has framed its argument as a legal question as to whether the Delta Plan was required to be based on best available science and the advice of the DISB. However, the question for us is whether there is no substantial evidence supporting a finding that the allegedly defective portions of the Delta Plan were based on best available science and the advice of the DISB. This is because the nature of the alleged defects in the Delta Plan are predominantly factual. (See Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412,...

People v Zermeno

The prosecutor's argument appears to stem from a deliberately strained interpretation of Zermeno's statement and Detective Maldonado's recounting of it. Zermeno indicated the argument began around 11:00 p.m., when Zermeno was in bed and Vargas came into the trailer and began needling Zermeno. At some point during the argument, Zerneno was out of bed and the two kept arguing. Zermeno explained: "[W]e were arguing and he even punched me right here." Zermeno added: "And he even knocked me down right there." At some point, Zermeno loaded bullets into the rifle; Vargas was outside at the time. Zermeno watched TV inside the trailer. Vargas "came back in again ... to argue over the same thing." Vargas went back outside; Zermeno also went outside with the rifle. Zermeno explained: "[T]hat's when he saw me with the rifle and that's when I shot him ... actually." Zemeno explained: "Well, as soon as I saw him[,] I didn't want to, but it was already ... like I said, I was blind with rage, so I just pressed it." It was almost midnight by that point, and Zermeno immediately fled. During Detective Maldonado's testimony about Zermeno's interrogation, the prosecutor asked the detective: "[D]id [Zermeno] give any description as to roughly when [the] argument occurred?" Maldonado answered: "About 11:00 p.m." The prosecutor then discussed various other issues before circling back to the argument, to ask: "Did the defendant describe to you that, on the evening of May 6th, that [Vargas] came intoinside the trailer where the defendant was inside the trailer and that he and [Vargas] had some sort of interaction inside the trailer around 11:00 p.m. that night?" Maldonado responded, "Yes, he did." The prosecutor then asked: "What did he say?" Maldonado replied: "He said they again started arguing and [Vargas] punched him in the mouth." Maldonado never said when the punch occurred in relation to when the argument began, just as Zermeno never gave a timeline for when specific events occurred ...

Haratani v Young In re Marriage of Haratani

Lastly, although not addressed in Colin's opening brief, Colin's attorney in the supplemental opening brief asserts a cursory challenge to the trial court's finding that Colin breached his fiduciary duty to Lea, thereby entitling her to attorney fees incurred in defending against the Griscom claim. Colin's counsel argues in the introduction that it was an "improper finding . . . based solely on the court misconstruing a . . . business venture." Colin's counsel later argues in his brief that the court's breach of fiduciary duty conclusion "was predicated on several other findings, at least two of which are unsupported, or even refuted, by the evidence before that court." He goes on to reiterate that one of those subsidiary findings—that any claim by Griscom was barred by the statute of limitations at the time Colin signed the promissory note—was erroneous and unsupported by the evidence. Colin's counsel fails to cite to the record in support of his argument as required (Cal. Rules of Court, rule 8.204(a)(1)(C)), and we may therefore disregard his unsupported contentions. (City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 (City of Lincoln).) Additionally, he presents no legal authority in support of his contention that the court erred in finding that Colin breached his fiduciary duty, and we therefore deem it abandoned. (Abargil, supra, 106 Cal.App.4th at pp. 1300-1301.) In any event, because, as we have discussed, ante, the trial court properly concluded from the record that the Griscom obligation was time-barred when Colin executed the promissory note, and because there was a lack of clarity in Colin's evidence concerning the obligation which led the court to conclude that Colin had "intended to pass on an inflated claim to Lea without disclosure or consent," there were substantial grounds supporting the court's breach of fiduciary duty finding.

People v Mangum

Mangum questions several aspects of daughter's account, particularly the delayed disclosure of the sexual abuse until mother's discovery of daughter's sexual relationship with boyfriend; daughter's failure to tell Milpitas police officers Speckenheuer and La that Mangum had anal sex with her; and how the sexual activity could have taken place given the regular presence of other individuals in the home, including Mangum's wife. But none of these factors necessarily weakened daughter's credibility. Delayed disclosure is a common feature of child abuse accommodation syndrome, as Dr. Urquiza testified. Moreover, according to the testimony of daughter, T., and boyfriend, daughter did in fact disclose the abuse to her friend and later to boyfriend. Each corroborated daughter's account that she did not want Mangum to get into trouble. That daughter did not tell the police officers who interviewed her about the anal sex is not especially surprising. Both officers testified that daughter was uncomfortable describing the sexual conduct; when she told Officer La about the progression of sexual conduct to include penetration, he interpreted that as vaginal sexual intercourse and never specifically asked about anal intercourse. Neither the configuration of the house nor the presence of others in it contradicted daughter's testimony about when and how the sexual conduct occurred. For example, though Mangum's wife denied any possibility that the sexual abuse had taken place, the sleeping habits she described (Mangum often stayed up late and was in bed when she awoke for work) did not preclude that possibility.

Pinter Brown v Regents of University of California

Shortly thereafter, Dr. Pinter-Brown started to ask, "the report concluded that [UCLA] was labeling discrimination and bias as interpersonal conflicts," at which point UCLA objected as leading and hearsay. The court overruled the objections. "The very language we heard from Dr. Glaspy," Dr. Pinter-Brown continued, "that they were labeling discrimination and harassment and retaliation as interpersonal conflicts; correct?" Dr. Hiatt replied he did not remember that level of detail. Dr. Pinter-Brown then attempted to get a paragraph of the Moreno report in as a party admission; the court denied the request. Dr. Pinter-Brown therefore paraphrased the paragraph by stating, not in the form of a question, "[i]t identifies a tendency to treat reports as interpersonal conflicts, and other things that it lists." UCLA objected again to Dr. Pinter-Brown reading from the document. "Sustained," the trial court replied, "if you’re reading from the document." Dr. Pinter-Brown then said, "I’m not reading from the document." The court replied, "Okay." Dr. Pinter-Brown continued, "[i]t lists two things. It says, in essence, [UCLA] is misclassifying discrimination, harassment, retaliation as, number one, interpersonal conflicts; or, number two, some issue with regards to promotion and career advancement; correct?" Dr. Hiatt replied, "It says that." "And what we see in here," Dr. Pinter-Brown continued, "has been what UCLA’s playbook defensive mode has been in these lawsuits over the years; correct?" Dr. Hiatt replied, "I can’t comment on lawsuits over the years." Later in Dr. Hiatt’s testimony, Dr. Pinter-Brown asked, "So, sir, the conclusions of that investigation – and this was an actual independent investigation report on acts of bias and discrimination involving faculty at the University of California Los Angeles. [¶] That was undertaken by [UCLA’s] attorneys and retired Justice Carlos Moreno, among other people; correct?" Dr. Hiatt replied, "Back to the Moreno report?" to which Dr...

Association of Irritated Residents v California Department of Conservation

In our estimation, DOGGR and Aera have shown that an operator's activity of periodically drilling some new wells while plugging other older wells is ordinary and incidental to effectively maximizing the goal of extracting oil from an established oil field. Even if we were to extrapolate from this fact about an operator and say it is likewise true of the entire South Belridge oil field as the supposed project, there are fatal evidentiary gaps in regard to this theory. What we believe has not been adequately shown is whether—or to what extent—the remarkable increase in the overall number of producing wells at South Belridge oil field post-CEQA can be accounted for in this way. It does not appear DOGGR and Aera are suggesting that simply because South Belridge is an established oil field and densely populated with wells, any increase in the number of productive wells would automatically be incidental to the pre-CEQA project. Like the trial court, we believe the considerable increase in productive wells here (i.e., from 2,618 in 1974 to over 12,800 in 2014) presents an impediment to application of this exemption, at least in the absence of satisfactory evidence in the record and cogent explanatory discussion to the contrary. On the present record, it is unclear to this court whether—or to what extent—the ongoing activity at South Belridge in 2014, including the 12,800 productive wells and the 213 new wells approved by DOGGR, merely represent incidental or intrinsic operations of the original pre-CEQA project, or instead manifest a material expansion thereof. For this reason, we decline to hold that the exemption is applicable here. (See North Coast, supra, 227 Cal.App.4th at pp. 857, 864 [key test is whether the challenged activity is a normal, intrinsic part of the ongoing operation of the pre-CEQA project, rather than an expansion or modification thereof]; accord, County of Amador v. El Dorado County Water Agency, supra, 76 Cal.App.4th at pp. 968-969].) In light of t...

People v Bell

Defendants Lynell Travon Lewis (Lewis), Deon Lavell Joseph (Joseph), Jajuan Robert Bell (Bell), and John Fitzgerald Williams (Williams) were each convicted of four counts of second degree robbery (counts 1–4; § 212.5, subd. (c)), six counts of assault with a semiautomatic firearm (counts 5–7, 9–11; § 245, subd. (b)), five counts of assault with an assault weapon (counts 12–14, 16–17; § 245, subd. (a)(3)), two counts of transporting an assault weapon (counts 19, 24; former § 12280, subd. (a)(1); see § 30600), two counts of participating in a criminal street gang (counts 21, 28; § 186.22, subd. (a)), one count of conspiracy to commit assault with a semiautomatic firearm (count 22; § 182, subd. (a)(1)), one count of conspiracy to commit robbery (count 23; § 182, subd. (a)(1)), and one count of carrying a loaded firearm in public by a member of a criminal street gang (count 26; former § 12031, subd. (a)(2)(C)). Defendants Bell and Lewis were additionally convicted of two counts of possessing a firearm as a felon (counts 18 & 27; former § 12021, subd. (a)(1)).The jury found all of these crimes were committed for the benefit of, or in association with, a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)) as alleged in the indictment, except the active gang participation counts (counts 21, 28) and the single count of possessing a loaded firearm by an active street gang member (count 26).The jury also found that, as to the robbery counts, each defendant was a principal and at least one principal personally used a firearm as alleged in the indictment; except that no verdict form for this enhancement to count 28 (active gang participation) as to Bell was submitted to the jury. (Former § 12022.53, subd. (e)(1).) The jury further found that a principal was armed during the commission of the two conspiracy counts. (Former § 12022, subd. (a).)The jury found that Joseph, Lewis and Williams each pe...

People v Runderson

Appellants contend Detective Fry's testimony was insufficient to prove the primary activities of the Fly Boys street gang because he failed to provide any foundation for his opinion, and instead simply gave a vague, conclusory recitation of crimes allegedly committed by the gang. The record reflects Detective Fry testified about his own background, training, and experience in investigating criminal street gangs, including the Fly Boys gang. At the time of trial, Detective Fry had been a police officer for 10 years, and both his current and past assignments involved gang contacts and investigations. He had been the primary investigator or assistant in "no less than 500" gang-related investigations and "[n]o less than 700" gang-related arrests. In his contacts with various gang members, other officers, and in reviewing crime reports, he stayed current on trends regarding gang rivalries and alliances. He acknowledged he had become aware of the Fly Boys street gang only after he was assigned to the current case. But once assigned, he reviewed "hundreds and hundreds" of police reports and field interview contacts prepared by officers and detectives within the department. At trial, Detective Fry was asked if he was familiar with "some of the Fly Boys' primary activities," and he replied he was. When asked what some of those primary activities were, Detective Fry responded, "Illegal possession of firearms, possession of narcotics and possession of narcotics for sales, robberies, assaults." When asked if there were additional crimes, he responded, "Yes. Attempted homicides and burglaries." He responded "Yes" when asked if he had reviewed reports and court cases associated with these activities.

Coast Community College District v Commission On State Mandates

Because the Commission addressed Education Code section 66740 by paragraphs, we insert paragraph numbers in our quote of the section for ease of reference. That section provides, "[1] Each department, school, and major in the University of California and California State University shall develop, in conjunction with community college faculty in appropriate and associated departments, discipline-specific articulation agreements and transfer program agreements for those majors that have lower division prerequisites. Faculty from the community colleges and university campuses shall participate in discipline-specific curriculum development to coordinate course content and expected levels of student competency. [¶] [2] Where specific majors are impacted or over-subscribed, the prescribed course of study and minimum grade point average required for consideration for upper division admission to all of these majors shall be made readily available to community college counselors, faculty, and students on an annual basis. In cases where the prescribed course of study is altered by the university department, notice of the modification shall be communicated to appropriate community college faculty and counselors at least one year prior to the deadline for application to that major and implementation by the department responsible for teaching that major. [¶] [3] Community college districts, in conjunction with the California State University and the University of California, shall develop discipline-based agreements with as many campuses of the two university segments as feasible, and no fewer than three University of California campuses and five California State University campuses. The development of these agreements shall be the mutual responsibility of all three segments, and no one segment should bear the organizational or financial responsibility for accomplishing these goals. [¶] [4] The Chancellor of the California Community Colleges and the President of the University o...

Desmond v Salinas Valley Memorial Health Care Systems

Yet we do not find " ' "specific" and "substantial" ' " evidence in the record (Husman, supra, 12 Cal.App.5th at p. 1182) to support an inference that Johnson's frustration with the nurses' complaints prompted the investigation into Desmond's visit to the skilled nursing facility or provoked a retaliatory end to her employment. There is no evidence to suggest that Johnson fabricated her concern about the potential HIPAA violation. In the phone conversation between Johnson and Desmond, Desmond reiterated her worry for M.S. and shared with Johnson the fact that she had visited M.S. that day at the skilled nursing facility. Johnson then asked whether M.S. was a friend. The only reasonable inference to be drawn from this seemingly neutral question is that Johnson—confronted with what Desmond later acknowledged to be a "grey area" of professional standards and practice—tried to ascertain whether the visit pertained to an established friendship or was prompted by Desmond's previously articulated conviction that M.S. had been discharged with undiagnosed Norwegian scabies. Desmond's response that she had come to care for M.S. after caring for her for the past months effectively acknowledged that they did not have a prior friendship. We find that under these circumstances, Johnson's decision to contact Gonder and Martin about Desmond's self-disclosed visit to the skilled nursing facility does not support an inference of retaliatory motive or animus. To the contrary, because Desmond's visit coincided with her repeated requests for the hospital to check on M.S. due to her concern about M.S.'s health status, the hospital's privacy obligations practically mandated it to inquire into whether Desmond's conduct might have violated HIPAA.

Khanna v Khanna

In the reply to the opposition to the motion to amend to add Andy as an alter ego judgment debtor, Attorney Sarrail argued: "On or about twenty-four (24) months after entering into the [j]udicially [s]upervised [s]ettlement [a]greement, [t]hird [p]arty [c]reditors . . . filed a Petition for [t]hird [p]arty [c]laims wherein they claimed priority over monies held by Sonasoft that were due [j]udgment [c]reditor. [Andy] made no disclosures whatsoever at the time of the entering into the [j]udicially [s]upervised [s]ettlement [a]greement . . . that there were any alleged creditors who had claims or priorities over monies Sonsasoft owed [j]udgment [c]reditor Vince." (Original emphasis omitted; italics added.) Attorney Sarrail also contended: "Andy . . . has claimed and continues to claim that he is a [t]hird [p]arty [c]reditor (along with his son) who has priority over monies Judgment Creditor has levied upon. Andy . . . first made this claim nearly two years after entering the [j]udicially [s]upervised [s]ettlement. He never disclosed to [j]udgment [c]reditor or this [c]ourt at the time of [s]ettlement in April 2010 that he was, or others were, [t]hird [p]arty [c]reditors, an alleged fact that was material to the fair negotiation of the terms." (Emphasis omitted.) He further argued that Andy's third-party creditor claims were evidence of his "intention not to perform on his promises under the [j]udicially [s]upervised [s]ettlement and resulting [j]udgment."

People v Mays

Defendant appeals from his state prison sentence of life without the possibility of parole (LWOP), plus 25 years to life, for his conviction for the special circumstance, first degree murder of Miker, and a true finding that he personally discharged a firearm and caused great bodily injury or death. Defendant claims the trial court made three evidentiary errors that deprived him of a fair trial: (1) the trial court violated his Sixth Amendment confrontation rights by permitting the prosecution to introduce the conditional examination testimony of the Arizona pathologist, who conducted Miker's postmortem, because the prosecution did not establish (a) the witness was unavailable and (b) that they had exercised due diligence in procuring the witness's presence at trial; (2) the trial court abused its discretion by permitting the prosecution to introduce into evidence a pair of sneakers discovered at defendant's residence because the sneakers were irrelevant and highly prejudicial, since they were ruled out by the prosecutor's own expert witness as having made shoe impressions near where Miker was found (and at the saloon defendant and Miker had visited before the shooting), and the court erred by permitting the prosecutor to argue defendant owned another pair of the same brand of sneakers that left the impressions; and (3) the trial court denied defendant the right to present a full defense by limiting his expert witness to testifying about general principles of false confession theory, but it precluded him from testifying that the police used coercive interrogation techniques during interviews of two key prosecution witnesses. Defendant argues that, even if the three evidentiary errors were not separately prejudicial, they were cumulatively so. Finally, defendant contends, and the People concede, the trial court erred by imposing an inapplicable parole revocation restitution fine.

People v Neal

Neal also fails to demonstrate that the evidence's probative value was substantially outweighed by a danger of undue prejudice. He does not discuss the prejudicial nature of the evidence except to characterize it as demonstrating he committed "robbery with a gun of [six] children." " ' "In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citations.]' [Citation.] ' "Undue prejudice" refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis.' " (People v. Hollie (2010) 180 Cal.App.4th 1262, 1276-1277.) As suggested above, the fact that Neal used a gun during the prior offense was probative of his character for violence. While the detail that six other minors were involved was of minimal relevance, we cannot say that it was so inflammatory as to prompt the jury to convict Neal on an improper basis. Other factors tended to reduce the danger that the jury would rely on the juvenile adjudication or A.C.'s testimony to do so, including that robbery is a less serious offense than the charged offense of murder, Neal committed the robbery when he was also a minor, and the legal system already held him accountable for it. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405.) In sum, the trial court did not abuse its discretion in admitting evidence of the underlying facts of the juvenile adjudication to establish Neal's character for violence.

People v Sailor

Evidence Code section 351 provides: "Except as otherwise provided by statute, all relevant evidence is admissible." Relevant evidence includes evidence having "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Rebuttal evidence is relevant and admissible if it "tend[s] to disprove a fact of consequence on which the defendant has introduced evidence." (People v. Wallace (2008) 44 Cal.4th 1032, 1088.) Trial courts have broad discretion in determining the admissibility of rebuttal evidence. (People v. Harris (2005) 37 Cal.4th 310, 335.) We review the trial court's decision to allow the evidence for abuse of discretion. (Ibid.) We do not disturb the trial court's exercise of discretion on appeal unless it was exercised in "an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Jordan (1986) 42 Cal.3d 308, 316.) We find no abuse of discretion. The evidence was relevant to rebut Sailor's defense that he fabricated or exaggerated his statements to A.M. about Horta's murder out of fear, or based on braggadocio, because of the presence of A.M.'s Mexican Mafia tattoos. Indeed, this evidence was relevant to the entire case, because Sailor's statements to A.M. strongly inculpated all three appellants. Any defense undermining the veracity of Sailor's statements to A.M. was thus relevant to all parties. Because the evidence was relevant and admissible, we find no federal due process violation.

Carmel Development v Anderson

In Baxter , the A.A. Baxter Corporation agreed to act as a contractor for a tract to be subdivided into three units that would each contain multiple houses. ( Baxter, supra , 7 Cal.App.3d at p. 728, 86 Cal.Rptr. 854.) A.A. Baxter worked on the project for several months, resulting in an unpaid balance of over $125,000. It recorded a lien for the unpaid balance against the third unit of the subdivision and undeveloped land on the tract; the first and second units were not included in the lien. ( Id. at pp. 729–730, 86 Cal.Rptr. 854.) The defendants were owners of residences in the third unit and their lenders. ( Id. at p. 729, 86 Cal.Rptr. 854.) A.A. Baxter's principal was also a limited partner in Harbor Crest, the company that owned the tract. The evidence showed that A.A. Baxter's principal knew that Harbor Crest was in financial trouble, and made an agreement with Harbor Crest to subject the lots in the second and third units "to a secret claim of lien" whereby A.A. Baxter would delay assertion of a lien claim on the first unit so that lots in the other units could be sold without disclosing that they might later be subject to lien liability. ( Id. at pp. 730–731, 86 Cal.Rptr. 854.) A.A. Baxter obtained a money judgment against Harbor Crest, but was denied foreclosure of its lien against the homeowners and lenders from the third unit. ( Id. at p. 730, 86 Cal.Rptr. 854.) The Baxter court affirmed, finding that the lien was untimely and that A.A. Baxter had purposefully elected to impose the lien on only a subset of the lots improved by the liened work. ( Baxter, supra , 7 Cal.App.3d at p. 731, 86 Cal.Rptr. 854.) The court explained that the relevant mechanic's lien law in effect at the time provided that any " ‘person who, at the instance or request of the owner ... of any lot or tract of land , grades, fills in, or otherwise improves the same, ... has a lien upon said lot or tract of land for his work done and materials furnished.’ " ( Id. at p. 732, 86 Cal.Rptr....

People v Jarrell

At sentencing, the court imposed the upper term sentence on count 1 and consecutive terms on nine additional counts. It explained its reasons thus: "Number one, the defendant armed himself with stolen guns and ammunition at the time of the burglary. Number two, the victims were particularly vulnerable, lured away from their home by the defendant's accomplice. Number three, defendant induced others to participate in the commission of the crime and occupied a position of leadership and dominance of other participants in this commission. . . . Number four, defendant intimidated witnesses. Number five, the manner in which this crime was committed or carried out indicated planning, sophistication an[d] professionalism. Number six, the crime involved taking of great monetary value, to wit, $76,000.00 and as victim Kristie [S.] testified and I quote pretty much everything that mattered was taken. Number, seven, defendant's accomplice took advantage of a position of trust and confidence of which the defendant was aware. Number eight, the defendant's prior convictions as an adult are numerous, to wit, fourteen of them. Number nine, defendant served prior prison terms. Number ten, defendant's prior performance on probation or parole was unsatisfactory. To that I'm going to add the comments of the probation office some of which I have already stated. The defendant and his accomplice conspired to commit the crime days prior and lured the victims away from their house and utilized the victim's own hide-a-key to gain access. The defendant utilized the accomplice's relationship with the victims to lure them away from the house. The defendant has a significant prior record with a defined pattern of property crimes, drug offenses and firearm activities, while he has a recent period absent of criminal convictions, the present offense does not appear out of character. The defendant suffered a prior parole violation. During his interview [with] undersigned the defendant denied committ...

People v Olguin

We conclude Love's testimony went beyond the permissible scope of CSAAS testimony. The most obvious transgression was his repeated estimate that only about one percent of children make false allegations of abuse. As the Court of Appeal explained in Julian: "The expert providing CSAAS testimony may not give ' "general" testimony describing the components of the syndrome in such a way as to allow the jury to apply the syndrome to the facts of the case and conclude the child was sexually abused.' [Citation.] Nor is it proper for an expert to present 'predictive conclusions' [citation], such as alleged child abuse victims 'should be believed' or 'abused children give inconsistent accounts and are credible nonetheless.' [Citation.] Such predictive conclusions go beyond the scope of CSAAS evidence and may confuse the jury. '[T]he jurors' education and training may not have sensitized them to the dangers of drawing predictive conclusions.' [Citation.] Where expert opinions on the statistical probability of guilt are admitted, the jury may be 'distracted' from its 'requisite function of weighing the evidence on the issue of guilt,' and may rely instead on this 'irrelevant' evidence. [Citation.]" (Julian, supra, 34 Cal.App.5th at pp. 885-886.) In that case, as here, the CSAAS expert testified that children rarely fabricate allegations of sexual abuse and estimated the percentage of false allegations to be "as low as one percent of cases to a high of maybe 6, 7, 8 percent of cases." (Id. at p. 885, italics omitted.) The court concluded this probability evidence "invited jurors to presume [the defendant] was guilty based on statistical probabilities, and not decide the evidence properly introduced in the case." (Id. at p. 886; see also People v. Wilson (2019) 33 Cal.App.5th 559, 570-571.) As in Julian, we conclude "there is no justification for counsel's failure to object to [Love's] statistical evidence on false allegations. It was inadmissible and it improperly suggested [d...

People v Jackson

The Court of Appeal found that under these circumstances no detention had occurred. (Perez, supra, 211 Cal.App.3d at p. 1495.) In reaching this conclusion, it discussed two cases—Bailey, supra, 176 Cal.App.3d 402 and Wilkins, supra, 186 Cal.App.3d 804. (Perez, at p. 1495.) Bailey held a detention occurred where an officer in an unmarked police car pulled up behind a car in the parking lot of a closed store and turned on the police car's emergency lights (Bailey at pp. 404-406), while Wilkins held a detention occurred when an officer stopped his marked police car diagonally behind the defendant's car in a way that blocked defendant's car from exiting a parking lot. (Wilkins, at p. 809.) The Perez court then distinguished the circumstances of its case, which supported a finding of no detention: "Unlike Wilkins, the officer parked his patrol vehicle in front of defendant's vehicle and left room for defendant's car to leave. Unlike Bailey, the officer did not activate the vehicle's emergency lights; rather, he turned on the high beams and spotlights only. These differences are substantial because the conduct of the officer here did not manifest police authority to the degree leading a reasonable person to conclude he was not free to leave. While the use of high beams and spotlights might cause a reasonable person to feel himself the object of official scrutiny, such directed scrutiny does not amount to a detention. [Citations.] Under these circumstances we, like the trial court, cannot conclude that use of the lights constituted a detention." (Perez, at p. 1496.) This result controls here: like the officer in Perez, Labbe and Moore pulled up to the car in which defendant and Farr were occupants, leaving room for them to drive away; like the officer in Perez, Labbe turned on the police car's spotlights; like the officer in Perez, the officers approached the car to speak to the occupants and ascertain what was going on. And unlike Bailey and Wilkins, Labbe did not turn o...

Duran v Atl Memorial Hospital Associates

Duran's reliance on Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084 (UI Video Stores) is misplaced. There, the Division of Labor Standards Enforcement (DLSE) brought a conversion claim to recover from an employer checks it had issued to employees that were returned as undeliverable. The employer had issued the checks to reimburse employees for the cost of uniforms under a settlement agreement between the employer and DLSE. (Id. at pp. 1088-1089.) The Court of Appeal rejected the employer's argument DLSE could not assert a conversion claim on behalf of the employees on the basis it lacked authority to exercise dominion and control over the checks. (Id. at pp. 1095-1096.) As the Voris court explained in distinguishing UI Video Stores, "The act of conversion that the court recognized in UI Video Stores was the defendant's misappropriation of certain checks that it had cut and mailed to employees as part of the settlement agreement—checks that at least arguably became the property of the employees at that time. The defendant's failure to pay wages in the first instance was not remedied through a conversion claim, but rather through DLSE's enforcement action under the Labor Code. Whether the employees could have sustained a conversion action for the unpaid uniform reimbursements themselves is a matter that was not at issue in UI Video Stores, and which the court did not address." (Voris, supra, 7 Cal.5th at p. 1155.) M. The Trial Court Did Not Abuse Its Discretion by Appointing a Discovery Referee and Requiring Duran To Pay 50 Percent of the Referee's Fees

McPherson v EF Intercultural Foundation

EF and amici rely on McCarther, supra , 48 Cal.4th 104, 105 Cal.Rptr.3d 404, 225 P.3d 538 in support of their contention that section 227.3 does not apply to unlimited vacation policies. There, our Supreme Court held a sick leave policy that provided an uncapped number of paid days off was not subject to section 233 because employees did not " ‘accrue[ ] increments of compensated leave.’ " (McCarther, at p. 116, 105 Cal.Rptr.3d 404, 225 P.3d 538.) Section 233 requires employers who provide paid sick leave to allow employees "to use ... accrued and available sick leave ... in an amount not less than the sick leave that would be accrued during six months at the employee’s then current rate of entitlement" to care for an ill family member. (§ 233, subd. (a); McCarther , at pp. 110-111, 105 Cal.Rptr.3d 404, 225 P.3d 538.) The statute defines sick leave as "accrued increments of compensated leave." (§ 233, subd. (b)(3)(A).) The Court interpreted the term " ‘accrued’ " to have the "commonsense meaning of ‘accumulated.’ " (McCarther , at p. 115, 105 Cal.Rptr.3d 404, 225 P.3d 538.)We do not find McCarther ’s analysis of uncapped paid sick leave applicable to the vacation policy before us. First, section 233 plainly states it applies only to sick leave policies with "accrued increments of compensated leave." In contrast, the plain language of section 227.3 does not require vacation time to be accrued incrementally. Nor does section 227.3—unlike section 233—require vested vacation time to be calculated based on a precise, stated formula. The Court in McCarther concluded the Legislature intended to limit section 233 "to employers that provide a measurable, banked amount of sick leave," rather than uncapped sick leave, because the statute requires the amount of sick leave employers must allow employees to use for kin care to be calculated using a precise formula based on accrued time. (McCarther , supra , 48 Cal.4th at p. 111, 105 Cal.Rptr.3d 404, 225 P.3d 538.) Finally, paid ...

Tilkey v Allstate Insurance

The vocational evaluator testified Tilkey would have a difficult time ever getting another job because he had been terminated, and the reason for termination reported on the Form U5 was negative. He testified that because job applications ask for information about whether the applicant had been terminated from employment, Tilkey would have to explain the situation, and that would be "an absolute killer." He also noted that because Tilkey sold life insurance, he was required to hold securities licenses, and agencies and employers hiring those with securities licenses would have access to U5 forms. Tilkey's supervisor at Allstate, William Vasquez, testified that Allstate routinely reviewed the securities public information from the Form U5 of any person they were hiring, and he could not recall ever hiring anyone at Allstate whose Form U5 stated he was terminated for cause. Tilkey likewise testified that when he recruited agents, he would have someone check the Form U5, and he never hired anyone whose Form U5 showed the termination was for cause. He also never received an interview from any company that had access to a Form U5, even though he had 30 years of experience and performed well, receiving the third largest bonus in the state just a few weeks before his termination. Tilkey's knowledge of how companies used the Form U5, coupled with Allstate's related hiring practice, compelled him to explain and respond to the allegation. (See Live Oak Publishing, supra , 234 Cal.App.3d at p. 1285, 286 Cal.Rptr. 198 [compulsion from need to explain to employers who will learn of allegation if they investigate past employment].)

Communities for a Better Environment v S Coast Air Quality Management District

Similarly, in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 160 Cal.Rptr.3d 1, 304 P.3d 499 ( Neighbors ), our Supreme Court reaffirmed that the fundamental goal of an EIR is to inform decision makers and the public of any significant adverse effects a project is likely to have on the physical environment. To make such an assessment, an EIR must "delineate environmental conditions prevailing absent the project, defining a baseline against which predicted effects can be described and quantified." ( Id . at p. 447, 160 Cal.Rptr.3d 1, 304 P.3d 499.) In Neighbors , the agency's baseline consisted solely of conditions projected to exist absent the project at a date in the distant future, instead of an analysis of the project's significant impacts on measured conditions existing at the time the environmental analysis was performed. Our Court held that existing conditions is the normal baseline under CEQA, but factual circumstances can justify an agency departing from that norm when necessary to prevent misinforming or misleading the public and decision makers. ( Id. at p. 448, 160 Cal.Rptr.3d 1, 304 P.3d 499.) The Court reiterated its holding in Communities that an agency's discretionary decision on " ‘exactly how the existing physical conditions without the project can most realistically be measured’ " is reviewed for substantial evidence supporting the measurement method. ( Id . at p. 449, 160 Cal.Rptr.3d 1, 304 P.3d 499.) It pointed out that agencies do not enjoy discretion under CEQA and CEQA guidelines to omit all analysis of the project's impacts on existing conditions. However, projected future conditions may be used as the sole baseline for impacts analysis if their use in place of measured existing conditions is justified by unusual aspect of the project or the surrounding conditions. ( Id . at p. 451, 160 Cal.Rptr.3d 1, 304 P.3d 499.)

Jennifer K v Shane K

Iverson was a marital dissolution case involving the validity of a premarital agreement and which of the parties initiated the marriage. In ruling against the wife—a 40-year-old woman he referred to as a "girl"—the judge described her as "lovely" and commented that she "did not have much education" and had "nothing going for her except for her physical attractiveness." ( Iverson, supra , 11 Cal.App.4th at p. 1500, 15 Cal.Rptr.2d 70.) As the Court of Appeal pointed out, the trial judge’s reasoning "appears to have been that ‘lovely’ women are the ones who ask wealthy men who do not look like ‘Adonis’ to marry, and therefore [appellant] was not credible when she testified [respondent] asked her to marry him." ( Ibid. ) Also, regarding the fact that the couple had been living together before they married, the judge rhetorically inquired " ‘why, in heaven’s name, do you buy the cow when you get the milk for free.’ " ( Id. at pp. 1499–1501, 15 Cal.Rptr.2d 70.) The court concluded that the foregoing and similar statements made it clear that in resolving disputed issues of fact the trial judge "entertained preconceptions about the parties because of their gender" that made it impossible for the wife "to receive a fair trial." ( Id . at p. 1499, 15 Cal.Rptr.2d 70.) Appellant’s argument that the judicial conduct in this case is comparable to that in Catchpole and Iverson is much too far a reach. Her claim regarding the attitude of the Honorable Richard Darwin focuses on his pretrial statements that "[p]art of the conduct you would expect of someone who was sexually assaulted is to tell someone" and "the absence of statements like that tend to prove against the existence of that event," and his statements, in explaining his ruling, that "I did not see evidence that was consistent with what I would expect following a forcible rape" and "[u]ltimately, my conclusion is the testimony of the respondent on the issue of that forced nonconsensual sex was more credible than [appella...

People v Williams 7

The trial court introduced the subject matter of the video at the motion hearing by saying to the attorneys, "With regard to motion 5, to admit the rap video, so, again, sounds like you are saying he admitted he made it. There's not an authentication issue. The issue would be relevance and 352." However, in the discussion that ensued, neither the prosecutor nor defense counsel ever discussed or even mentioned the possible prejudice from the playing of the video, nor made any reference to Evidence Code section 352. Rather, when asked to respond to the prosecutor's argument, defense counsel stated that her "first objection would be relevance," and that her "second ground would be First Amendment" because "people, rappers, musicians, actors, artists depict all types of things in their art." Counsel stated that the video constituted entertainment, and that there would be a chilling effect on free speech, etc., if the video were admitted against Williams. Counsel did not mention the possibility that Williams would be prejudiced as a result of the jury being exposed to the full content of the video. Counsel did not argue that the video would make Williams look bad or would evoke an emotional bias against him. Rather, counsel went on to argue that the video constituted "inadmissible hearsay." When the court pointed out that there is an exception to the hearsay rule for statements made by the defendant and that the rapping in the video was being done by the defendant, counsel asserted that there remained a hearsay issue with respect to the video because the conduct of the women who appear in the video constituted "assertive conduct" that suggested that the women are prostitutes, even though there was no proof that the women were, in fact, prostitutes. Counsel argued that the prosecution should not be permitted to use the video to establish that the women in the video were prostitutes. Over the course of nine pages of reporter's transcript covering the discussion between th...

People v Adams 3

In People v. Cage (2007) 40 Cal.4th 965 (Cage), the California Supreme Court applied Crawford, Davis, and Hammon in a case where the defendant was convicted of aggravated assault for slashing her son's face with a glass shard. (Id. at pp. 970, 972; People v. Kerley (2018) 23 Cal.App.5th 513, 548-549.) At the hospital, a police officer interviewed the victim in the emergency department and asked what had happened. (Cage, supra, at pp. 971-972.) The victim said that, during an argument, his mother pushed him and he fell on a glass-topped coffee table, breaking it. (Id. at p. 972.) His grandmother held him down and his mother slashed his face with a piece of the broken glass. (Ibid.) After he was released from the hospital, the victim gave a more detailed statement in a tape-recorded interview at the police station. (Id. at pp. 972-973.) The victim did not testify at trial. (Id. at p. 973.) The Supreme Court held that both statements to police were testimonial. (Id. at pp. 984-985.) "The incident leading to the injury had been over for more than an hour. The assailant was far away. The victim was in no danger of further assault by his mother." (Kerley, supra, 23 Cal.App.5th at pp. 548-549; Cage, supra, 40 Cal.4th at p. 985; compare People v. Saracoglu (2007) 152 Cal.App.4th 1584, 1597-1598 (Saracoglu) [the purpose of statements by the victim, who fled to police station, that her husband had assaulted and threatened to kill her if she went to police, were to gain police protection in an ongoing emergency].) The victim's statements to the surgeon in the emergency department about how the injury occurred were nontestimonial, because the surgeon's question was for the purpose of diagnosis and treatment, not to gather evidence for use at trial. (Kerley, supra, 23 Cal.App.5th at p. 549; Cage, supra, 40 Cal.4th at p. 986.)

People v Alcaraz

Diaz-Guerrero was present from the initial gang hit-up. He watched JD1 use the ATM to withdraw cash, followed JD1 and JD2 as they left the 7-Eleven, stood close beside Alcaraz as he attempted to rob JD1 and then shot him, fled with Alcaraz and met up with his fellow gang members to make good their escape. While it is true "'"mere presence alone at the scene of the crime is not sufficient to make [him] a participant,'" his behavior "'may be [a] circumstance[ ] that can be considered by the jury with the other evidence in passing on his guilt or innocence.'" [Citation.]" (Nguyen, supra, 61 Cal.4th at p. 1055.) These same facts demonstrate "companionship," and Pietras' testimony showed Diaz-Guerrero, Alcaraz, and Manzo were all members of the same gang; a gang known to commit robberies as part of their primary activities. Pietras' expertise established gang members typically work together in the commission of their crimes, back each other up, and do not commit crimes with non-members or others who they do not trust. Although "gang evidence standing alone cannot prove a defendant is an aider and abettor to a crime" (Id. at p. 1055), Pietras' testimony did not stand alone. It strengthened inferences arising from the other evidence specific to Diaz-Guerrero's role in the crimes. Finally, as to the conduct itself, the suspects worked together before and after the unsuccessful robbery attempt. From the hit-up to the conduct inside the 7-Eleven and the two-man confrontation; from the robbery attempt to the coordinated group SUV escape, the jury could reasonably have inferred the entire course of conduct here evidenced a shared knowledge, planning, agreement, and intent to commit a robbery.

Willis v City of Carlsbad

Accordingly, section 3304, subdivision (d)(1) provides in part: "Except as provided in this subdivision and subdivision (g), no ... denial of promotion on grounds other than merit, shall be undertaken for any act, omission, or other allegation of misconduct if the investigation of the allegation is not completed within one year of the public agency's discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct .... In the event that the public agency determines that discipline may be taken, it shall complete its investigation and notify the public safety officer of its proposed discipline by a Letter of Intent or Notice of Adverse Action articulating the discipline that year, except as provided in paragraph (2). The public agency shall not be required to impose the discipline within that one-year period." " ‘[T]he apparent purpose of [section 3304,] subdivision[ (d)(1) ], ... is to ensure that an officer will not be faced with the uncertainty of a lingering investigation, but will know within one year of the agency's discovery of the officer's act or omission that it may be necessary for the officer to respond in the event he or she wishes to defend against possible discipline.’ " ( Ochoa v. County of Kern (2018) 22 Cal.App.5th 235, 245, 231 Cal.Rptr.3d 274, quoting Mays v. City of Los Angeles (2008) 43 Cal.4th 313, 322, 74 Cal.Rptr.3d 891, 180 P.3d 935, superseded in part as stated in Squire v. County of Los Angeles (2018) 22 Cal.App.5th 16, 23, 231 Cal.Rptr.3d 217.) In Conger v. County of Los Angeles, supra , 36 Cal.App.5th 262, 248 Cal.Rptr.3d 394, the Court of Appeal addressed whether an officer's denial of promotion was "on grounds other than merit" within the meaning of section 3304, subdivision (b) of POBRA. ( Id. at pp. 272-273, 248 Cal.Rptr.3d 394.) Giving the language its " ‘plain and commonsense meaning,’ " the court held "at minimum, factors constituting merit include those ‘ "substantially rela...

People v Walton

The court noted that expert testimony on CSAAS is admissible to rehabilitate the victim's credibility as a witness when the defendant suggests, for example, a delay in reporting is inconsistent with molestation. (Julian, supra, 34 Cal.App.5th at p. 885.) Such expert testimony is necessary to counter juror misconceptions about child sexual abuse and explain abused children's contradictory behavior. (Ibid.) But this evidence is not admissible to prove a child has been sexually abused. (Ibid.) An expert witness may not describe the components of the syndrome in a way to allow the jury to apply it to the facts of the case to conclude the child was sexually abused. (Id. at pp. 885-886, citing People v. Bowker (1988) 203 Cal.App.3d 385, 393 (Bowker).) Further, it is not proper for an expert to present conclusions that child abuse victims should generally be believed or are credible despite their inconsistent accounts. (Julian, supra, at p. 886; Bowker, supra, at p. 394.) "Where expert opinions on the statistical probability of guilt are admitted, the jury may be 'distracted' from its 'requisite function of weighing the evidence on the issue of guilt,' and may rely instead on this 'irrelevant' evidence." (Julian, supra, at p. 886, quoting People v. Collins (1968) 68 Cal.2d 319, 327 (Collins).)

People v Yanez 1

Here, we can see no reasonable likelihood that the jury was misled by the court's ordering or combination of the instructions. That the complained-of instructions were given in the same case did not suggest that a complaining witness was to be given more deferential treatment than any other witnesses, nor did it suggest that the prosecution's burden was anything less than beyond a reasonable doubt. Instead, a reasonable jury would have understood the instructions as being completely consistent: (1) the complaining witness, like any other single witness, may provide the sole testimony supporting a fact; (2) the complaining witness, even in cases of sexual assault, may provide the sole testimony supporting a conviction; and (3) if the jury concluded that defendant committed one of the crimes in counts one through eight, it may, but was not required to, conclude that defendant was disposed to committed other lewd acts. Although erroneously given, giving CALCRIM No. 361 was harmless error. When combined with CALCRIM Nos. 1191B, 1190, and 301—all correct statements of the law and none erroneously given—there is no reasonable likelihood that jurors would have understood the combination of instructions to suggest that the complaining witnesses were entitled to special deference or that the prosecution's burden was anything less than beyond a reasonable doubt. "The instructions in combination are no less correct, and no less fair to both sides, than either is individually." (Gammage, supra, 2 Cal.4th at p. 701.) Because we reject defendant's claim on the merits, we do not address his argument that his trial counsel was ineffective for failing to object to the instructions on these grounds.

People v Miranda

The Supreme Court long has recognized that "the law of attempts would be largely without function if it could not be invoked until the trigger was pulled, the blow struck, or the money seized." (People v. Dillon, supra, 34 Cal.3d at p. 455; see also People v. Nelson (2011) 51 Cal.4th 198, 212; People v. Ervine, supra, 47 Cal.4th at pp. 785-786.) "[I]t is not necessary that the overt act be the last possible step prior to the commission of the crime"—here, the trigger pull. (People v. Morales (1992) 5 Cal.App.4th 917, 926.) The record at trial supported the inference that Sommer intended to kill Brandon when he pointed the revolver at him. As Sommer acknowledged in his opening brief, evidence admitted at trial showed that "Sommer pointed a gun at Brandon R[.] when he returned from the apartment complex." When he pointed the gun at Brandon, Sommer already had fired several shots and seriously wounded all of Brandon's companions. The jury readily could infer that Sommer returned to Alberto's to finish what he and Miranda had started by shooting Brandon, particularly since Sommer positioned himself and aimed the gun in Brandon's direction. Indeed, Brandon believed that Sommer intended to shoot him and interrupted Sommer's efforts with an apology and plea for mercy. (See People v. Dillon, supra, at p. 455.) Sommer's last-second change of heart, made after Brandon pled for mercy while attempting to drag his injured brother out of harm's way, does not negate Sommer's actions up to that point; abandonment of the effort prior to completion of the crime does not compel the conclusion that the defendant lacked the intent to kill. (See People v. Smith(2005) 37 Cal.4th 733, 741.) Sommer's conviction for the attempted murder of Brandon is affirmed.

People v Landowski

We conclude substantial evidence supports the detective’s opinion Reyes possessed dual motives for shooting S., one personal and one gang related. Just 11 days before the shooting, Reyes informed Lovett through Facebook that he was "on a hunt" looking for targets on behalf of the gang. He also bragged to an O.G. within the gang that he was a Broderick Boys gang member "to the fullest" and "push[ed] N," i.e., Norteño, "overall." Reyes explained in this exchange that he was "building [a] name" for himself for his son. The O.G. expressed respect for the work Reyes was putting in as a soldier in the Broderick Boys gang. Detective Herrera explained this high ranking member of the Broderick Boys would not have given that level of respect to "just anybody," adding: "You have to do stuff to earn that respect." The detective also testified the commission of crimes was one way gang members make names for themselves. He elaborated: "[W]hoever can put in the most work and make the best name for themselves and the best name for the gang, then their own reputation is going to receive the benefit and that gang ... is going to receive the benefit for the name being promoted in the neighborhood, and also being able to maintain those streets as theirs." In the gang culture, the detective explained, "fear [is] synonymous with respect," both for the individual gang member and for the gang as a whole. He continued: "They think [if] someone fears them, they’ll respect them. If they’re going to go around and commit crimes, that’s going to spread like wildfire through the community." According to the detective, this "[w]ord of mouth" conveyance of fear and perceived respect is how the gang holds its territory and is a "huge benefit" to the gang. Thus, while the confrontation between S. and Reyes’s stepfather was undoubtedly personal, a reasonable jury could have concluded that for someone like Reyes, who was actively committing crimes in order to spread fear on behalf of the gang, and the...

People v Alvarez 1

Defendant's challenge rests on the premise that a special circumstance that duplicates the underlying theory of murder is unconstitutional. Precedent from both the United States Supreme Court and the California Supreme Court compels us to reject that premise as flawed. State death penalty laws must narrow the class of death-eligible defendants from "every defendant convicted of a murder . . . to [some] subclass [or subclasses] of defendants convicted of murder." (Tuilaepa v. California (1994) 512 U.S. 967, 972.) The section 190.2 special circumstances do just that. Section 190.2, subdivision (a)(17) in particular accomplishes the required narrowing, as not every defendant convicted of murder is convicted of felony murder. Defendant suggests that the constitution compels a further narrowing of death-eligible defendants based on the underlying theory of murder. That is, in his view, it is unconstitutional for all defendants convicted under a particular theory of murder to be death eligible. But no such additional narrowing requirement exists. Indeed, the Supreme Court rejected a similar argument in Lowenfield v. Phelps (1988) 484 U.S. 231. There, the court considered the constitutionality of Louisiana's capital sentencing scheme, under which an individual found guilty of first degree murder was eligible for the death penalty only if the jury found at least one statutory aggravating circumstance existed. (Id. at p. 242.) In Lowenfield, the jury found a single aggravating circumstance, which "duplicated one of the elements of the [underlying] crime" of first degree murder. (Id. at p. 246.) The Supreme Court concluded that the scheme was constitutional despite that duplication.

People v Montes 1

Following passage of Proposition 47, the appellate courts disagreed whether section 490.2 applied to vehicle theft under Vehicle Code section 10851. (Gutierrez, supra, 20 Cal.App.5th at p. 854.) About two months after appellant was sentenced in this matter, our Supreme Court resolved this dispute. In Page, the high court confirmed Vehicle Code section 10851 has both nontheft and theft forms of the offense. (Page, supra, 3 Cal.5th at p. 1183, citing and reviewing People v. Garza (2005) 35 Cal.4th 866, 871.) Vehicle Code section 10851 punishes not only taking a vehicle, but also driving it without the owner's consent, and with intent either to permanently or temporarily deprive the owner of the vehicle with or without an intent to steal the vehicle. (Veh. Code, § 10851, subd. (a).) In contrast, theft requires a taking of property with the intent to permanently deprive the owner of possession. (Page, supra, 3 Cal.5th at p. 1182.) Page held a form of theft is present when a defendant unlawfully takes a vehicle with the intent to permanently deprive the owner of possession. (Id. at p. 1183.) The taking may be accomplished by driving the vehicle away. (Ibid.) In contrast, theft is not present when an unlawful driving of a vehicle occurs or continues after the theft is complete. (Ibid.) Likewise, a theft does not occur "when a defendant acted with intent only to deprive the owner temporarily of possession. Regardless of whether the defendant drove or took the vehicle, he did not commit auto theft if he lacked the intent to steal." (Ibid.)

People v Smith

Similarly, in answering the questions about whether Smith committed the offenses for the benefit of the Pasadena Denver Lanes, Detective Wilf's answers did not provide any specific information about Smith and the offenses. He did not even confirm that the offenses were committed by Smith for the benefit of the Pasadena Denver Lanes. Instead, Detective Wilf provided generic answers about why the offenses would benefit any gang. As to whether the burglary offense was committed by Smith to benefit the Pasadena Denver Lanes, Detective Wilf explained that "burglaries or robberies—in this case burglary—benefits a gang by basically receiving proceeds from your stolen goods." He similarly opined generally about how evading law enforcement benefits gangs in general and did not say anything about how Smith's conduct in evading law enforcement benefitted the Pasadena Denver Lanes in particular. These generalized answers did not include objectionable content about whether Smith specifically acted to benefit the Pasadena Denver Lanes, and the answers would have been of the same generic quality if the questions were properly posed as hypotheticals. It therefore is not reasonably probable that the outcome would have differed if these questions had been properly posed as hypotheticals.

People v Bonifield Carrillo

Thus, there is a constitutional difficulty with the imposition of the court operations assessment (here, $160) and the criminal conviction assessment (here, $120) without a prior determination of a defendant's ability to pay. The implementation of these assessments (here, totaling $280)—designed to function as user fees—without regard to ability to pay places a greater burden on those who cannot pay than on those who can. A defendant who has immediate access to $280 and is ordered to pay it suffers a consequence of the loss of $280. A defendant under the same order who does not have access to the same amount of money experiences the consequences of being a delinquent debtor—loss of access to credit, declarations of delinquency on other debts that have cross-default provisions, actual defaults on other debts caused by the strain of attempting to satisfy the court-imposed debt, harm to employment and housing relationships and prospects, loss in some cases of opportunities for expungement of convictions and early termination of probation, and more—and is still liable for the court-ordered payment, plus collection fees and interest. (See, e.g., People v. Neal (2018) 29 Cal.App.5th 820, 827-828.) This means there are additional consequences to indigent convicted defendants for access to courts in which to defend themselves than for solvent convicted defendants to have the same access. The situation is no different than it would be if the cost of court reporters' transcripts were not waived for indigent criminal appellants but instead became a debt payable to the court upon affirmance of the conviction. The United States Supreme Court has long held that the right of access to the criminal courts is a fundamental right and the exercise of it cannot constitutionally be curtailed on the basis of an ability to pay. (Griffin v. Illinois, supra, 351 U.S. at pp. 16-17 ["all people charged with crime must, so far as the law is concerned, 'stand on an equality before the bar of j...

People v Walker 2

Each of the calls exemplify a separate objective. In the March 10 call, defendant encouraged K.A. to dodge any other subpoena she might be served related to the preliminary hearing or any other hearing. On March 11, they discussed K.A. avoiding any subpoena after the preliminary hearing, and they discussed that K.A. needed to recant her story whenever she was placed on the stand. In the final call on March 16, defendant urged K.A. to accept a plan whereby she would definitively appear at the preliminary hearing and recant her story; if that did not accomplish dismissal of the charges, defendant told K.A. she should avoid being subpoenaed specifically for trial, that she would need to relocate to avoid service of a trial subpoena, and that even during trial she would need to go to her daughter's house or move out of town or he would send someone to take her to another location. Thus, each call was aimed at something separate—first to simply avoid service of any further subpoena, in the second call for K.A. to recant her story, and then in the third call for K.A. to recant at the preliminary hearing and then they discussed and organized how she would avoid service of a trial subpoena. While the calls were aimed at dissuading K.A. from assisting with the prosecution of the charges generally, the calls related to different conduct by K.A. at different points in the proceedings. Like the hit and run charges and the subsequent drunk driving charge in Howell, supra, 245 Cal.App.3d at page 792, which were all connected by the same drunk driving trip the defendant had taken in his car, each offense had a separate character such that they were divisible; the types of conduct defendant encouraged or discouraged K.A. from engaging in were different in character in each phone call.

People v Dumont

On appeal, the People contend we should find the issue forfeited because if Murphy had objected, they could have moved to amend the information. (See, e.g., People v. Tindall (2000) 24 Cal.4th 767, 776-779 [prosecution can amend information at sentencing hearing to add previously unalleged prior conviction after discharging jury if defendant waives or forfeits the right to have the same jury try both guilt and priors].) It is undisputed, however, that they did not move to amend the information. Thus, the court erred in imposing the five-year enhancement that was not alleged in the information. If the People are implying that their past ability to amend the information suggests we should uphold the trial court's imposition of the enhancement, they ignore that the matter would have to be remanded for resentencing based on the imposition of the five-year enhancement for an entirely different reason. Senate Bill No. 1393, effective January 1, 2019, removed the prohibition of the trial court's ability to strike the five-year enhancement under section 667, subdivision (a)(1). (See, e.g., People v. Garcia (2018) 28 Cal.App.5th 961, 971.) This legislation applies retroactively to Murphy. (Id. at pp. 972-973.) Thus, the trial court has new discretion to strike the enhancement, precluding this court from affirming the imposition of the enhancement regardless of whether it was properly imposed at the original sentencing hearing. Nor could we merely affirm imposition of a three-year enhancement as pled pursuant to section 667.5, subdivision (a) without giving Murphy the opportunity to request that the enhancement be stricken in the interests of justice pursuant to section 1385.

San Mateo County Human Resources Agency v MM In re JM

On appeal, the mother contended that the court's ruling " 'suffer[ed] from many of the same errors' committed by the juvenile court in In re S.B., supra, 164 Cal.App.4th 289." (In re C.B., supra, 190 Cal.App.4th at p. 124.) Quoting In re S.B., she argued that "in evaluating the parent-child relationship exception, 'it is improper . . . for the court to rely on a belief the relatives will maintain the children's relationship with [mother].' " (In re C.B., at p. 127.) The Court of Appeal concurred: "We agree that in this case, as in In re S.B., the juvenile court injected an improper factor into the weighing process, namely, the prospective adoptive parents' willingness to allow the children to have continued contact with mother. It is important to remember that once the legal parent-child relationship is permanently severed by termination of parental rights, a substantial, positive emotional attachment between a child and a parent has no legal protection even if depriving the child of that attachment by disallowing contact would greatly harm the child." (Id. at p. 128.) In a footnote, the court went on to explain: "Although the Legislature has declared that 'some adoptive children may benefit from either direct or indirect contact with birth relatives, including the birth parent or parents . . . , after being adopted' and has recognized postadoption contact agreements (Fam. Code, § 8616.5, subd. (a)), such agreements are entirely voluntary (see Fam. Code, § 8616.5, subds. (a), (b); see also Welf. & Inst. Code, § 366.26, subd. (a) ['Section 8616.5 of the Family Code is applicable and available to all dependent children meeting the requirements of that section, if the postadoption contact agreement has been entered into voluntarily.']). Even where there is an agreement for postadoption contact with a biological parent, the subsequent refusal of an adoptive parent to comply with the agreement does not affect the adoption. (See Fam. Code, § 8616.5, subd. (e)(1) [a posta...

People v Kuo

As mentioned above, theft by false pretenses requires proof that when the defendant made the false representation, he or she had " 'the intent to defraud the owner of that property.' " (People v. Williams, supra, 57 Cal.4th at p. 787.) The evidence showed that after receiving the customers' money, Kuo quickly used it for purposes other than purchasing their watches, even though he knew he might not be able to obtain the watches easily. He spent Barbara E.'s money the same day it was received. And within a week of depositing Nathan S.'s check, Kuo transferred a substantial portion of the money to his personal account. While what happened to Julia W.'s money was less clear, Kuo testified he received it on July 12 and, by the time she returned from her trip and demanded a refund, he no longer had sufficient funds to pay her back in full. In addition, there was ample evidence that the business was struggling, and we agree with the Attorney General that this permitted the conclusion that Kuo "desperately needed continuing infusions of money to placate his prior customers and the other creditors of The Finest Watches." The jury could infer from Kuo's immediate spending of the customers' money, combined with his actual understanding of the difficulty of finding watches and his financial woes, that he intended to defraud his customers when he falsely told them he had the watches they wanted.



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