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California Courts of Appeal | Top Cases | May 2020

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People v Gorostiza

Farwell held Howard's totality of the circumstances test applied in all circumstances "where the court fails, either partially or completely, to advise and take waivers of the defendant's trial rights before accepting a guilty plea." (Farwell, supra, 5 Cal.5th at p. 303.) In applying this review, however, Farwell rejected the findings made by the majority opinion from Court of Appeal in defendant's case, where it affirmed defendant's convictions, rejected his Boykin/Tahl arguments, and found the defendant " 'knew of and waived his constitutional rights when he and his counsel made the strategic decision to enter the stipulation.' The majority focused on comments the trial court made to [the defendant] and to the jury in his presence about the charged crimes, the People's burden of proof, [the defendant's] right to cross-examine witnesses and his right not to testify. It also concluded that [the defendant] was aware of his constitutional rights 'because he was in the midst of that very jury trial, after a witness had been called and cross[-]examined when he and his attorney made the strategic trial decision to stipulate to the elements of count 2.' Finally, it noted that [the defendant] had two prior convictions and that his previous experience in the criminal justice system was relevant to demonstrate his knowledge of his legal rights." (Id. at p. 306.)

People v Thompkins

Though failure to object did not waive the alleged Crawford error for appeal ( Perez , supra , 9 Cal.5th at p. 4, 259 Cal.Rptr.3d 195, 459 P.3d 1 ), some cases have held that, to the extent the failure to object resulted in an inadequate record, the reviewing court will not assume constitutional error, and have applied the Watson standard of prejudice. ( Garcia , supra , 46 Cal.App.5th at p. 167, 259 Cal.Rptr.3d 600 ; Anthony , supra , 32 Cal.App.5th at pp. 1139-1140, 244 Cal.Rptr.3d 499 ; Ochoa , supra , 7 Cal.App.5th at pp. 584-586, 589, 212 Cal.Rptr.3d 703.) Under that view, defendants have not carried their burden of showing Crawford error on appeal because they have not shown that any of the challenged hearsay was testimonial. The Watson standard applies to nontestimonial Sanchez error. ( Calhoun , supra , 38 Cal.App.5th at p. 316, 250 Cal.Rptr.3d 623 ; Flint , supra , 22 Cal.App.5th at pp. 1003-1004, 231 Cal.Rptr.3d 910 ; see Sanchez , supra , 63 Cal.4th at pp. 684-685, 204 Cal.Rptr.3d 102, 374 P.3d 320.) On the other hand, where there is a combination of testimonial and nontestimonial hearsay error, and an adequate record has been made to evaluate the effect of the testimonial aspects of it, the reviewing court must apply the Chapman standard. (See Sanchez , supra , 63 Cal.4th at pp. 698-699, 204 Cal.Rptr.3d 102, 374 P.3d 320 ; People v. Martinez , supra , 19 Cal.App.5th at p. 861, 228 Cal.Rptr.3d 271.) Some aspects of the STEP Act proof that was admitted here do raise potential issues under Crawford . The admission of conviction records, for example, may have violated the confrontation clause to the extent they were offered to prove anything other than the fact of each conviction. ( Garcia , supra , 46 Cal.App.5th at pp. 171-172, 259 Cal.Rptr.3d 600 [under Kirby v. United States (1899) 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890, "records of convictions used to prove facts other than the fact of conviction itself are testimonial"].) But even assuming federal c...

Boermeester v Carry

At the time of these disciplinary proceedings in 2017, neither the law nor USC's sexual misconduct policy contemplated cross-examination of third-party witnesses at an in-person hearing. Allee , which extends cross-examination rights to third-party witnesses, was not published until January 4, 2019. In 2016, the existing law on this point was set forth in USC I , which cited with approval a case that held, " ‘[a]lthough we recognize the value of cross-examination as a means of uncovering the truth [citation], we reject the notion that as a matter of law every administrative appeal ... must afford the [accused] an opportunity to confront and cross-examine witnesses.’ " ( USC I, supra , 246 Cal.App.4th at p. 245, 200 Cal.Rptr.3d 851.) Under these circumstances, Boermeester could not reasonably have been expected to foresee Allee's holding. Moreover, any objection would have been futile because the Title IX office had made it clear they were not going to deviate from USC's sexual misconduct policy and procedures. This is demonstrated by USC's denial of Boermeester's request that Roe's answers to his questions at the Evidentiary Hearing be transmitted to him "unfiltered," meaning verbatim, and prior to the SAR. The Title IX coordinator replied, "The process does not afford that. Please review our policy." It is reasonable to conclude a request to question other witnesses would likewise have been denied and an objection is futile under such circumstances. (See People v. Hopkins (1992) 10 Cal.App.4th 1699, 1702, 13 Cal.Rptr.2d 451 [after mistrial objection overruled on a legal ground, defense counsel could reasonably have believed further objections would be fruitless]; In re Antonio C . (2000) 83 Cal.App.4th 1029, 1033, 100 Cal.Rptr.2d 218 ["[W]here an objection would have been futile, the claim is not waived."].)

People v Nguyen 1

In Franklin, our Supreme Court explained that "[t]he criteria for parole suitability set forth in . . . sections 3051 and 4801 contemplate that the Board's decisionmaking at [a defendant's] eventual parole hearing will be informed by youth-related factors, such as his cognitive ability, character, and social and family background at the time of the offense." (Franklin, supra, 63 Cal.4th at p. 269.) This information may include statements by "'[f]amily members, friends, school personnel, faith leaders, and representatives from community-based organizations with knowledge about the individual before the crime.'" (Id. at p. 283.) Franklin observed that "[a]ssembling such statements 'about the individual before the crime' is typically a task more easily done at or near the time of the juvenile's offense rather than decades later when memories have faded, records may have been lost or destroyed, or family or community members may have relocated or passed away." (Id. at pp. 283-284.) Because the defendant in Franklin was sentenced prior to the passage of sections 3051 and 4801, the Supreme Court remanded the case for the trial court to determine "whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing." (Franklin, at p. 284.) If the trial court determined Franklin had not been provided a sufficient opportunity to make a record, then it was instructed to permit Franklin to "place on the record any documents, evaluations, or testimony (subject to cross-examination) that may be relevant at his eventual youth offender parole hearing, and the prosecution likewise [would be permitted to] put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth-related factors." (Ibid.) The Supreme Court explained the goal of this proceeding "is to provide an opportunity for the parties to make an accurate record of t...

Seibert v City of San Jose

The December 15, 2008 e-mail exchange, which followed N.C.'s second visit to the fire station and her disclosure by e-mail that she had injured her elbow during the visit, is fully set out in Seibert I, supra, 247 Cal.App.4th at pages 1031 to 1034. Seibert responded in part to that disclosure, "Too bad your [sic] not here, [sic] I would take care of you[.]" In an ensuing e-mail he said, "I think i [sic] would have to do a hands on [sic] evaluation." After Seibert asked whether she was using the family computer and N.C. said no, Seibert said, "[S]o as a paramedic, it is my job to 'asses' [sic] you and try to make you feel good. . . . [¶] A good 'hands-on' assesment [sic] begins at the head, and works down the body examining every inch of you to make sure you are okay . . . of course the body needs to be exposed [sic] that way I can see all injuries." In another e-mail, Seibert said, "I would have to evaluate you to see how healthy you are." In a further e-mail, he said, "I may have to do a very, very thorough hands on [sic] evaluation." He subsequently said, "I have a lot of equipment I can use to 'evaluate' you . . . we should start by taking your temperature with a 'thermometer' . . . ." In a further e-mail, he indicated that he "would have to look at [her] lips and mouth" and neck and that his exam would "involve exposing [her] chest (for medical purposes only)" and feeling her stomach. Also, he might "need to 'poke and probe' in [the hip] area." He "would take [her] temperature for a few minutes" and "move [her] body in different positions to see how flexible [she was]." In another e-mail, Seibert said, "[T]he more wet you are, the deeper I can probe to evaluate you," and "After probing you, and taking your temperature, I may have some 'medicine' to give you." In his final e-mail that night, Seibert stated in part, "I can start my evaluation from [sic] you in several different positions, and [I] can finish my evaluation from behind you . . . I like that : )." Ap...

People v Alexander

Alexander insists that Dr. Mechanic essentially testified that "it was likely that [victim] was actually raped and assaulted as she claimed by virtue of being an adult victim of childhood sexual assault." Alexander mischaracterizes Dr. Mechanic's testimony. As we have discussed, the prosecutor did not introduce Dr. Mechanic's testimony to prove that victim was sexually assaulted but to explain some of victim's counterintuitive behaviors, which may have been impacted by her childhood experiences. Dr. Mechanic testified that depression and PTSD, which can develop after childhood sexual assault, contributes to risk-taking behaviors and a decreased sense of danger. In this case, victim testified that she sought out methamphetamine from strangers, got into an argument with a man she initially gave money to, and generally engaged in behaviors that placed her at risk. Yet when she was with Alexander, she did not fight back and froze when given the opportunity to call for help or flee. Dr. Mechanic's testimony gave the jurors, who most likely have no experience with childhood sexual assault, information they needed to evaluate victim's behavior and credibility. (See McAlpin, supra, 53 Cal.3d at pp. 1301-1302 [expert testimony that it is not unusual for parent to refrain from reporting a known molestation admissible to rehabilitate the testimony of the parent witness].)

SLPR v San Diego Unified Port District

Furthermore, evidence regarding Leeds's survey work confirmed the existence in 1930 of artificial fill in the area of Plaintiffs' properties. In one 1930 letter, Leeds referred to "[a] considerable additional number of excavations ... necessary ... to definitely fix the location of the historical and now buried beach line at certain critical locations." In another 1930 letter, he enclosed blueprints showing "the courses and distances describing the [MHTL] around [City] on the Bay side," and stated: "I have been getting into shape a list of holes which were dug by us, necessary to show where the [MHTL] was before any artificial filling was done, together with complete logs of each, and a map showing their location." In another 1930 letter, Leeds reported that he had completed the field survey of the MHTL and stated that "[w]here ... it was apparent that there has been some artificial filling, excavations were made at strategic points, the line of demarkation [sic ] between the original and the filled material was observed and recorded, and the [MHTL] as it existed prior to the artificial filling was determined. The record of these holes, including surface elevations of original ground and material through which excavation was made, has all been recorded." Leeds's 1930 survey work therefore showed that he located the historic MHTL prior to the placement of artificial fill over the MHTL. Where there had been artificial fill placed over the MHTL, the boundary line that Leeds surveyed was the MHTL prior to the placement of that fill. Although the evidence regarding Leeds's survey work did not show specifically where those areas of artificial fill were found, we infer from the evidence discussed ante regarding the existence of wharves along the First Street shoreline in the vicinity of Plaintiffs' properties that Leeds presumably found artificial fill in the immediate vicinity of those properties. Because extrinsic evidence shows that there were both artificial improvem...

People v Alvarado

Alvarado relies on In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.) and People v. Perez (2004) 118 Cal.App.4th 151 to argue that there was insufficient evidence that the Norteños' and Northside Boronda's primary activities were the commission of crimes enumerated in the gang statute. In Alexander L., the expert witness, who had been working in the gang enforcement unit for an unspecified period of time, testified regarding the primary activities of the Varrio Viejo gang: " 'I know they've committed quite a few assaults with a deadly weapon, several assaults. I know they've been involved in murders. [¶] I know they've been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.' " (Alexander L., at pp. 609, 611.) In concluding that there was insufficient evidence to support the gang enhancement, the Court of Appeal reasoned: "Lang's entire testimony on this point is quoted above—he 'kn[e]w' that the gang had been involved in certain crimes. No specifics were elicited as to the circumstances of these crimes, or where, when, or how Lang had obtained the information. He did not directly testify that criminal activities constituted Varrio Viejo's primary activities. Indeed, on cross-examination, Lang testified that the vast majority of cases connected to Varrio Viejo that he had run across were graffiti related. [¶] Even if we could reasonably infer that Lang meant that the primary activities of the gang were the crimes to which he referred, his testimony lacked an adequate foundation. 'The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates.' " (Id., at pp. 611-612, fn. omitted.)

Claggett v County of Los Angeles

Claggett has not alleged a concerted pattern of harassment of a repeated, routine, or generalized nature. Instead, she expressed dissatisfaction with several discrete employment decisions spanning several years. These facts are very different from those, for example, in Galvan. (Galvan, supra, 37 Cal.App.5th at p. 554.) When defendant Alvarez became the supervisor of the plaintiff's hospital department, she "singled out unit coordinators who spoke English as a second language for criticism and often focused her comments on their accents and their supposed poor English language skills." (Id. at p. 555.) Alvarez told others "that the Filipino unit coordinators were 'too old' and had 'been here too long,' and that she wanted to get rid of all of them." (Id. at p. 556.) "Alvarez's criticisms of the Filipino unit coordinators were ongoing and 'constant.'" (Ibid.) The trial court granted summary judgment and the Court of Appeal reversed, finding that the plaintiff "presented evidence that would allow a reasonable trier of fact to find that she and the other Filipino and foreign-born unit coordinators were subjected to a '"concerted pattern of harassment of a repeated or generalized nature."' [Citation.] Every time Alvarez met with the unit coordinators, she 'insult[ed],' 'degrad[ed],' and 'humiliat[ed] them.' She consistently criticized the unit coordinators' accents and English language skills and 'kept bombarding' them with negative insults. Based on the evidence presented, a reasonable trier of fact could conclude that the conduct complained of was sufficiently severe or pervasive to interfere with a reasonable employee's work performance and seriously affect the psychological well-being of a reasonable employee." (Id. at p. 565.)

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...

People v Reed

Defendant contends that the court had a sua sponte duty in this case to instruct on simple possession of both methamphetamine and clonazepam as lesser included offenses of the charged crimes of possession of those same narcotics for sale. Defendant's argument is based on People v. Saldana (1984) 157 Cal.App.3d 443 (Saldana).) In that case, officers arrived at a house to execute a search warrant for the defendant's brother. There were several members of the defendant's family in the house. When the officers arrived, they found the defendant lying on his mother's bed in a room he shared with her. He reached inside the headboard, and the officers immediately took him into custody. The officers found 18 balloons of heroin inside the headboard. The defendant's brothers were in the basement; one brother was under the influence of heroin when officers arrived, and he was a known user and seller of heroin. The police found materials related to both sales and use in the basement. The defendant denied any knowledge of the heroin, and it was established that he did not use heroin. There was contradictory testimony from family members about who might have been using heroin in that house. The defendant was charged and convicted of possession of heroin for sale. The jury was instructed that joint or constructive possession was sufficient to prove the possession element of possession for sale, but it was not instructed on simple possession. (Id. at pp. 450-453, 455.)

Mac Sohrabi v Hadjibabaie

Defendant does not show otherwise. He does not discuss Section 2.1 in his opening brief, and we do not consider his brief discussion on reply. He does address Section 3.3, but not persuasively. He contends the trial court ignored his argument that Section 3.3 did not apply when the ranch was inoperable after the fire or to loan payments. It does not appear he raised the loan point below, and regardless, the court's ruling as to Section 3.3 was sufficient to resolve his arguments about it. The court did not have to discuss each point. (Thompson, supra, 6 Cal.App.5th at p. 981.) He also identifies nothing in Section 3.3 to suggest the parties intended to exempt inoperable periods, or any contract language to support compensation for loan payments. (Series AGI West Linn of Appian Group Investors DE, LLC v. Eves (2013) 217 Cal.App.4th 156, 168-169 [courts " 'will not imply a better agreement for parties than they themselves have been satisfied to enter into, or rewrite contracts whenever they operate harshly.' "].) Defendant further contends the court "should not have ignored equitable considerations," and that "[a]s a matter of equity," he should have been indemnified for at least half of his expenditures on loans and maintenance. But he does not establish he plead equitable claims in his cross-complaint, and he provides no authority for such relief here. (See Wal-Noon Corp. v. Hill (1975) 45 Cal.App.3d 605, 613 [courts cannot create " ' "new, substantive rights [in a contract] under the guise of doing equity" ' "].)

People v Son

Under rational basis review, a challenged classification is consistent with the equal protection clause if "there is a rational relationship between the disparity of treatment and some legitimate governmental purpose." ( Heller, supra , 509 U.S. at p. 320, 113 S.Ct. 2637.) Neither the legitimate purpose nor the rational relationship need ever have been spelled out by legislators or other government actors who chose to make use of the classification. Instead, the rational basis of the challenged scheme need only be " ‘reasonably conceivable’ " in the mind of the court reviewing it. ( Ibid. ) The standard is thus highly deferential. The state's interest in using fines for punishment is a legitimate government interest. The use of fines to deter and punish crimes can no doubt be criticized on various grounds, including the fact that the differences in individuals' means can result in substantial differences in the effectiveness of deterrence and the proportionality of punishment. But such criticisms hardly render illegitimate the government's interest in using fines to punish. What conceivable rational relationship is there between the state's interest in using fines as punishment and its toleration of the differing effects of the same fines on defendants with and without the ability to pay them? Taking account of defendants' ability to pay would add administrative complexity and expense to the process of imposing fines. It may also be true that not taking account of defendants' ability to pay complicates the process of fining defendants and makes it wasteful, resulting in fruitless expenditure of resources in attempting to collect money from those who have none. But the state's action need not be particularly efficient or effective to pass the rational basis test. Further, as the Supreme Court suggested in Williams, Tate , and Bearden , accepting the harsher impact of the imposition of debt on defendants who cannot pay it (i.e., indigent defendants), is a rational ...

Doe v Saint Marys College of California

Whether Saint Mary's should have specifically advised Doe he could have retained an attorney as an "Advisor" during the disciplinary process also bears serious thought. While Saint Mary's says its policy statements on "Advisors" made clear students had that choice, again its various statements, appearing in various documents and locations, are not entirely clear on this point. The "Sexual Assault and Sexual Misconduct Policy" in place at the time states, in pertinent part, that both complainant and respondent "have the option of choosing an advisor to accompany them through the process." Neither members of the disciplinary board nor witnesses may serve as an advisor. "A list of individuals who have volunteered and have been trained to serve as advisors in sexual assault, sexual misconduct and sexual harassment cases is available from the Dean of Students, or designee, to both the complainant and respondent. Students are not limited to this list and may be accompanied by an advisor of their own choice." The form "initial meeting" list of procedures presented to complainants and respondents similarly states: "I understand that I may have an advisor of my choosing to assist me during the student discipline process. I also understand that I can choose an advisor from a list of individuals who have volunteered to be an advisor. This list can be obtained from the Dean of Students or designee. I received a copy of the 'Role of the Advisor' and a list of trained Saint Mary's College advisors." The one-page description of the "Role of An Advisor In The Student Disciplinary Process" also provided to complainants and respondents states, "An advisor may be a faculty, staff or student member of the Saint Mary's community, or anyone of my choosing. It is the student's sole responsibility to choose an advisor." Among other things, the advisor is to advise "the student of support resources available to him/her" through the college and "off-campus resources, such as the Rape Crisis...

People v Schroeder

Moreover, defendant's "dominance and authority" over, and his "continuous exploitation" of, Sidara were further evident from the fact that Sidara was just entering puberty when defendant, 20 years her senior, began to abuse her sexually (see Cochran, supra, 103 Cal.App.4th at p. 15 [noting the relative "age[]" and "size[]" discrepancy of the defendant and the victim are relevant factors in determining psychological coercion]); that despite Sidara's disclosure to her mother that she was uncomfortable and wanted him to stop "touching" her at night, including when tucking her into bed, defendant ignored Sidara's simple request and continued to engage in such behavior; that Kailie saw defendant touch her cousin Sidara's "butt" when defendant tucked his stepdaughter into bed, and reported defendant's "odd" behavior to her mother Tiffanie; that defendant also ignored the advice Tiffanie gave him during the "family meeting" of adults, and on multiple other occasions, when Tiffanie told defendant the manner in which he was touching his stepdaughter was "wrong," his starring into the girls' bedroom at night for minutes at a time was "creepy," and Sidara was uncomfortable both with him tucking her into bed and with him sleeping next to her at night; that defendant was "very strict" when it came to disciplining and punishing Sidara; that defendant refused to allow Sidara to accompany Tiffanie and her family on their monthly trips to Arizona, when, in Kailie's absence, he would sexually abuse Sidara when she was alone in the bed she typically shared with her cousin; that defendant placed Sidara's legs around his torso and had her sit facing him on his lap, chest-to-chest, where Sidara over her clothes could feel his "hard" penis against her vagina; that other than sitting on defendant's lap, all of defendant's acts of sexual misconduct of Sidara occurred late at night in her bedroom, when the rest of the family was asleep; that Sidara at times was unable to resist defendant be...

People v Best

Even if the majority's reliance on Poplawski and Silfa were well founded, there is an independent basis on which I would affirm the denial of the Faretta motion. ( People v. Dent (2003) 30 Cal.4th 213, 218, 132 Cal.Rptr.2d 527, 65 P.3d 1286 ( Dent ) [where trial court denied self-representation request on an improper basis, the ruling may be affirmed if the record as a whole establishes it was properly denied on other grounds].) A defendant's self-representation request may be denied where he or she engages in serious and obstructionist misconduct. ( People v. Welch (1999) 20 Cal.4th 701, 734–735, 85 Cal.Rptr.2d 203, 976 P.2d 754 [trial court properly denied defendant's Faretta motion "based on the disruptive behavior he had exhibited in the courtroom"].) A court may also deny a Faretta motion where the defendant is unable or unwilling to "abide by rules of procedure and courtroom protocol." ( McKaskle v. Wiggins (1984) 465 U.S. 168, 173, 104 S.Ct. 944, 79 L.Ed.2d 122.) After all, the "right of self-representation is not a license to abuse the dignity of the courtroom." ( Faretta, supra , 422 U.S. at p. 834, fn. 46, 95 S.Ct. 2525.) To be sure, the trial court did not expressly state that it was basing its denial of the Faretta motion on defendant's repeated interruptions and vociferous insistence that she had previously proceeded pro se, despite the evidence contradicting her assertion. It is nonetheless apparent from the record that the court was appropriately considering Ms. Best's disruptive behavior and obstructionist misconduct as a reason for its ruling—indeed, the court expressly focused on Ms. Best's inability to behave appropriately in the courtroom in the middle of explaining its denial of the Faretta motion: "The determination I am making is whether it is clear to me that you fully understand and appreciate the expectations that will be placed on you ... if you represent yourself .... And one of those expectations is that you not interrupt the Court ......

People v Torres 1

If the rule requiring the prosecution prevent witnesses from becoming unavailable is expanded to all material witnesses with an "impending deportation risk"—as the majority opinion effectively does—the 58 District Attorney’s offices in this state will need to expand the size of their witness coordination units and hire more investigators just to keep track of them all. In large counties like Los Angeles, the District Attorney might need to permanently assign members to a "Deportation Prevention Unit," whose sole job is to pursue the laundry list of actions the majority seeks to impose upon them, including: notifying the defense about the deportation risk, videotaping preliminary hearing testimony of such witnesses, and seeking to stave off their deportation or hold the witnesses in custody by the use of federal regulations, a material witness hold, or a writ of habeas corpus ad testificandum. In addition, they will need extra funding to comply with the majority’s requirements to: "Subpoena the witness who may be deported; Before deportation, give that witness written notice about the trial; Impress upon the witness that they are [a] material witness and obtain their assurance they will return for trial; Give these witnesses contact information so they can stay in touch with authorities here; Provide witnesses with information and resources to facilitate their reentry to the United States to testify at trial; Obtain (or make a record of attempts to obtain) relatable contact information about family in the United States and in the nation to which the witnesses will be deported." Keep in mind, the District Attorney will have to keep this up during the many months, and sometimes years, between preliminary hearing and trial. As I see it, expanding the Louis / Roldan exception as the majority seeks to do would require exactly the prohibitive administrative burdens the California Supreme has indicated should not be imposed; it is precisely the reason why the prior cases h...

Jones v MJJ Products

As case law establishes, the parties' conduct cannot prove a meaning that flatly contradicts sections 4(a). (Consolidated World Investments, supra, 9 Cal.App.4th at p. 379.) Therefore, the 10 percent of record sales formula in section 4(a) cannot also mean the formula Jones advocates for sharing net receipts for Master use licenses. Presuming for the sake of argument that Jones is trying to suggest that the parties understood that "record" and "sales" independently mean all economic events, including the payment of Master use license fees, we reject any suggestion that these words are terms of art in the music industry that are understood to mean all economic events. There is no evidence that it is custom and practice in the industry for the words "record" and "sales" to signify sales as well as license fees for Master uses. The extrinsic evidence introduced below, in fact, indicates that the music industry refers to license fees in a unique manner that does not involve the words "record" or "sales." Section 12 of the 1985 producer agreement states that "if any Master hereunder is utilized in any . . . [videoshow] which is commercially exploited by us or by our authority, then . . . your royalty account hereunder shall be credited in accordance with the foregoing: [¶] (i) There shall be credited to your royalty account hereunder an amount equal to our Net Receipts . . . in respect of such commercial exploitation of such Videoshow multiplied by a fraction, the numerator of which is one-half (1/2) of your basic royalty rate . . . and the denominator of which is our royalty rate under the Recording Agreement which corresponds to your royalty rate[.]" Section 9.03 of the 1981 recording agreement refers to net receipts in the context of a Master "leased by [Sony] to others[.]" The evidence shows that net receipts is the key phrase tied to license income.

Aviles Rodriguez v LA Community College District

Appellant failed to raise a triable issue of material fact regarding whether the District's proffered reasons were pretextual. There is strong evidence that the committee members' and President Perez's reliance on those reasons was genuine. First, appellant admitted many facts underlying the proffered reasons, including the facts that: (1) Paulsen told appellant not to schedule office hours that conflicted with committee meetings, and understood that he nevertheless did so; (2) Paulsen believed appellant had authorized work by Wired Studios without an approved contract; (3) Paulsen believed appellant failed to take responsibility for his actions in his emails concerning the cooperative education idea that had been put on hold; (4) appellant never responded to Paulsen's email reiterating a request from Allen to respond to Paulsen's earlier emails in a manner outlining acceptance of his responsibilities; (5) appellant prepared a syllabus waiving a required course paper for any student who participated in the drama club's cemetery play; (6) Paulsen received a report that appellant had canceled a class to attend a production of the cemetery play; and (7) a District administrative regulation provided that no persons could attend a student-club field trip without signing waivers, which appellant admittedly did not collect before taking drama-club students to the cemetery for a photo shoot. Second, though appellant argues that the committee intentionally induced his purported failings in order to set him up for tenure denial, he fails to explain how that theory is consistent with the committee's delivery of an entirely favorable third-year review. Finally, appellant admitted that President Perez eventually concluded, after conducting interviews of appellant, the committee members, and others, that appellant's "responsibilities to interact and communicate with peers, fulfilling his professional responsibilities, and participation in professional development activities wer...

Hooked Media Group v Apple

The elements of Hooked's fraud cause of action are that the defendant made a false representation about a past or existing fact with the intent to deceive, and the plaintiff detrimentally relied on the representation. ( Lazar v. Superior Court (1996) 12 Cal.4th 631, 638, 49 Cal.Rptr.2d 377, 909 P.2d 981.) The elements of negligent misrepresentation are the same, except for the intent to deceive; for negligent misrepresentation it is enough that the defendant made a representation without a reasonable basis for believing it to be true. ( West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792, 154 Cal.Rptr.3d 285.) Hooked alleges three separate misrepresentations: (1) Apple would keep confidential any information it got from Hooked; (2) Apple would not use any confidential information it got from Hooked; and (3) Apple would deal directly and negotiate only with Hooked's CEO regarding hiring the Hooked engineers. Those representations all involve future events, not past or existing facts. Broken promises regarding future conduct may be actionable as promissory fraud, but only if the promisor did not actually intend to perform at the time the promise was made. ( Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 159, 2 Cal.Rptr.2d 861.) For Hooked to survive summary judgment, there must be evidence that when Apple gave the three assurances about its future conduct it did not intend to honor them. We do not find any such evidence in the record. There are no facts that would allow one to reasonably infer that Apple's initial intent was anything other than to negotiate an acquisition (even if only an "acqui-hire"). An internal e-mail sent shortly after the second acquisition meeting indicates that at the time (early August 2013), Apple wanted to "interview the team and explore an aqui-hire type scenario," but would refrain from doing so without the agreement of Hooked's CEO. Later e-mails show Apple did not change its mind and decided to approac...

City of Watsonville v Bosler

An RDA memorandum dated January 20, 2011, stated as its subject: "Cooperation Agreements between City and [RDA] Authorizing Expenditure of Tax Increment Funds for Specified Public Improvements and Redevelopment Activities and Adopting Findings Required by . . . Section 33445." The memorandum addressed this as an agenda item for the January 25, 2011, joint meeting of the Watsonville City Council (the City Council) and the RDA. The recommendation in the memorandum was to "[a]dopt a resolution approving a Cooperation Agreement between the City . . . and the [RDA] and making certain findings by which the City will implement and carry out specified public projects to be funded by the" RDA. The memorandum began its discussion of the relevant background by noting that, on January 10, 2011, the Governor in his state budget proposal proposed the elimination of RDAs, and further noted the likelihood of urgency legislation which would prevent RDAs from entering into new debt obligations and "would capture all tax increment and bond proceeds that the [RDAs] had not encumbered." The memorandum noted that the RDA's Watsonville 2000 Redevelopment Project Area had approximately $4 million that had "not yet officially been encumbered," and observed that it was possible this money would be redirected. The RDA staff recommended that the City Council and the RDA board consider entering into a cooperation agreement to be executed and become effective prior to the urgency legislation so that the RDA could "create a debt obligation in advance of the urgency legislation." By this cooperation agreement, the RDA intended to "obligate both existing funds and future property tax increment in the project area for implementation of [a] list of public improvement projects that the City would include in its capital improvement plan or similar document." The memorandum specified that "[a]pproval of the Cooperative Agreement is not necessarily approval of the projects contained on the list, many of ...

Blumenthal v Jones

Blumenthal opposed Jones's motion to compel arbitration. In a detailed statement of decision, the trial court denied the motion, finding bad faith and a waiver by Jones of arbitration. The court expressly found: "In this case, Defendants knew from the beginning that the 2009 arbitration agreement existed and that it covered most of the claims raised in the Original Complaint. But they chose to litigate the case in this Court for over nine months, attempting to dispose of the case through two demurrers and a motion to strike, and arranging for the scheduling of a jury trial. They also engaged in discovery conduct similar to that described in Adolph, [supra, 184 Cal.App.4th 1443], engaging in a months-long meet-and-confer process regarding discovery demands without ever producing documents. They did not request arbitration or file a motion to compel arbitration until after their demurrers were largely overruled and Plaintiff had filed a motion to compel discovery and impose sanctions on Defendants. All the while, they would have been aware that Plaintiff was incurring substantial costs in litigating the case, and that referring the case to arbitration would entail a stay of these proceedings and delay any decision on the merits of Plaintiff's claims. It is apparent that this was part of a deliberate strategy by Defendants to use the litigation process to their advantage if possible, and pursue arbitration only if that failed."

Tuckwell v State Personnel Board

In June 2012, the DSS filed a notice of adverse action (NOAA) with the SPB, dismissing Tuckwell from her position as staff counsel with the DSS. The NOAA alleged Tuckwell violated 10 "subsections" of Government Code section 19572, including: "(b) Incompetency; [¶] (c) Inefficiency; [¶] (d) Inexcusable neglect of duty; [¶] (e) Insubordination; [¶] (f) Dishonesty; [¶] (m) Discourteous treatment of the public or other employees; [¶] (o) Willful disobedience; [¶] (p) Misuse of state property; [¶] (r) Incompatible activity; and [¶] (t) Other failure of good behavior either during or outside of duty hours, which is of such a nature that it causes discredit to the appointing authority or the person's employment." The charges of the NOAA were based primarily on allegations that Tuckwell (1) made "inappropriate, unethical, and unprofessional" comments to witnesses and DSS staff about testimony by DSS staff members in a pending adverse disciplinary action against her with the purpose to intimidate and chill their possible future testimony; (2) refused to answer certain questions, made discourteous comments, and gave evasive, dishonest responses to Charles de Cuir, an administrative law judge who was charged with investigating her conduct; (3) inappropriately directed an applicant for a family child care home license (Ms. Al-Bakari) to speak directly with the regional manager for the CCLD (Barbara Bobincheck) while her application was pending, insulted Bobincheck, inappropriately told the court the DSS was going to amend the accusation without having consulted with the CCLD (the client), and subsequently denied wanting to amend the accusation (hereafter the Al-Bakari matter); (4) directed a paralegal (Susanna Lacayo) to order an expensive transcript and subpoena a witness regarding an exemption matter that could have been proven with certified records of arrests and convictions (hereafter the Lopez matter); (5) sought direction from her supervisor (Darryl East) on a menial ca...

People v Salinas

Ricardo P. held that the electronics search condition was invalid under Lent's third prong because, on the record before it, the burden it imposed on the minor's privacy was substantially disproportionate to the countervailing interests of furthering his rehabilitation and protecting society. (Ricardo P., supra, 7 Cal.5th at p. 1119.) There was nothing in the record to suggest the minor had "ever used electronic devices to commit, plan, discuss, or even consider unlawful use or possession of drugs or any other criminal activity. The juvenile court instead imposed drug-related conditions because of statements by [the minor] in the probation report that 'he wasn't thinking' when he committed the offense and that 'he stopped smoking marijuana after his arrest because he felt that [it] did not allow him to think clearly.' The court then added the electronics search condition based on its observation that teenagers 'typically' brag about such drug use on social media." (Ibid.) Ricardo P. concluded that this probation condition was not reasonably related to future criminality since there was nothing in the record to show the minor "had used or will use electronic devices in connection with drugs or any illegal activity." (Id. at p. 1116.)

Golden State Bank v Monterey County Bank

The obligations of Monterey, as Lead Bank, delineated under the Agreement consist exclusively of duties that may be characterized as relating to the funding and administration of the Loan, including communications with the Participants relative to the Loan and remittance of payments to them. These duties include (1) funding additional advances to the borrower as provided in the Loan documents; (2) delivery to Participants of a statement of the total amount advanced to the Borrower and the respective portions advanced by the Lead Bank and the Participants; (3) determining the necessity of additional expense advances to preserve or protect the contracting parties' interests in the Loan and/or the Collateral; (4) providing timely notice to the Participants of additional expense advances and a request for payment of their pro rata shares of the expenses; (5) payment of a participant's pro rata share of an additional expense advance in the event of a participant's nonpayment; (6) making "final disposition of the Collateral" after payment of all amounts due to the Lead Bank and Participants; (7) maintaining and preserving all loan documents; (8) providing Participants with current information regarding the status of the Loan; (9) administering "the Loan, the Collateral, and any related guaranties as though it were the sole owner and holder thereof"; (10) paying Participants a specified portion of the loan fees paid by the Borrower; (11) collecting all payments made by the Borrower or on the Borrower's account, and distributing those Loan payments in pro rata shares to the Participants; (12) after the Borrower's default, and upon written consent of the Participants, taking action on such default with respect to the Loan or related obligations; and (13) notifying the Participants in the event Monterey obtained "actual notice or knowledge of any loss or dramatic decline in value of the Collateral or adverse change in the financial condition of the Borrower, co-maker, guaran...

People v Bunch

Our colleagues at the Second Appellate District reversed. With respect to the court facilities and court operations assessments, the court held, "due process of law requires the trial court to conduct an ability to pay hearing and ascertain a defendant's present ability to pay before it imposes [these] assessments." (Dueñas, supra, 30 Cal.App.5th at p. 1164.) The court noted the constitutional guarantees of due process and equal protection prohibit a state from "inflict[ing] punishment on indigent convicted criminal defendants solely on the basis of their poverty." (Id. at p. 1166, citing Griffin v. Illinois (1955) 351 U.S. 12, 17 (Griffin).) Analogizing the imposition of these mandatory assessments without first determining an ability to pay to the situation in which a convicted defendant is required to serve jail time if he or she is unable to pay a fine and penalty assessment (invalidated by our Supreme Court in In re Antazo (1970) 3 Cal.3d 100, 103 (Antazo)) and the situation in which an indigent convicted defendant's probation is automatically revoked upon his or her failure to pay a fine and restitution (invalidated by the United States Supreme Court in Bearden v. Georgia (1983) 461 U.S. 660, 667-668 (Bearden)), the Dueñas court stated: "Imposing unpayable fines on indigent defendants is not only unfair, it serves no rational purpose, fails to further the legislative intent, and may be counterproductive. A fine on indigent people 'is not imposed to further any penal objective of the State. It is imposed to augment the State's revenues but obviously does not serve that purpose; the defendant cannot pay because he [or she] is indigent . . . .' [Citations.] Poor people must face collection efforts solely because of their financial status, an unfair and unnecessary burden that does not accomplish the goal of collecting money." (Dueñas, supra, at p. 1167.) The court concluded such a burden "in effect transform[s] a funding mechanism for the courts into additiona...

Mosley v Pacific Specialty Insurance

Thatcher does not hold that the moving party's failure to carry its initial burden on summary judgment is an exception to the general rule that arguments not presented in the trial court are forfeited. Moreover, the majority opinion's application of such an exception in this case is particularly inequitable. PSIC's summary judgment motion on its face appeared to be complete and well supported. The motion cogently argued that the undisputed facts showed that all of the Mosleys' causes of action failed as a matter of law, and the motion was accompanied by supporting evidence. The Mosleys filed written opposition and did not argue that PSIC had failed to carry its initial burden. The trial court did not take any shortcuts. It evaluated the arguments and evidence presented by the parties, determined that PSIC had carried its initial burden, rejected the Mosleys' meritless arguments in opposition, and accordingly granted the motion. Given the majority opinion's approach, however, the trial court was required to do much more than that in order to avoid reversal—it had to locate out-of-state authorities from the 1930s that no party has ever cited (even on appeal), synthesize them into an interpretation of section 2071 that no party has ever advocated (even on appeal), and use that interpretation to support an argument that the Mosleys did not make, namely, that PSIC had failed to carry its initial burden. This case thus presents a clear illustration of the reasons for the forfeiture rule: "It would be manifestly unjust to the opposing parties, unfair to the trial court, and contrary to judicial economy to permit a change of theory on appeal." ( North Coast Business Park v. Nielsen Construction Co., supra , 17 Cal.App.4th at p. 29, 21 Cal.Rptr.2d 104.) For all of the foregoing reasons, I respectfully dissent. The properly preserved arguments raised by the Mosleys on appeal are meritless, so I would affirm the judgment in favor of PSIC.

VVA Two v Impact Development Group

A judgment resulting from an arbitration award is appealable pursuant to the same rules governing any "judgment in a civil action of the same jurisdictional classification." (§ 1287.4 ["[i]f an award is confirmed, judgment shall be entered in conformity therewith" and "is subject to all the provisions of law relating to[ ] a judgment in a civil action of the same jurisdictional classification"]; § 1294.2 [appeal from judgment resulting from arbitration award "shall be taken in the same manner as an appeal from an order or judgment in a civil action"].) We apply these rules and conclude that the judgment resulting from the award here is appealable, because it is a final judgment that, under the circumstances that existed at the time the arbitrator issued it, finally resolved all issues between the parties. (See California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1, 9, 270 Cal.Rptr. 796, 793 P.2d 2 ["judgment that leaves no issue to be determined except the fact of compliance with its terms is appealable"]; see Doudell v. Shoo (1911) 159 Cal. 448, 453, 114 P. 579 ["judgment is final ‘when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined’ "].) As previously noted, at the time the arbitrator issued the award, RBC had not refused to consent. As long as that circumstance does not change, the award will remain a final resolution of all issues between the parties. In this respect, the remedy in the award is only potentially incremental—and nothing in the record makes that potential "likely" to materialize. (Cf. Hightower, supra , 86 Cal.App.4th at p. 1427, 104 Cal.Rptr.2d 209 [reviewing an order denying motion to vacate arbitration award where award "specified that the arbitrator reserved jurisdiction to determine a number of specific additional issues likely to arise" following implementation of the partial award] (italics added & omitted).) Thus, und...

People v Conway

In response to the note, the trial court questioned Juror No. 12. The following exchange occurred: "THE COURT: We are in receipt of your juror note. All attorneys have been provided with that note. Would you please let me know what prompted the writing of that note. [¶] JUROR 12: So as we were starting I received some information from one of my fellow jurors [Juror No. 5], that they had looked up counsel. This was before I was voted as the foreman of the jury. [¶] ... [¶] THE COURT: Okay. And when Juror No. 5 let you know that, did you respond in any way? [¶] JUROR 12: Yes, I did. [¶] THE COURT: And what did you say? [¶] JUROR 12: I said that she shouldn't have looked anything up. That she needs to set this aside, that we need to continue with the information we received in court only. [¶] ... [¶] THE COURT: All right. So then what happened? [¶] JUROR 12: So we started deliberating. And as we deliberated through these past days small pieces of information would come out that I knew weren't part of the case that we heard in court. It was extra information and ... to the credit of other jurors, they would say that wasn't part of the case. [¶] THE COURT: Could you give me examples, please. I don't want to know what the other jurors specifically said. [¶] JUROR 12: Yes. She said that the City was working on a large gang crackdown currently. I can't remember what the phrase was that she had - - she [had] a title for it or something, but I can't recall what the title was. [¶] THE COURT: Okay. Anything else? [¶] Most - - so what drove me to write the letter was the most recent where .... she kept talking about a .... Penal Code that we didn't have in our instructions. And I kept asking her, where is this in the instructions that we've received? Where is it? And the argument was evolving to, I know it was read to us. And contention began to spring in the jury. And I didn't want ... name calling. I stopped it there. And then we were silent for a while. [¶] ... [¶] JUROR 12: ...

Valero Ref v Bay Area Air Quality Management District Hearing Board

We start with the general principle that the hearing board was required to exercise its independent judgment in deciding Valero’s appeal. It could not blindly ratify the APCO’s decision but, rather, was required to decide the merits of the issues for itself. On appeal, this basic proposition does not appear to be in contention. The superior court concluded that the hearing board’s standard of review encompassed the obligation to exercise independent judgment; Valero argues the trial court "properly recognized that Rule 3.6 effectively restates the independent standard of review"; and the air district parties embrace this understanding of the hearing board’s standard of review as well. They argue the hearing board properly "applied its own independent judgment," and equate the board’s standard of review with the principles of judicial review prescribed in Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 78 Cal.Rptr.2d 1, 960 P.2d 1031 ( Yamaha ). Under Yamaha , our Supreme Court’s seminal decision establishing the framework for assessing the amount of judicial deference an administrative interpretation is entitled to by the courts, " ‘The standard for judicial review of agency interpretation of law is the independent judgment of the court, giving deference to the determination of the agency appropriate to the circumstances of the agency action.’ " ( Id. at p. 8, 78 Cal.Rptr.2d 1, 960 P.2d 1031.) Moreover, our independent research has revealed cases in which an independent review standard has been held applicable to administrative entities acting in a reviewing capacity that, like the hearing board, have the power to take evidence, hear from witnesses, entertain argument and render a decision. (See Quintanar v. County of Riverside (2014) 230 Cal.App.4th 1226, 1233-1235, 179 Cal.Rptr.3d 82 ( Quintanar ) [hearing officer presiding over appeal of employee disciplinary proceeding pursuant to county collective bargaining agreement required to exe...

People v Smith 2

The cases appellant cites to support his contention his declarations were sufficient to constitute good cause to support holding an in camera hearing, do not alter our conclusion. In both cases, People v. Hustead (1999) 74 Cal.App.4th 410 and Brant v. Superior Court (2003) 108 Cal.App.4th 100, the appellate court found the defendant had alleged good cause for an in camera hearing of officer personnel records. Both cases are distinguishable because in both cases defense counsel described with specificity what was false in the reports authored by the officers, and offered an alternative set of facts. In Hustead, the defendant was charged with felony evasion of arrest and resisting arrest. (Hustead, supra, at p. 412.) Defense counsel asserted in the Pitchess declaration that the arresting officer fabricated the defendant's alleged dangerous driving maneuvers. Defense counsel also stated that the defendant asserted that he did not drive in the manner described by the report and that his driving route was different from that found in the report. (Hustead, supra, at p. 417.) In Brant, the defendant was charged with possession of a controlled substance. (Brant, supra, at p. 103.) The defendant's motion disclosed his defense was that the arresting officers did not have reasonable suspicion to detain him and that his confession was obtained without advising him of his Miranda rights. (Brant, supra, at p. 108.) Defense counsel asserted in his declaration that the arresting officers lied about the defendant's car stereo being too loud in order to stop him, and that the loud music was coming from nearby nightclubs. Defense counsel also stated that the defendant was placed in custody, questioned and confessed without an advisement of his rights. (Id. at p. 108.)

Broomall v Corvino

The quoted language comes from the court's analysis of the third element needed to give rise to a presumption of undue influence, i.e., that the person (or persons) alleged to have exerted undue influence would benefit unduly (or, as the court stated, "unduly profit") from the testamentary instrument. In that context, the court observed it would not have been unusual for Theresa to provide more for Joseph than Marcelle, in light of Joseph's infirmities. But it found that the dramatic change in Theresa's estate plan—from leaving all of her assets to Marcelle (who had taken care of Teresa for decades) in the 2001 trust, to creating a new trust that entirely disinherited Marcelle while adding grandchildren who had been estranged and absent for more than a decade—established the undue benefit element. In the language cited by Stephanie and Alexandria (with the addition of the language they omitted), the court acknowledged that the relationship between Theresa and Marcelle had been one with filled with quarrels. However, it declined to give weight to those quarrels in determining whether Stephanie and Alexandria unduly benefited from the testamentary instruments. The reason: because "[f]ighting with each other was their normal way of relating to each other" for many years. As the trier of fact, the court was empowered to weigh the evidence in determining whether Marcelle satisfied the elements giving rise to a presumption of undue influence. (Sarabia, supra, 221 Cal.App.3d at p. 605 ["It is for the trier of fact to determine whether the presumption will apply"].) The court did not apply an incorrect standard.

People v Johnson 3

Defendant's appointed counsel filed a motion for a new trial, which listed nine separate grounds defendant claimed established his trial counsel's ineffectiveness: (1) multiple continuances between January 11, 2017, and April 17, 2017; (2) the failure to continue the trial to a date when counsel felt well enough to proceed; (3) the failure to remain awake and alert during trial; (4) the failure to use all of the time allotted to present a defense; (5) the failure to defend defendant "correctly"; (6) the failure to prepare witness statements prior to trial testimony to ensure proper impeachment; (7) the failure to present an opening argument; (8) a statement in closing argument that defendant could be found guilty of second degree murder; and (9) evidence was not fully presented and "exploited." No additional argument was supplied in making these assertions, and only one citation to the record was provided. The motion was accompanied by a declaration of defendant, listing defendant's observations and opinions about his trial counsel's work product and performance. He indicated his counsel was not in good health when he conducted the trial; counsel did not remain awake and alert during trial, and he fell asleep more than once; counsel did not use all of the time allotted for the defense; counsel did not defend defendant "correctly"; counsel was not prepared for cross-examination and did not read witness statements prior to trial testimony; counsel failed to give an opening argument; counsel told the jurors they could convict him of second degree murder; and the evidence "was not fully presented and exploited" in defendant's defense.

P and M Vanderpoel Dairy v Agriculture Labor Relations Board

Here, we agree with the Board that the present case is readily distinguishable from Abatti Farms and Ad Art Inc. Martinez testified at length about his efforts to find work during the backpay period, and about his interim employment and earnings. His memory was at times sketchy or uncertain about details, but the General Counsel utilized EDD records to supply further supporting evidence to corroborate interim earnings. Although it is true that Martinez admitted to having certain paystubs at home, and no specific explanation was articulated by him for not furnishing them or other such documents, if any existed, to the Field Investigator, there is nothing in the record to require a finding that Martinez's failure in this respect involved willful concealment on his part as opposed to mere inadvertence or poor record keeping. Instead, the ALJ—who observed Martinez's demeanor and heard his testimony firsthand—found Martinez to be sincere, forthright and credible, despite any poor record keeping and uncertainty as to memory. Moreover, there is nothing in the record to suggest that Martinez willfully concealed interim earnings, destroyed records, fabricated testimony or attempted to influence witnesses. As the Board explained in affirming the ALJ's decision in this case, Martinez's conduct was simply not on par with what occurred in Abatti Farms or Ad Art Inc. The Board stated: "At worst, Martinez failed to keep accurate records of his pay and, at times, failed to recall the specifics of when and where he worked, and how much he was paid. The cumulative effect of Martinez's conduct does not rise to the level where it is impossible to ascertain reasonable earnings or his efforts to find comparable employment and, thus, we do not find that Martinez failed to cooperate with the General Counsel's investigation."

In re EE

R.V. is one of the earliest opinions to say the statutory presumption applies in a case where the child had not been adjudicated a dependent under a section 300, subdivision (e). (See also In re Cole C. (2009) 174 Cal.App.4th 900, 917, 95 Cal.Rptr.3d 62 ( Cole C. ) [presumption applied even though child was adjudicated a dependent under § 300, subd. (j) based on the father's excessive discipline of the child's older stepsiblings].) The child in R.V. had been adjudicated a dependent under section 300, subdivision (j) based on the father's sexual abuse of an older sister. The appellate court stated the jurisdictional findings against father were "prima facie evidence the child cannot safely remain in the home." ( R.V., supra , 208 Cal.App.4th at p. 849, 145 Cal.Rptr.3d 772.) The court's only citation to support this proposition was section 361, subdivision (c)(1), which, as just explained, limits the statutory presumption to section 300, subdivision (e). ( Ibid. ) After Cole C. and R.V. , other appellate courts followed suit, similarly overlooking the limitation on the presumption. (E.g., Hailey T., supra , 212 Cal.App.4th at p. 146, 151 Cal.Rptr.3d 1 [presumption applied even though child was adjudicated a dependent under § 300, subd. (a) ]; In re John M. (2012) 212 Cal.App.4th 1117, 1126, 151 Cal.Rptr.3d 620 [same, in a § 300, subd. (b) case]; In re T.V. (2013) 217 Cal.App.4th 126, 135, 157 Cal.Rptr.3d 693 [same]; In re A.E. (2014) 228 Cal.App.4th 820, 825, 175 Cal.Rptr.3d 629 [same, in a § 300, subds. (a) & (b) case]; In re J.S. (2014) 228 Cal.App.4th 1483, 1492, 176 Cal.Rptr.3d 746 [same, in a § 300, subd. (b) case]; In re A.F. (2016) 3 Cal.App.5th 283, 289, 292, 207 Cal.Rptr.3d 489 [same].) The recent trend in misreading section 361, subdivision (c)(1) is not without real consequences. Applying the presumption to all dependency cases effectively "deprives parents of appellate review of removal if there was a sufficient evidentiary basis for jurisdiction." ( In ...

Robertson v Saadat

The court in Davis quoted an ethics opinion from The American Fertility Society, which stated " ‘decision-making authority regarding preembryos should reside with the persons who have provided the gametes’ " because " ‘[a] person’s liberty to procreate or to avoid procreation is directly involved in most decisions involving preembryos.’ " ( Davis , supra , 842 S.W.2d at p. 597.) The Davis court concluded that the divorcing couple did not have a "true property interest" in the preembryos, which, given their "potential for human life," could not be deemed property. ( Ibid. ) However, in line with the quoted ethics opinion, the couple "d[id] have an interest in the nature of ownership, to the extent that they have decision-making authority concerning disposition of the preembryos." ( Ibid. ) The Hecht court similarly concluded "that at the time of his death, decedent had an interest, in the nature of ownership, to the extent that he had decisionmaking authority as to the use of his sperm for reproduction. Such interest is sufficient to constitute ‘property’ within the meaning of Probate Code section 62. Accordingly, the probate court had jurisdiction with respect to the vials of sperm." ( Hecht , supra , 16 Cal.App.4th at p. 850, 20 Cal.Rptr.2d 275.) The Court of Appeal emphasized, however, that "sperm as reproductive material" was "a unique type of ‘property’ " not subject to "the general law relating to gifts of personal property or the statutory provisions for gifts in view of impending death." ( Ibid. )

People v Robinson

Specifically, " '[t]he constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, [citation], but [the Supreme Court] ha[s] recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.' . . . Our state Constitution guarantees that '[t]he defendant in a criminal cause has the right . . . to be personally present with counsel, and to be confronted with the witnesses against the defendant.' (Cal. Const., art. I, § 15.)." (People v. Gutierrez (2003) 29 Cal.4th 1196, 1202, citation omitted (Gutierrez).) " "The state constitutional right to be present at trial is generally coextensive with the federal due process right.' " (People v. Butler (2009) 46 Cal.4th 847, 861.) "Sections 977 and 1043 implement the state constitutional protection. . . . Section 977, subdivision (b)(1), provides: 'In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. . . .' Section 1043, subdivision (a), states that '[e]xcept as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial.' " (Gutierrez, at p. 1202.) Section 1193, subdivision (a), provides that "[i]f the conviction is for a felony, the defendant shall be personally present when judgment is pronounced against him or her, unless the defendant, in open court and on the record, or in a notarized writing, requests that judgment be pronounced against him or her in his or her absence, and that he or she be represented by an attorney when judgment is pronounced, and the court approves his or her absence during the pronouncement of judgment, or unless, after the exercise of reasonable diligence to procure the presence ...

Patterson Frozen Foods v California Valley Land

The causes of action in the fourth amended complaint exemplify PFF's contract claims. The first cause of action for breach of contract (water) alleges in part: "The defendants are now bound by the WWDA [easement and waste water discharge agreement] and Grant Deed as they are successors in title to the Dominant Property. [¶] After being apprised of their obligation to deliver water pursuant to the WWDA and Grant Deed, all the defendants . . . failed and refused to so deliver water and said refusal is a material breach of the agreement. [¶] As a direct and proximate consequence of the defendants' breach, the plaintiffs have suffered damages . . . , in addition to attorneys' fees and costs authorized by the contract." The second cause of action for breach of contract (maintenance) in the fourth amended complaint is similar, alleging that "defendants . . . breached the terms and conditions of the agreement by failing to inspect and maintain the Facility Property" and seeking "attorneys' fee and costs authorized by the contract." The sixth cause of action for declaratory relief in the fourth amended complaint provides another example of PFF's contract allegations. That cause of action states in part: "PFF desires a judicial determination of the parties' rights and duties as to the WWDA . . . and a declaration as to the binding effect of the WWDA and Grant Deed on the Purchaser Defendants, their responsibility for the delivery of water."

People v Triplett

In Smith v. Shankman , supra , 208 Cal.App.2d 177, 25 Cal.Rptr. 195, the jury asked a court bailiff during deliberations for the transcript of the defendant's testimony. ( Id. at p. 181, 25 Cal.Rptr. 195.) The bailiff informed them they could not have it. ( Ibid. ) This was error because the bailiff was not permitted to communicate with the jurors on a matter other than to determine whether they had reached a verdict. ( Id. at p. 184, 25 Cal.Rptr. 195.) Relevant here is the court's discussion of prejudice. "Although it is true," the court explained, "that the bailiff was technically correct in instructing the jurors that the written transcript itself could not be given to them, it does not follow that his misconduct was of no consequence. ‘While the jury's action did not constitute in so many words a request for a reading of some portion of the transcript, such action can reasonably be interpreted only as such a request....’ [Citation.] Had the bailiff properly deferred action on the jury's request until the trial judge had returned ..., the jury could then have been brought into open court ... and the judge could have inquired whether they desired to have portions of the relevant testimony reread. As a result of the bailiff ’s failure to follow this procedure, the jury's request for the transcript was denied in such a manner as to indicate that there was no alternative method by which they could review testimony which they obviously considered important." ( Ibid. ) If, however, the court had been informed of the request and "offered to have the relevant testimony reread to the jury, it is entirely possible, as a practical matter, that its verdict might have been affected." ( Id. at p. 185, 25 Cal.Rptr. 195.) Smith ’s reasoning was adopted and applied under similar facts in a criminal case in York , supra , 272 Cal.App.2d at pages 465–466, 77 Cal.Rptr. 441.

People v Bator

For example, in Stoll, supra, 49 Cal.3d 1136, a molestation case, our Supreme Court held the Kelly, supra, 17 Cal.3d 24 test did not apply to proposed expert psychological testimony, based in part on the administration of certain psychological tests, that one of the defendants did not possess "any 'pathology' in the nature of 'sexual deviation.' " (Stoll at pp. 1146-1147.) The Stoll court first explained the "narrow 'common sense' purpose" behind the Kelly rule is "to protect the jury from techniques which, though 'new,' novel, or ' "experimental," ' convey a ' "misleading aura of certainty." ' [Citations.]" (Stoll at pp. 1155-1156.) Under Kelly, the jury must be protected from such techniques until "the pertinent scientific community no longer views them as experimental or of dubious validity," particularly where "the unproven technique or procedure appears in both name and description to provide some definitive truth which the expert need only accurately recognize and relay to the jury. The most obvious examples are machines or procedures which analyze physical data. Lay minds might easily, but erroneously, assume that such procedures are objective and infallible." (Stoll at p. 1156; see, e.g., People v. Leahy, supra, 8 Cal.4th at p. 606 [horizontal gaze nystagmus (HGN) test for probable intoxication subject to Kelly test as a new scientific technique]; see also People v. Shirley (1982) 31 Cal.3d 18, 51-52 [listing cases in which the Kelly test has been applied to polygraph examinations, "truth serum," experimental systems of blood typing, voiceprint analysis, identification of human bite marks, and microscopic identification of gunshot residue particles].) The Stoll court also acknowledged the Kelly test "has been applied to less tangible new procedures which carry an equally undeserving aura of certainty," citing Shirley, in which the court applied the test to bar the admission of " 'post-hypnotic' testimony of a rape complainant," but explained that "absent so...

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