California > Court of Appeal > 2020

California Courts of Appeal | Top Cases | July 2020

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Abatti v Imperial Irrigation Dist 1

Abatti's reliance on City of Barstow v. Mojave Water Agency (2000) 23 Cal.4th 1224, 99 Cal.Rptr.2d 294, 5 P.3d 853 is misplaced. In that case, the superior court entered a judgment in a water dispute without regard to existing overlying and riparian rights, and found it unnecessary to adjudicate individual rights, due in part to its view that the solution that the court had arrived at was consistent with reasonable use. ( Id. at pp. 1237-1238, 99 Cal.Rptr.2d 294, 5 P.3d 853.) On review, the Supreme Court held that the superior court could not "disregard legal water rights in order to apportion on an equitable basis water rights to all producers in an overdrafted groundwater basin." ( Id. at pp. 1239-1240, 99 Cal.Rptr.2d 294, 5 P.3d 853 ; id. at p. 1248, 99 Cal.Rptr.2d 294, 5 P.3d 853 ["we have never endorsed a pure equitable apportionment that completely disregards ... owners' existing rights"].) In this case, no overlying or riparian rights were at issue; rather, the District was apportioning water among users with a right to service, not among holders of different water rights. Finally, Abatti contends that there is substantial evidence to support the superior court's finding that straight line apportionment encourages waste, in violation of the state constitution. We have already concluded that the superior court's reasoning is flawed in this regard; although the court focuses on the default straight line apportionment method, the agricultural allocation gives the Board discretion to select among multiple apportionment methods and the EDP also includes sharing within farm units and a clearinghouse. Abatti's specific arguments here are no more persuasive. He first cites Willard v. Glenn-Colusa Irrigation Dist. (1927) 201 Cal. 726, 258 P. 959 to suggest that straight line apportionment is inequitable. In that case, the California Supreme Court held that irrigation districts may charge rates in lieu of assessments, and noted potential issues with assessment systems...

Gerawan Farming v Agriculture Labor Relations Board

Gerawan's failure to offer a business justification for its opposition to the Union's proposal and to make any effort to assess the costs of implementing a checkoff system is indicative of bad faith bargaining. (See Dal Porto, supra , 163 Cal.App.3d at pp. 551–552, 210 Cal.Rptr. 241.) Gerawan points to the mediator's discussion of this issue in his report as supporting its opposition to an agency shop. While the mediator recognized the Union's absence had raised a thorny issue, as "[a]ll other things being equal, the imposition of membership fees to support an organization that most of the Employer's employees have had little if anything to do with would appear to be a bit of an overreach," the mediator determined all things were not equal. Instead, the mediator, in adopting the Union's proposal in its entirety, found Gerawan's perspective on union dues and fees "is cast in dark tones and ascribes to the Union some nefarious, self-serving purpose in collecting them"; Gerawan presumed to speak on the employees' behalf, "which in itself is a conflict of interest, claiming that the Union's bargaining efforts are ‘unwanted’ "; and in the face of directly contradictory statutory language in sections 1153, subdivision (c) and 1154, subdivision (b), Gerawan asserted the "imposition of agency fees was inconsistent with the ALRA's protections of freedom of association and self-organization." In sum, substantial evidence on the record considered as a whole supports the Board's finding that "Gerawan opposed the UFW's request and maintained its own rigid adherence to its ‘Right to Work' proposal based solely on its philosophical opinions as to its employees' free choice rights and its fervent opposition to the UFW's status as its employees' exclusive bargaining representative. It never truly considered the UFW's proposal, and admittedly took no effort to assess what the costs, if any, of implementing a check-off system would be." The Board's inference that Gerawan's conduct wi...

Johnson v Monsanto

Since Monsanto appealed, the U.S. Supreme Court has clarified that the question whether a federal agency would not have approved a label change (thus preempting a state-law failure-to-warn claim) is for a judge, not a jury. (Merck Sharp & Dohme Corp. v. Albrecht (2019) ___ U.S. ___ [139 S.Ct. 1668, 1672] (Albrecht).) But evidence about whether the EPA might have approved a cancer warning was largely presented for the first time on appeal, and we, as a reviewing court, are not in the best position to evaluate it. As we have mentioned, after Monsanto filed its opening brief it submitted materials that it claims shows that the EPA currently would reject a cancer warning on the labels of Roundup products. For example, in Monsanto's combined appellant's reply brief/cross-respondent's brief, it cites an April 2019 EPA "Proposed Interim Registration Review Decision" regarding registration requirements for glyphosate. The document states, as Monsanto witnesses testified below, that the EPA has not found human-health risks from exposure to glyphosate. Then, after completing its appellate briefing, Monsanto filed a notice of new authority (Cal. Rules of Court, rule 8.254) and directed the court to an August 7, 2019 EPA letter to a "Registrant" declining to approve a label that included a warning about glyphosate under Proposition 65, California's Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5 et seq.). The letter states that since the EPA has determined that glyphosate is not likely to be carcinogenic to humans, any such warning would be "false and misleading" under FIFRA. (7 U.S.C. § 136(q)(1)(A).) Lastly, Monsanto sought judicial notice of an amicus brief the United States has filed in its support in the Ninth Circuit. (Monsanto Company v. Hardeman (9th Cir. No. 19-16636).) In that case, the federal government has taken the position that FIFRA preempts state tort claims that would subject pesticide manufacturers to what it characterize...

People v Fifita

CALCRIM No. 520, as given below, provided: "The defendants are charged with murder in violation of Penal Code section 187. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. A defendant committed an act that caused the death of another person; [¶] AND [¶] 2. When that defendant acted, he had a state of mind called malice aforethought. [¶] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [¶] A defendant acted with express malice if he unlawfully intended to kill. [¶] A defendant acted with implied malice if: [¶] - He intentionally committed an act; [¶] - The natural and probable consequences of the act were dangerous to human life; [¶] - At the time he acted, he knew his act was dangerous to human life; [¶] AND [¶] - He deliberately acted with conscious disregard for human life. [¶] Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time. [¶] An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act. A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes. In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence. [¶] If you decide that a defendant committed murder, it is murder of the second degree, unless the People have proved beyond a reasonable doubt that it is murder of the first degree as defined in Instruction 521."

King v US Bank

In 2012, U.S. Bank's code of ethics provided that "[s]uspected acts of dishonesty, misconduct, or conduct that is inconsistent with these important ethical standards w[ould] be investigated in a fair and thorough manner." The bank did not, however, have any rules, policies, procedures, practices, or criteria in place for investigators to follow in performing such investigations. The investigators, like McGovern, were given the discretion and judgment to determine what to do and how to do it, with appropriate support from their managers. It was up to the investigators, however, to determine if/when to consult with their managers on a case-by-case basis. McGovern was the human resources generalist overseeing the commercial banking division throughout the United States. The commercial banking division comprised of approximately 600 employees in 32 markets in 24 states. There was no evidence suggesting McGovern's ability to determine who to interview or how to perform an interview or investigation (e.g., whether to obtain written statements) was limited in any respect. Given the breadth of the discretion delegated to her in determining how to fairly and thoroughly investigate suspected acts of dishonesty or unethical misconduct (i.e., a corporate policy) and what constituted a fair and thorough investigation -- the results of which would determine (and in this case did determine) whether an employee would be disciplined or terminated -- the jury could have reasonably inferred she had the authority and discretion to interpret and apply the investigative policies for U.S. Bank's commercial banking division as she saw fit, such that her decisions ultimately determined corporate policy. (See Davis v. Kiewit Pacific Co. (2013) 220 Cal.App.4th 358, 373, 162 Cal.Rptr.3d 805 [trier of fact could reasonably infer an equal employment opportunity officer "had authority and discretion in making, interpreting, and applying [the corporation's equal employment opportunity] policies on...

People v Lovejoy

Finally, we reject McDavid's assertion that the trial court violated his constitutional rights by admitting evidence of his two prior misdemeanor convictions and the reasons for his involuntary separation from the Marines. In particular, McDavid argues that by initially ruling prior to trial that this evidence would be excluded and reversing its pretrial ruling and admitting that evidence after McDavid had taken the witness stand and testified in his defense, the court tricked, trapped, or lured him into testifying and deprived him of the ability to make a knowing and informed choice concerning whether to testify, thereby violating his constitutional rights against compulsory self-incrimination, to testify and present a defense, to effective assistance of counsel, and to due process and a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. However, as we concluded ante, the trial court properly admitted that evidence under applicable rules of evidence. "Application of the ordinary rules of evidence generally does not impermissibly infringe on a . . . defendant's constitutional rights." (People v. Kraft (2000) 23 Cal.4th 978, 1035 (Kraft); see also People v. Thomas (2012) 53 Cal.4th 771, 807 [quoting Kraft and rejecting appellant's claim that admission of evidence violated his constitutional right to fair trial]; People v. Lindberg (2008) 45 Cal.4th 1, 26 [quoting Kraft and rejecting appellant's claim that admission of evidence violated his constitutional rights to due process and fair trial]; People v. Hall (1986) 41 Cal.3d 826, 834 [application of ordinary rules of evidence does not infringe on defendant's constitutional right to present a defense].) Accordingly, we conclude that the trial court's proper application of California's rules of evidence in admitting the evidence at issue did not violate McDavid's constitutional rights. McDavid does not persuade us otherwise. People v. Hall (2018) 23 Cal.App.5th 576, cited by...

People v Ramirez

"When the sufficiency of the evidence to support a conviction is challenged on appeal, we review the entire record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value from which a trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] Our review must presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] Even where, as here, the evidence of guilt is largely circumstantial, our task is not to resolve credibility issues or evidentiary conflicts, nor is it to inquire whether the evidence might reasonably be reconciled with the defendant's innocence. [Citations.] It is the duty of the jury to acquit the defendant if it finds the circumstantial evidence is susceptible to two interpretations, one of which suggests guilt and the other innocence. [Citation.] But the relevant inquiry on appeal is whether, in light of all the evidence, 'any reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.' " (People v. Zaragoza (2016) 1 Cal.5th 21, 44 [affirming conviction based on entirely circumstantial evidence that defendant was shooter].)

Golden Door Properties v Superior Court

Latham & Watkins, Christopher W. Garrett, Daniel Brunton and Emily Haws, San Diego, for Petitioners Golden Door Properties LLC, California Native Plant Society, Hidden Valley Zen Center, Friends of Hidden Valley Zen Center, Buena Creek Action Group, Deer Springs Oaks Action Group, Twin Oaks Valley Road Action Group, Lisa Amantea, Michael Amantea, Darryl C. Bentley, Carol Bryson, Pamela J. Diniz, Stanley Diniz, Francis J. Eason, Rebecca Engel, Thomas Engel, Donald J. Folse, Elsie E. Gregory, Georgann Higgins, Claudia Hunsaker, Karen May, BJ McIntire, Cindi Peterson, Ana Cl Rosavall, James T. Rosvall, Katherine B. Rosvall, Leigh Rayner, Joanne Rizza, Darla Kennedy, and William R. Young. Chatten Brown Carstens & Minteer, Jan Chatten-Brown, Santa Monica, and Josh Chatten-Brown, Hermosa Beach, for Petitioner Sierra Club. Shute, Mihaly & Weinberger, William J. White and Edward Schexnayder, San Francisco, for Petitioner Endangered Habitats League. John Buse, Aruna Prabhala and Peter Broderick, San Francisco, for Petitioner Center for Biological Diversity. Law Offices of Roger B. Moore and Roger B. Moore for California Water Impact Network as Amicus Curiae on behalf of Petitioners. Law Offices of Thomas N. Lippe and Thomas N. Lippe, San Francisco, for Save Berkeley's Neighborhoods as Amicus Curiae on behalf of Petitioners. First Amendment Project, James R. Wheaton, Oakland, and Paul Clifford for Natural Resources Defense Council, The First Amendment Project, Electronic Frontier Foundation, Californians Aware, Planning and Conservation League Foundation, and Environmental Law Foundation as Amici Curiae on behalf of Petitioners. No appearance by Respondent. Thomas E. Montgomery, County Counsel, Joshua M. Heinlein, Senior Deputy County Counsel; Sheppard, Mullin, Richter & Hampton, John E. Ponder, Whitney A. Hodges and Karin Dougan Vogel, San Diego, for Real Party in Interest County of San Diego. Gatzke Dillon & Ballance, Mark J. Dillon, Kevin P. Sullivan, San Diego, and Kimber...

People v Jetson

"Code of Civil Procedure sections 206 and 237 do not contain an express timeliness requirement." (People v. Johnson (2013) 222 Cal.App.4th 486, 497-498.) "[T]hey have been construed as having an implied timeliness requirement, albeit only a limited one." (Johnson, at p. 498; see People v. Diaz, supra, 235 Cal.App.4th at p. 1243.) This limited requirement is based on the time a defendant has to develop a new trial motion or to use the information sought for another "lawful purpose." (See People v. Duran (1996) 50 Cal.App.4th 103, 122 ["we must consider the request [under Code Civ. Proc., § 237] in light of any time limitations associated with the purpose for which the information is sought"].) For example, in Duran the defendant filed a motion for new trial based on juror misconduct. The motion included a declaration from a defense investigator stating that a juror told him six weeks after the trial ended, but before sentencing, that she had dated the cousin of the victim in another murder case near the time of her jury service. (Duran, at pp. 108-109.) Three weeks later, on the date set for sentencing, the court held a hearing on the new trial motion, and counsel for the defendant orally requested the names and addresses of the other jurors. (Id. at pp. 109-110.) The trial court denied the request as untimely, and the court in Duran affirmed. (Id. at p. 110.) The court held: "[I]f the defendant or the defendant's counsel is precluded from using [juror] information for [an] expressed purpose due to time constraints, his or her request cannot be said to have been made for a lawful purpose." (Id. at p. 122.) In Duran the time had run on the defendant's opportunity to file or supplement a motion for new trial under section 1182, and any continuance would have required a showing of good cause, including due diligence, under section 1050. The defendant in Duran could not satisfy the diligence requirement for a continuance because he failed to petition the court for juror...

People v Rivera 1

As with Sergeant Sanchez, the direct examination of Detective Carrillo merely paid lip service to the Prunty requirements. The closest the expert came to describing a link between Goshen Familia and the alleged umbrella gang was his testimony regarding Operation Red Sol: "[I]t was not uncommon to find a Norteno from Goshen communicating with somebody from Porterville." Given the estimate of 1,500 to 2,000 Norteños in Tulare County and "well over 20" different subsets with membership as small as five or six people, it cannot be assumed Detective Carrillo was specifically referring to members of Goshen Familia. (See Prunty, supra, 62 Cal.4th at p. 82 ["we should neither speculate to fill evidentiary gaps [citation] nor defer to the jury's findings when there is no reasonable basis to do so"].) Moreover, since Operation Red Sol took place during an unspecified period in 2015, the testimony did not show an associational or organizational connection in 2014, i.e., at the time of the charged offenses. (Cf. People v. Duran (2002) 97 Cal.App.4th 1448, 1458 ["Crimes occurring after the charged offense cannot serve as predicate offenses to prove a pattern of criminal gang activity"].) In any event, the sparse testimony about Goshen Familia did not constitute substantial evidence of the required connection between it and the umbrella Norteño gang. (See Prunty, supra, at pp. 85, 92-93 [gang expert's "purely conclusory" testimony was "essentially of no use to the fact finder" and did not prove "that Varrio Gardenland and Varrio Centro were subsets of the umbrella group of Norteños"]; People v. Nicholes, supra, 246 Cal.App.4th at p. 848 [reversal for insufficient evidence "where the gang expert did no more than characterize the relevant individuals as Norteños, explain that Norteños are associated with the Nuestra Familia prison gang, and give general testimony not linked to the particular subsets involved in this case"]; People v. Williams (2008) 167 Cal.App.4th 983, 988 [gang ...

Aixtron v Veeco Instruments

The Uber court concluded that the superior court's order also had the finality required under section 1294. The court explained that " ‘[u]nder section 1294, appealable arbitration orders require finality .... "... [T]he Legislature's philosophy and intent in drafting section 1294 was that there should be no appellate consideration of intermediate rulings in arbitration disputes if the superior court was of the view that there should be initial or further proceedings in arbitration...." An intermediate ruling in an arbitration dispute that contemplates further proceedings in arbitration is not appealable. [Citations.] Requiring finality in appealable arbitration orders is consistent both with the language of section 1294 and the general prohibition of appeals from interlocutory nonfinal judgments in section 904.1, subdivision (a ). [Citations.]" ( Uber, supra , 27 Cal.App.5th at p. 960, 238 Cal.Rptr.3d 765, quoting Vivid Video, Inc. v. Playboy Entertainment Group, Inc. (2007) 147 Cal.App.4th 434, 442-443, 54 Cal.Rptr.3d 232.) The court concluded that the superior court's order was appealable under section 1294 since it contemplated no further proceedings between Uber and Google and completely resolved their dispute since Uber was not a party to the arbitration. ( Uber , at p. 960, 238 Cal.Rptr.3d 765.) The court noted that Uber involved "a nonparty to the underlying arbitration, and the single dispute involving the nonparty was conclusively determined by the superior court." ( Id. at p. 962, 238 Cal.Rptr.3d 765.) The court held that because the superior court's order was "a final determination of the discovery rights between Uber and Google in the special proceeding commenced for the sole purpose of resolving this discovery dispute, the order is appealable." ( Ibid. ) We agree with the analysis in Uber and conclude that because the superior court's August Order was "a final determination of the discovery rights [between Aixtron and Veeco] in the special proceeding...

People v Ware

Citing People v. Iniguez (2002) 96 Cal.App.4th 75, 116 Cal.Rptr.2d 634 ( Iniguez ), Simpson and Ware contend that their gang conspiracy convictions must be reversed because there is no such crime as conspiracy to commit attempted murder. In Iniguez , the appellate court concluded that the crime of conspiracy to commit attempted murder does not exist. ( Id. at p. 79, 116 Cal.Rptr.2d 634.) The court explained that "the crime of attempted murder requires a specific intent to actually commit the murder, while the agreement underlying [a] conspiracy [to commit attempted murder] contemplate[s] no more than an ineffectual act. No one can simultaneously intend to do and not do the same act, here the actual commission of a murder." ( Ibid. ) Put differently, "one cannot conspire to try to commit a crime" because conspiracy requires an agreement to commit a crime, not an agreement to attempt to commit a crime. ( Johnson, supra , 57 Cal.4th at p. 264, 159 Cal.Rptr.3d 70, 303 P.3d 379.) Simpson and Ware's reliance on Iniguez is misplaced because traditional conspiracy, at issue in Iniguez , requires evidence of an agreement. ( Iniguez, supra , 96 Cal.App.4th at p. 78, 116 Cal.Rptr.2d 634.) Gang conspiracy, however, does not require evidence of an agreement. Rather, as our high court explained, gang conspiracy "does not contemplate an agreement to commit an ineffectual act.... Unlike Iniguez , there is no logical impossibility or absurdity in recognizing the crime of conspiracy to actively participate in a gang." ( Johnson, supra , 57 Cal.4th at p. 264, 159 Cal.Rptr.3d 70, 303 P.3d 379.) Instead, for gang conspiracy, the "act of assistance or promotion replaces the required prior agreement to commit a crime that is ordinarily at the heart of a traditional conspiracy." ( Id. at p. 262, 159 Cal.Rptr.3d 70, 303 P.3d 379.) Accordingly, it is possible to be guilty of a gang conspiracy to commit an attempted offense.

People v Allen 1

Third, as to manner of killing evidence, Candace's and Andre's statements and testimony, as well as the autopsy and surveillance video evidence, demonstrate that, as Johnson followed appellant and Candace, appellant demanded his jacket from Candace at the corner of West Grand and Brush; retrieved the gun; walked backwards into the nearby park; and waited until Johnson approached before shooting him in the middle of the chest from approximately 15 feet away. Considering their wrestling match a few minutes earlier, which appellant won handily, there was no apparent reason for appellant to be concerned that Johnson had a gun or was a threat. Rather, the evidence shows that appellant waited for Johnson and then fired directly at a vulnerable part of Johnson's body from close range, which is sufficient to support a finding that the manner of killing reflected premeditation and deliberation. (See, e.g., People v. Halvorsen (2007) 42 Cal.4th 379, 422 [victims "were shot in the head or neck from within a few feet, a method of killing sufficiently ' "particular and exacting" ' to permit an inference that defendant was "acting according to a preconceived design"]; People v. Morris (1988) 46 Cal.3d 1, 23 ["The fact that defendant shot the victim twice from close range could reasonably support an inference by the jury that the manner of killing was ' "particular and exacting." ' "], disapproved on another ground by In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5; cf. People v. Silva (2001) 25 Cal.4th 345, 369 ["The manner of killing—multiple shotgun wounds inflicted on an unarmed and defenseless victim who posed no threat to defendant—is entirely consistent with premeditated and deliberate murder]; compare People v. Boatman (2013) 221 Cal.App.4th 1253, 1260, 1269-1270 [even though gun was fired at close range at victim's head, there was evidence that defendant and victim were joking around with gun when it went off and there was no evidence of planning or motive; hence, evid...

Le v Oxford Global Resources

Indeed, nothing in the pleading indicates that Nutanix knew the content of the written consultant agreement, which was signed only by Oxford and plaintiff. To the contrary, the allegations reflect that there was confusion by Nutanix about what, if any, contract was signed. For example, on February 9, 2016, Oxford asked Nutanix what time plaintiff should arrive for work on February 15, 2016. Nutanix responded, " 'You didn't tell [plaintiff] that his start date is on the 15th did you? We haven't finalized the contract yet.' " (Italics added.) Oxford replied that plaintiff had to give notice to his employer, and that " '[t]his should not be an issue since the contract has been agreed upon and signed by both parties.' " (Italics added.) Nutanix responded, " 'I'm not sure I understand what you mean - Why did he have to put in his notice? I told you that he shouldn't do a single thing until we have a fully signed contract in place.' " (Italics added.) Nutanix later asked Oxford, " 'I'm wondering why we gave [plaintiff] a start date before the contract was finalized?' " (Italics added.) Oxford replied, " 'If we hadn't acted on our side at the time you decided you wanted to move forward with [plaintiff], he would not have been available at all.' " (Italics added.) These communications reflect Nutanix's confusion about Oxford and plaintiff having signed a contract. These communications and the other communications alleged in the first amended complaint do not demonstrate any understanding on Nutanix's part about the substance or meaning of the written consultant agreement. At the same time, the Oxford employee who made these statements, and most of the other statements attributed to Oxford in the first amended complaint, was not the employee who signed the written consultant agreement on behalf of Oxford. There is no indication in the first amended complaint that this Oxford employee who made these statements was familiar with all the language in the written consultant agre...

People v Isaacs

Isaacs's closing argument regarding the gang enhancement focused on whether the beanie he wore during the robbery was a University of North Carolina (UNC) beanie that represented the No Cutts gang, as Medina testified. Medina testified that No Cutts gang members wore UNC attire and had "NC" tattoos because "NC" represented No Cutts. On appeal, Isaacs challenges the beanie as being insufficient evidence that the robbery was committed for the benefit of the gang. Davis views the beanie as being a basis for Medina's opinion that the robbery was committed in association with the gang, and argues at length that the beanie was not a UNC beanie, noting Medina's opinion that the beanie represented UNC was based on the fact it had a blue stripe, which Medina believed was UNC Tar Heel blue, and an insignia that he believed represented UNC even though there was no "NC" on the insignia. We agree with defendants' view that Medina's associating the beanie with UNC was speculation and not substantial evidence that the beanie represented UNC and, accordingly, the No Cutts gang. However, we need not address this issue further because Medina's view that the beanie represented UNC did not go to his opinion that the robbery was committed in association with the gang or was otherwise gang related; it went solely to his opinion that Isaacs was a member of the gang. Although the prosecutor included in his hypothetical that one of the gang members "was wearing gang affiliated clothing," which could only refer to the purported UNC beanie, Medina did not reference the beanie in explaining his opinions that the robbery benefited and was committed in association with the gang. To the contrary, as noted, when the prosecutor asked Medina: "The fact that in the hypothetical, there was gang affiliated clothing, in addition to what you just mentioned with three members total, does the fact that there's gang affiliated clothing have any influence or any impact on your opinion that it was done in as...

People v Klotz

Although defendant argues that evidence of motive alone is insufficient to establish that he was "responsible" for the offense, there is evidence beyond motive in the record here—namely, as detailed above, defendant's conduct before the offense and the perpetrator's conduct during the offense. Moreover, the cases cited by defendant in support of his argument are inapposite, as they involve the evidentiary requirements to present the defense of third party culpability. (See People v. Blankenship (1985) 167 Cal.App.3d 840, 848 [observing that third party motive evidence offered by a defendant to establish that a third party committed the offense "is not admissible unless coupled with substantial evidence tending to directly connect that person with the actual commission of the offense"]; People v. Green (1980) 27 Cal.3d 1, 22 ["It is settled . . . that evidence that a third person had a motive to commit the crime with which the defendant is charged is inadmissible if it simply affords a possible ground of suspicion against such person; rather, it must be coupled with substantial evidence tending to directly connect that person with the actual commission of the offense"], abrogated on a different ground by People v. Martinez (1999) 20 Cal.4th 225, 239-241; People v. Yeoman (2003) 31 Cal.4th 93, 140-141 [" 'evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant's guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime' "].)

People v Wesley

Wesley's reliance on Douglas v. Alabama (1965) 380 U.S. 415 (Douglas) and People v. Murillo (2014) 231 Cal.App.4th 448 (Murillo) is misplaced. Both cases involved questions to percipient witnesses in criminal trials, not direct questions posed to the defendant himself concerning his own conduct. In Douglas, the defendant and another man, Loyd, were charged with assault with intent to commit murder. (Douglas, at p. 416.) Loyd confessed to the crime and was convicted first at a separate trial. (Ibid.) Because Loyd was appealing his conviction, under the advice of his counsel, Loyd, citing his Fifth Amendment rights, refused to answer any questions when called as a witness at the defendant's trial. (Ibid.) The questions included the prosecutor reading Loyd's signed confession implicating the defendant. (Id. at pp. 416-417.) The U.S. Supreme Court held that the tactic constituted a violation of the defendant's right to confront the witnesses against him under the Sixth Amendment. (Id. at p. 419.) Similarly, in Murillo, a percipient witness, who had identified the defendant during the police investigation as the shooter in a driveby that killed two people, refused to answer any questions during the defendant's trial. (Murillo, supra, 231 Cal.App.4th at pp. 451452.) The prosecutor was permitted, over the defense's objections, to ask the witness over 100 leading questions about his prior identification of the defendant. (Ibid.) Citing Douglas, the Court of Appeal held that the questioning was a violation of the defendant's Sixth Amendment right to confront the witnesses against him. (Id. at pp. 456458.) These cases are not dispositive of the issues here, which do not implicate Wesley's Sixth Amendment rights and where Wesley himself had the ability to (and did) refute each question posed by the prosecutor concerning the prior acts.

Orozco v Conrad

An express assumption of a real property lease requires specific affirmation by the assignee to bind itself to the lease obligations either orally or in writing. (BRE DDR BR Whittwood CA LLC v. Farmers & Merchants Bank of Long Beach (2017) 14 Cal.App.5th 992, 1001; Kelly v. Tri-Cities Broadcasting, Inc. (1983) 147 Cal.App.3d 666, 673.) "In Bank of America etc. Assn. v. Moore (1937) 18 Cal.App.2d 522, (Moore), the court found the defendant assumed the obligations of a lease by stating so in a written assignment agreement. The document was signed by the defendant, as assignee, and the assignor. The document concluded, ' "It being understood that said Assignee . . . is to accept, assume and agree to perform all of the terms, conditions and limitations contained in said lease." [¶] "The undersigned, [defendant], hereby accepts, assumes and agrees to perform all of the terms, conditions and limitations contained in the aforementioned lease to be kept and performed by said lessee." ' [Citation.] This language established 'privity of contract.' [Citation.] The court stated, 'we have not a naked assignment creating privity of estate only, ceasing with cessation of possession, but one clothed with the express assumption by the assignee of the obligations of the lessee . . . . [T]he agreement of the defendant, in harmony with the requirement of the lease, may be interpreted as a contract directly with the lessor.' " (BRE DDR BR, at p. 1001.)

Talley v County of Fresno

The Second Circuit adopted the Graves remuneration test in O'Connor v. Davis (2d Cir. 1997) 126 F.3d 112 ( O'Connor ), which involved an unpaid student internship. ( Id. at pp. 113, 115–116.) O'Connor's college degree program required completion of field work, and she was placed by her school in an unpaid internship at a hospital. ( Id. at p. 113.) During the internship, a hospital employee made comments and jokes to and about O'Connor of a sexual nature. ( Id. at pp. 113–114.) O'Connor complained, left the hospital, and completed her internship at another facility. ( Id. at p. 114.) She filed suit against the hospital, among other entities, for sexual harassment in violation of Title VII. ( Ibid. ) In seeking summary judgment, the hospital argued the Title VII claim had to be dismissed because O'Connor could not, as a matter of law, be an employee of the hospital within the meaning of Title VII, and the district court agreed. ( Ibid. ) On appeal, the Second Circuit found the definition of " ‘employee’ " under Title VII to be circular and unhelpful, and acknowledged the United States Supreme Court's statement in Reid that when Congress uses the term " ‘employee’ " without defining it, courts should presume that Congress had in mind the conventional master-servant relationship as understood by the common law agency doctrine. ( O'Connor, supra , 126 F.3d at p. 115.) The O'Connor court then observed that in most cases where an attempt has been made to discern the contours of the conventional master-servant relationship, it has been to distinguish between an employee and an independent contractor. ( Ibid. ) The court found this analysis flawed for application in the student intern context "because it ignores the antecedent question of whether O'Connor was hired by [the hospital] for any purpose. As the Supreme Court suggests, the common feature shared by both the employee and the independent contractor is that they are ‘hired parties,’ [citation], and thus, a prerequis...

Pico Neighborhood Association v City of Santa Monica

Lane Dilg, City Attorney, George Cardona, Special Counsel; Gibson, Dunn & Crutcher, Theodore J. Boutrous Jr., Marcellus A. McRae, Kahn A. Scolnick, Tiaunia N. Henry and Daniel R. Adler, Los Angeles, for Defendant and Appellant. Cole Huber and Derek P. Cole, Roseville, for League of California Cities and California Special Districts Association as Amici Curiae on behalf of Defendant and Appellant. Strumwasser & Woocher, Bryce A. Gee, Los Angeles, and Caroline C. Chiappetti for The Santa Monica Transparency Project as Amicus Curiae on behalf of Defendant and Appellant. Shenkman & Hughes, Kevin I. Shenkman, Mary R. Hughes, Andrea A. Alarcon; Law Office of Robert Rubin, Robert Rubin, San Francisco; Goldstein, Borgen, Dardarian & Ho, Morris J. Baller, Laura L. Ho, Anne P. Bellows, Ginger L. Grimes, Oakland; Parris Law Firm, R. Rex Parris, Ellery S. Gordon, Lancaster; Law Offices of Milton C. Grimes and Milton Grimes ; Schonbrun Seplow Harris & Hoffman, Paul Hoffman and John Washington, Los Angeles, for Plaintiffs and Respondents. Panish Shea & Boyle and Brian Panish, Los Angeles, for Richard Polanco, Sergio Farias, Juan Carrillo, Richard Loa and Austin Bishop as Amici Curiae on behalf of Plaintiffs and Respondents. Hogan Lovells US, Ira M. Feinberg, Zach Martinez, Patrick C. Hynds and Joseph M. Charlet for FairVote as Amicus Curiae on behalf of Plaintiffs and Respondents.

People v Torrez

The gist of Torrez's argument is that because of the extreme hatred and rivalry between the Westside gang and the Diablos gang, the only logical inference is that Torrez acted rashly and impulsively when shooting at the Westside gang members rather than with premeditation and deliberation. A similar argument was considered and persuasively rejected by the court in People v. Rand (1995) 37 Cal.App.4th 999. In Rand, the defendant, a member of the Crips gang, shot and killed a man by the roadside whom he identified as a member of the rival Blood gang because of the color he wore. (Id. at p. 1001.) In arguing that insufficient evidence supported a first degree murder conviction, defendant argued that "because Crips and Bloods hate each other so much, '[a] Blood [or anyone else, for that matter] dressed in red is a provocation to a Crip, and is intended to be a provocation to a Crip.' Thus, 'for a Crip to shoot a Blood . . . is a proverbial 'kneejerk' reaction, just the opposite of a shooting done with premeditation and deliberation.' " (Ibid.) Rand rejected the argument, characterizing it as "nonsensical." (Ibid.) "A studied hatred and enmity, including a pre-planned, purposeful resolve to shoot anyone in a certain neighborhood wearing a certain color, evidences the most cold-blooded, most calculated, most culpable, kind of premeditation and deliberation." (Ibid.) In another gang case, People v. Martinez (2003) 113 Cal.App.4th 400, 413, there was sufficient evidence of premeditation and deliberation in an attempted murder case when the defendant pulled out a gun and started shooting at rival gang members who had just pulled into a gas station. As Martinez explained, the jury "could reasonably infer . . . that the motive for the shooting involved gang rivalry" and the defendant acted deliberately in aiming the gun and then firing it as the rival gang members fled. (Ibid.) Indeed, as our Supreme Court has acknowledged, "[p]remeditation can be established in the context o...

Johnson v Monsanto Co 1

The trial court issued a tentative ruling indicating its intent to grant Monsanto's motions on the issue of punitive damages. The tentative ruling explained why Johnson had not presented clear and convincing evidence of malice or oppression to support the award ( Civ. Code, § 3294, subd. (a) ). The court emphasized that worldwide regulators continued to conclude that glyphosate-based herbicides were safe and not carcinogenic. As for Johnson's claims that Monsanto refused to conduct studies recommended by the genotoxicity expert it had hired in the late 1990s, the court noted that Monsanto ultimately conducted all but one of the tests and publicly released the results. And as for Johnson's claim that Monsanto ghost wrote articles, the court stated that Monsanto employees were listed as contributors to the articles, and there was no evidence that the articles contained material scientific misstatements. Finally, the court stated that there was no evidence that Monsanto scientists who were involved in evaluating glyphosate products were managing agents, which meant no malice or oppression could be imputed to a Monsanto officer, director, or managing agent of the corporation for purposes of Civil Code section 3294. Ultimately, however, the court decided not to adopt its tentative ruling and denied Monsanto's post-trial motions on the issue of punitive damages. Its final order concluded that although no specific managing agent had authorized or ratified malicious conduct, Johnson had proved by clear and convincing evidence that the company as a whole acted maliciously. The court concluded that the jury could have found that Monsanto's decision to continue marketing Roundup products notwithstanding a possible link with non-Hodgkin's lymphoma constituted corporate malice for purposes of punitive damages. The court compared this case to ones where a defendant had failed to adequately test a product and where there was a reasonable disagreement among experts, and stressed th...

People v Lacey

In Elam the court received a note from the foreperson that read, " 'There is a perception problem with Juror No. 3. Possibly a language understanding. Help.' " (Elam, supra, 91 Cal.App.4th at p. 313.) The court summoned Juror No. 3, who "acknowledged having 'some' difficulty with the English language, 'a little bit.' " (Ibid.) However, the juror had grown up speaking English, spoke English continuously while serving in the United States Navy, and earned an associate of arts degree in English from Glendale Community College. (Ibid.) The other jurors thought there was a language problem because some of them had trouble understanding Juror No. 3, but mainly because he frequently changed his mind, " 'block[ed] out' " circumstantial evidence, and did not seem to " 'grasp the law.' " (Id. at pp. 314-316.) When the court asked Juror No. 3 his opinion of why the other jurors were concerned about an inability to communicate, he answered, " 'Maybe we see the case differently.' " (Id. at p. 323.) In his opinion, Juror No. 3 did not have a significant language problem. (Ibid.) He understood all of the testimony. (Id. at p. 321.) He understood the instructions and was able to participate in discussions. (Id. at pp. 323-324.) After speaking to all of the jurors and noting Juror No. 3 had a "pronounced accent" which made him difficult to understand, the court discharged Juror No. 3, stating, " 'I fear that you may have overestimated your own abilities to understand all of these proceedings.' " (Id. at p. 316.)

People v Nett

However, Nett's argument fails because the jury was also instructed that it could base a burglary conviction on a finding that, upon entering R.A.'s apartment, Nett intended to commit the crime of preventing an executive officer from performing a duty. Case law holds that a defendant may be punished for both the burglary and the charged crimes that he was alleged to have intended to commit upon entry into the building, if substantial evidence supports a finding that the defendant also intended to commit another felony upon entry into the building that was not charged against the defendant. (People v. Nelson (1989) 211 Cal.App.3d 634, 638-639 [because the evidence supported a finding by the trial court that the defendants entered a house with "discrete objectives" of theft and assault, under section 654 punishment could be imposed for both the burglary and the assault convictions, where the defendant was not charged with any theft crime]; People v. Booth (1988) 201 Cal.App.3d 1499, 1505 (Booth) [where no theft crime was charged, separate punishment for burglary and rape was permissible under section 654 because the evidence supported a finding that the defendant also entered the house with the intent to steal].) In such a case, the defendant forms a separate intent and objective with respect to the burglary because the burglary is motivated by an additional separate felony apart from the felonies for which the defendant is convicted and punished. (Booth, at p. 1505 ["the facts of the present case support the determination that defendant entered the victims' homes with the intention of achieving two objectives—to rape and to steal. Such dual intent precludes a finding as to each victim that his entry into their homes and his sexual assaults constituted an indivisible course of conduct to which section 654 is applicable."], footnote omitted.)

People v Vasquez

"Evidence of the sexual conduct of a complaining witness is admissible in a prosecution for a sex-related offense only under very strict conditions. A defendant may not introduce evidence of specific instances of the complaining witness's sexual conduct, for example, in order to prove consent by the complaining witness. [Citation.] Such evidence may be admissible, though, when offered to attack the credibility of the complaining witness and when presented in accordance with the following procedures under section 782: (1) the defendant submits a written motion 'stating that the defense has an offer of proof of the relevancy of evidence of the sexual conduct of the complaining witness proposed to be presented and its relevancy in attacking the credibility of the complaining witness' [citation]; (2) the motion is accompanied by an affidavit, filed under seal, that contains the offer of proof [citation]; (3) '[i]f the court finds that the offer of proof is sufficient, the court shall order a hearing out of the presence of the jury, if any, and at the hearing allow the questioning of the complaining witness regarding the offer of proof made by the defendant' [citation]; and (4) if the court, following the hearing, finds that the evidence is relevant under Evidence Code section 780 and is not inadmissible under section 352, then it may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. [Citation.]

Vazquez v Warren Distrib

The court also denied class certification on the meal and rest break claims on the ground that plaintiffs "failed to demonstrate that class treatment of these claims is appropriate." The court reasoned that the deposition testimony from numerous class members on these issues was inconsistent with plaintiffs' two admissible declarations, those of named plaintiffs Vazquez and Herrera. Vazquez and Herrera stated in their declarations that they were required to take their meal breaks at Warren's warehouse, they did not receive meal breaks in timely fashion if they could not return to the warehouse within five hours, they recorded meal breaks on their timesheets even if they did not take them, and they were never permitted to take rest breaks. The court found that the Vazquez and Herrera declarations were inconsistent with other putative class members' depositions. The court specifically pointed to the deposition testimony of named plaintiffs Hugo Gallegos, Miguel Chulde, Humberto Rodriguez, Jose Armando Munoz Romero, Marcelino Solorzano Ascencio, and Regalado Villanueva de Guzman, all of whom testified that they took 30-minute meal breaks every day. Gallegos, Rodriguez, and Villanueva de Guzman also testified that they knew they were entitled to these breaks within five hours of starting their shifts. The court also pointed to similar testimony in the depositions of six putative class members. The court concluded from these depositions that plaintiffs failed to meet their burden of demonstrating that common questions of law or fact predominated: "the evidence before the court suggests that Va[z]quez and Herrera had atypical experiences if they were unable to take meal breaks." It did not further address rest breaks.

People v Caudillo

Ricky argues that the record is devoid of evidence that he aided and abetted the shooter in this case; we disagree. Defendants had a gun with them from the time they got together on October 1, 2012. It was in the Buick when Ricky and Fredy went to Gonzalez's home in Gridley. When the Norteños drove by on Scarlet Oak Drive in Gridley, one of the defendants went to the Buick and reached in, as if reaching for a gun. One of the young women with defendants recognized Morales in the front seat of the Hummer; therefore, it is reasonable to infer defendants were also aware of his presence in the Hummer and his status as a hood hopper. Defendants told the young women with them to run, leading to a reasonable inference that defendants understood there would be violence. Acting together, defendants got in the Buick and gave chase, pursuing a Hummer containing Morales, a hood hopper on whom the Sureños had a green light. After the Buick passed the Hummer and Morales threw rocks at the Buick, the Buick turned around and gave chase. One of the defendants reached out of a window, shooting and killing Morales. From all these facts, the jury could reasonably infer Ricky aided and abetted the second degree murder of Morales and the shooting at an occupied vehicle.

People v Preciado

Greer did not expressly resolve a claim of multiple punishment under section 654 and in People v. Pearson, the California Supreme Court noted that in addressing the defendant's claim that it was improper to convict him both of lewd and lascivious conduct and statutory rape, the Greer court "used the terms 'conviction' and 'punishment' interchangeably ...." (People v. Pearson (1986) 42 Cal.3d 351, 358, disapproved on another ground in People v. Vidana (2016) 1 Cal.5th 632, 651.) The court concluded that the discussion in Greer "was essentially dictum because the court had already determined that the judgment would be reversed on [double jeopardy] before it reached this issue." (Pearson, supra, at p. 358.) Defendant also cites to People v. Bevan for the proposition that "'"'technical fragmentation'" of a course of lewd and lascivious conduct could not be resorted to in order to create multiple sexual offenses' and that '[u]nder such circumstances not only the multiple punishment, but also the multiple conviction must be set aside.'" (People v. Bevan (1989) 208 Cal.App.3d 393, 401, quoting Hankla v. Municipal Court (1972) 26 Cal.App.3d 342, 358, disapproved on another ground by Owens v. Superior Court (1980) 28 Cal.3d 238, 249, fn. 10.) However, in Scott, supra, 9 Cal.4th at pages 347348, the California Supreme Court disapproved People v. Bevan and People v. Bothuel (1988) 205 Cal.App.3d 581 on the ground that they did not "properly analyze the circumstances under which a defendant may be separately convicted under section 288 for separate lewd acts committed in a single encounter." Noting that both cases were decided prior to Harrison (Scott, supra, at p. 347), the court observed that "courts no longer assume that fondling offenses are 'incidental' to other sex crimes within the meaning of section 654, or that they are exempt from separate punishment. The newer cases tend to focus on evidence showing that the defendant independently sought sexual gratification each t...

People v Henderson

Appellant appeals from the judgment of conviction, contending 1) the trial court erred in failing to instruct the jury sua sponte on the lesser offense of voluntary manslaughter on a heat of passion theory; 2) counsel was ineffective in failing to request an instruction on provocation that reduces murder to manslaughter; 3) the trial court abused its discretion under Evidence Code sections 1103 and 352 when it permitted the People to impeach appellant and show a character trait for violence with evidence of his 1988 conviction of two counts of attempted murder; 4) counsel was ineffective in addressing this evidence after the trial court made its ruling; and 5) counsel was ineffective in addressing evidence of a prosecution witness's prior convictions and police body camera footage, both of which the prosecution belatedly disclosed during trial. Appellant makes seven additional claims of ineffective assistance of counsel, largely to support his separate claim that cumulative error was prejudicial. Finally, appellant contends the trial court incorrectly calculated his total sentence. Respondent agrees the trial court erred in sentencing appellant to 115 years to life instead of 100 years to life plus 15 years. We agree the sentence is incorrect and remand for the limited purpose of correcting the abstract of judgment. We affirm the judgment of conviction in all other respects.

People v Bedford

We find People v. Nguyen (2015) 61 Cal.4th 1015 instructive. There, "[t]he car in which defendant was riding passed [the victim]'s car, waited in a parking lot, and then pulled out to pursue the other car. Defendant stared back at the occupants of [the victim]'s car as one car passed the other. A few blocks later, [the shooter] opened fire from the front seat of the car in which defendant was riding. Several days after the shooting, defendant visited [an individual] who had been riding in [the victim]'s car, and asked 'What's up with the cops?' Considering this evidence in the context of the ongoing gang war between the [appellant's gang] and [the victim's gang], as well as the Asian gang practices described by [the gang expert], the jury could have inferred that defendant knew of [the shooter]'s intent to kill, shared that intent, and aided [the shooter] by spotting potential targets." (Id. at 1055.) The facts in the instant case more strongly support a finding of knowledge than those found sufficient in Nguyen: not only was appellant riding with Campbell, he was the driver who stopped the truck, enabling Campbell to commit the shooting, and he sped off once Campbell returned to the vehicle. It was also appellant who, prior to the shooting, exited the truck at a location where he had a clear view of Horne, before circling the block and coming to a halt at the spot where the shooting occurred. Appellant's attempts to distinguish Nguyen by noting that the defendant there was in the "immediate presence" of the shooter when he shot the victim is unpersuasive. Nothing in Nguyen suggests the court based its decision on the fact that the shooter opened fire from the front seat of the car, as opposed to exiting the car first.

People v Saldana

"Whether the evidence of other crimes would have been admissible in separate trials on the others is governed by Evidence Code section 1101, subdivision (b), which permits admission of other uncharged acts when offered as evidence of a defendant's motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident in the charged crimes." (People v. Lucas (2014) 60 Cal.4th 153, 214-215, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53-54, fn. 19.) "In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ' "probably harbor[ed] the same intent in each instance." [Citations.]' [Citation.]" (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) "To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (Id. at p. 403.) "The greatest degree of similarity is required for evidence of uncharged misconduct to be relevant to prove identity. For identity to be established, the uncharged misconduct and the charged offense must share common features that are sufficiently distinctive so as to support the inference that the same person committed both acts. [Citation.] 'The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.' [Citation.]" (Ibid.) Similarity of offenses is not required to establish the motive theory of relevance. (People v. Thompson (2016) 1 Cal.5th 1043, 1115.)

Ruiz v Hunt and Henriques

We agree that, without more, an attorney does not violate the FDCPA merely by representing a client who sues for an overstated debt amount. But we need not decide the outer limits of attorney FDCPA liability because Ruiz did not rely on Hunt's filing of the complaint to support her FDCPA claim. Instead, she grounded her claim principally on Hunt's actions, as a debt collector, in sending the October 19 and January 8 letters that sought to collect an overstated amount of debt, particularly after she allegedly repeatedly communicated her challenges to this amount to the creditor, to the second debt collector, and to Hunt (in her November 9 letter). In ruling on an anti-SLAPP motion, a court must focus on whether the particular claim is supported by sufficient facts, and need not explore every possible theory underlying that claim. (See Cuevas-Martinez v. Sun Salt Sand, Inc. (2019) 35 Cal.App.5th 1109, 1119.) Additionally, Hunt has not cited helpful federal or state authority on the issue, except for the dicta in Heintz, decided more than two decades ago. Under these circumstances, we conclude Ruiz met her burden on the FDCPA claim even assuming the complaint itself could not serve as a basis for a FDCPA claim. (See Young v. Three for One Oil Royalties (1934) 1 Cal.2d 639, 647-648 [an appellate court generally will not address an issue unnecessary to the resolution of the appeal].)

Thomas v Sea Breeze Venture

The new allegations in the SAC—that respondents refused to provide meeting notices in Spanish, knowingly scheduled meetings that conflicted with appellants' schedules, and sought to force appellants to vacate the property through "verbal threats and harassment" are not necessarily inconsistent with the prior FAC allegations that appellants did not attend their certification meetings because their resident manager, Janet Pintor, did not "materially respond" to their questions as to why they were being asked to certify their income, since they had never had to do so before. Indeed, as the trial court well-explained in its tentative ruling wherein it deemed the sham doctrine inapplicable, it is at least possible that the tenants had multiple reasons for not attending the meetings, and also possible that management committed multiple wrongs toward the tenants. The cases upholding application of the sham doctrine based on contradictory allegations are more tightly drawn than this. (See, e.g., Smyth v. Berman (2019) 31 Cal.App.5th 183, 196 (Smyth) [plaintiff's allegations in amended complaints—that 2011 lease (and, specifically, its right of first refusal) was still in effect in 2016 by virtue of an oral extension of lease in December 2015—deemed factually inconsistent with plaintiff's prior allegation that his lease expired in 2015; because plaintiff "alternatively alleged no extension and then an extension," he contradicted himself]; Womack v. Lovell (2015) 237 Cal.App.4th 772, 787 [denial in answer to cross-complaint that general contractor was licensed ignored as a sham in light of plaintiff's complaint seeking recovery under general contractor's license bond]; Amid, supra, 212 Cal.App.3d at p. 1390 [allegation of an oral nondisclosure term in a fifth complaint inconsistent with the allegations in four earlier complaints that there was no express nondisclosure term]); Owens, supra, 198 Cal.App.3d at p. 384 [plaintiff alleged in two successive complaints that he was i...

People v Ajtun

Evidence is admissible under Evidence Code section 352 if its probative value is not "'substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'" (People v. Nguyen (2010) 184 Cal.App.4th 1096, 1116.) In determining the admissibility of uncharged crimes evidence under Evidence Code sections 1108 and 352, a trial court must consider "(1) whether the propensity evidence has probative value, e.g., whether the uncharged conduct is similar enough to the charged behavior to tend to show the defendant did in fact commit the charged offense; (2) whether the propensity evidence is stronger and more inflammatory than evidence of the defendant's charged acts; (3) whether the uncharged conduct is remote or stale; (4) whether the propensity evidence is likely to confuse or distract the jurors from their main inquiry, e.g., whether the jury might be tempted to punish the defendant for his uncharged, unpunished conduct; and (5) whether admission of the propensity evidence will require an undue consumption of time." (Nguyen, at p. 1117; accord, People v. Falsetta (1999) 21 Cal.4th 903, 915, 917.) "'Even where a defendant is charged with multiple sex offenses, they may be dissimilar enough, or so remote or unconnected to each other, that the trial court could apply the criteria of [Evidence Code] section 352 and determine that it is not proper for the jury to consider one or more of the charged offenses as evidence that the defendant likely committed any of the other charged offenses.'" (Villatoro, supra, 54 Cal.4th at p. 1163.)

People v Clevenger

The record indicates that the trial court carefully considered the discovery violation, taking the time to understand both the nature of the violation as well as its potential impact on the defense. From the prosecutor's and defense counsel's arguments, the court could have reasonably found that the victim's single conviction, and the arrests, were remote in time and would likely not be admissible. (Compare with People v. Hughes (2020) 50 Cal.App.5th 257, 283 (Hughes) [trial court abused discretion in denying mistrial where "the prosecution surprised defense counsel with new technical evidence on the most critical factual question relating to [defendant's] guilt on three murder charges," during the trial].) The decision in Hughes only underscores why the late production of evidence in this case did not mandate a mistrial, since, unlike in Hughes, the belatedly disclosed discovery neither pertained to "[t]he critical issue at trial," (Hughes, at p. 260) nor, as in Hughes, related to admissible evidence. (See id. at p. 278 [prosecutor failed to timely disclose expert witness's notes that "contained the calculations that served as the basis for [expert's] new testimony and diagrams on the critical causation issue at trial"].) The court also heard defense counsel's argument that the discovery violation had the potential to prejudice the defense because the late disclosure had prevented the defense from investigating the victim's prior conduct, and the defense's trial strategy may have been different, depending on the outcome of such investigation.

Kevin Le v Pham

In his appellate briefs, Pham appears to argue that the evidence at trial showed that he terminated the contract based upon respondents' nonperformance, and that the court disregarded this evidence. First, since Pham did not claim below that the contract had been terminated as a basis for denying relief to respondents, the trial court was not required to address the question. Second, Pham's appellate argument that the contract was terminated due to respondents' material breach—as was the case with his argument regarding the rescission claim—is devoid of evidentiary support. Neither his opening brief nor his reply brief contains any citations to the reporter's transcript of the trial referring to evidence relevant to his contract termination argument. This omission is in violation of rule 8.204(a)(1)(C); the argument is forfeited on this basis as well. (In re S.C., supra, 138 Cal.App.4th at pp. 406-407.) Third, to the extent that this court views Pham's appellate briefs as challenging the sufficiency of the evidence supporting any implied findings concerning a claimed termination of the contract, Pham did not meet his burden in challenging the sufficiency of the evidence supporting the trial court's decision. (See Picerne Construction, supra, 244 Cal.App.4th at p. 1208.) Pham did not present a fair description of the underlying evidence as required. (Foreman & Clark, supra, 3 Cal.3d at p. 881.) He therefore waived the appellate argument. (Schmidlin, supra, 157 Cal.App.4th at p. 738.) Moreover, because we presume the judgment to be correct, and because in this case, there was no statement of decision, we "must infer the trial court . . . made every factual finding necessary to support its decision." (Fladeboe, supra, 150 Cal.App.4th at p. 61.) Implicit in the court's judgment that Kristopher was the sole owner of the property and that Pham held no interest in it were, inter alia, findings that (1) respondents had not materially breached the contract, (2) Pham had not...

Lopez v Superior Court

Davidson's petition assumes he knew of the plan to rob Dennis and his girlfriend, knew Vaccaro was armed, identified Dennis to Vaccaro, and drove Randolph and Vaccaro from the scene, but he argues he could not have acted with reckless indifference to human life because he was parked around the corner and could not have seen the shooting, done anything to stop it, or rendered aid. To support this latter point, he contends that if he did have a clear line of sight of the shooting, he would have seen the bags returned to the car, and he would have known that the sale had not occurred. The fact Davidson apparently did not tell Vaccaro and Randolph that the bags had been returned to the car does not preclude him from having a clear view of events. Indeed, T.B. had a clear view of the shooting and apparently did not see this either. Further, we disagree that the record is clear about the location of Davidson during the shooting. The magistrate stated that it inferred but could not "conclude based on the evidence, that probably Mr. Davidson was left behind in the [black car] . . . as the wheelman after the shooting took place." Regardless, again, even where substantial evidence is required, "physical presence is not invariably a prerequisite to demonstrating reckless indifference to human life." (Clark, supra, 63 Cal.4th at p. 619.) While a defendant who fails to act as a restraining influence or render aid is arguably more at fault, a defendant who is apparently not close enough to do either is not automatically absolved of guilt. (See id. at p. 620 ["Defendant's absence from the scene of the killing and the ambiguous circumstances surrounding his hasty departure make it difficult to infer his frame of mind concerning [the victim]'s death"].) The People argue the testimony presented at the preliminary hearing would lead a person of ordinary prudence to conscientiously entertain a strong suspicion that Davidson was a major participant in the robbery and acted with reckles...

People v Foster

In Rodriguez, a defendant convicted of crimes relating to an assault and battery in state prison argued on appeal that the prosecutor improperly vouched for the credibility of two testifying witnesses by asserting during closing argument that the witnesses, who were correctional officers, would not lie. (Rodriguez, supra, 9 Cal.5th at pp. 477-479.) The high court held that the prosecutor's argument generally asking, " 'what motive would [Officer Stephens, the victim,] have to lie?' [citation], was proper because it did not 'suggest the prosecutor had personal knowledge of facts outside the record showing [Stephens] was telling the truth' or 'invite[] the jury to abdicate its responsibility to independently evaluate for itself whether [Stephens] should be believed.' [Citation.]" (Id. at pp. 480-481.) Furthermore, the prosecutor's argument regarding the length of Officer Stephens's career and that of the other testifying officer was based on the record and was proper as well. (Ibid.) However, the prosecutor's arguments that the officers would not lie because each would not put his " 'entire career on the line' " or " 'at risk' " did constitute impermissible vouching. (Id. at pp. 481-482.) The prosecutor's "career-related arguments 'convey[ed] the impression that evidence not presented to the jury, but known to the prosecutor, support[ed] the charges against the defendant[,]" (id. at p. 481), which "jeopardize[d] the defendant's right to be tried solely on the basis of the evidence presented to the jury.' [Citation.]" (Ibid.)

People v Garcia 1

Finally, to the extent that Garcia is arguing that because Gonzalez's statement was insufficiently trustworthy, the court's admission of the statement constituted a violation of Garcia's confrontation rights, we reject such a contention, even apart from our rejection of his premise that the statement is insufficiently trustworthy to be admissible as a statement against interest. Specifically, Garcia argues that "[a]bsent clarity as to whom [Gonzalez] was referring . . . when he used the term, 'we,' the trial court erred in finding the statement trustworthy, in violation of appellant's right to confrontation under the Sixth Amendment." Garcia concedes that Gonzalez's statement to Grajiola during the telephone call was not "testimonial" within the meaning of Crawford v. Washington (2004) 541 U.S. 36. In Crawford, the United States Supreme Court described testimonial hearsay as " 'ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or . . . ' . . . 'statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.' " (Id. at pp. 51-52, italics omitted.) Obviously, a statement made during a telephone call between gang members cannot be considered to have been made under circumstances that would lead one reasonably to believe that the statement would be available for use at a trial. Given the fact that the statement that Gonzalez made on the telephone call can in no reasonable sense be determined to be "testimonial," it is clear that the trial court's admission of the statement does not raise confrontation clause issues. Nontestimonial hearsay is subject only to "traditional limitations upon hearsay evidence" and does not implicate the Sixth Amendment right of confrontation. (Davis v. Washington (2006) 547 U.S. 813, 821; see People v. Coop...

Hein v Hein In re Marriage of Hein

Other cases referring to the presumption of correctness of recent income tax returns did not involve a self-employed parent who had organized his or her business or businesses into multiple wholly owned entities. (See e.g., M.S. v. O.S. (2009) 176 Cal.App.4th 548, 97 Cal.Rptr.3d 812 [unemployed father reported income received from Indian tribe on federal income tax returns]; In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 57 Cal.Rptr.3d 274 [father was a self-employed mathematician who was an independent contractor in the computer software industry; how his business was organized was not described]; In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 33 Cal.Rptr.3d 246 [father owned and operated a self-service gas station and reported the profit or loss from that business on Schedule C of his federal tax returns; presumption of correctness was rebutted by statement of income on loan application].) In In re Marriage of Alter (2009) 171 Cal.App.4th 718, 89 Cal.Rptr.3d 849, the obligor parent was self-employed, owning and operating a retail drapery business. ( Id. at p. 724, 89 Cal.Rptr.3d 849.) The court did not discuss how the business was structured or organized. In addition, the Sixth District did not expressly endorse the presumption of correctness, but stated "that, even if recent tax returns set forth the presumptively correct amount of income, the presumption could be rebutted by evidence of recurring gifts of money that form a regular part of the parent's income picture." ( Id. at pp. 734–735, 89 Cal.Rptr.3d 849.) The court concluded the trial court did not abuse its discretion in considering the obligor parent's regular receipt of cash gifts from his mother as income available for the support of his children even if the gifts were not considered taxable income under federal law. ( Id. at p. 737, 89 Cal.Rptr.3d 849.)

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