California > Court of Appeal > 2020

California Courts of Appeal | Top Cases | September 2020

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People v Laguna

Defendant contends pervasive prosecutorial misconduct denied him his rights to due process and a fair trial. We find some instances of misconduct. We conclude, however, that they do not warrant reversal of defendant's convictions. Despite this conclusion, and because misconduct occurred, we find it appropriate to repeat what we said 30 years ago in People v. Pitts (1990) 223 Cal.App.3d 606, 691. The prosecuting officers' sworn duty is to see to it that the defendant has a fair and impartial trial on competent and legitimate evidence only. " ' "We make due allowance for the zeal which is the natural result of such a legal battle as this, and for the desire of every lawyer to win his [or her] case, but these should be overcome by the conscientious desire of a sworn officer of the court to do his [or her] duty, and not go beyond it." ' " (Ibid.) Moreover, the California Supreme Court has cautioned: "Prosecutors . . . are held to an elevated standard of conduct. 'It is the duty of every member of the bar to "maintain the respect due to the courts" and to "abstain from all offensive personality." [Citations.] A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state. . . . [T]he prosecutor represents "a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." [Citation.] Prosecutors who engage in rude or intemperate behavior, even in response to provocation by opposing counsel, greatly demean the office they hold and the People in whose name they serve. [Citations.]' [Citations.]" (People v. Hill (1998) 17 Cal.4th 800, 819-820 (Hill).)

People v Riberal

We conclude it is not reasonably probable defendants would have received a more favorable result had the kites been excluded. As indicated, the reason for admitting the kites was to show that defendants were part of the Garden Block Norteño gang. The kites were duplicative of this evidence. There was testimony that Brandon and Valles had tattoos identifying their gang membership. Letters were discovered at Brandon's home that had been written to Brandon from other gang members, and that were written in the style that one gang member uses when addressing another. The letters also referred to other gang members. Brandon was identified in several photographs in which he was making gang signs. Brandon and Valles were arrested for robbery in 2010. While in juvenile hall, Valles shouted out, "Garden Block." Also, while in juvenile hall, Valles chipped paint off a wall to make the letters "GB." While in custody for the current offenses, Valles wrote "GB" on a transport vehicle. Valles's cell phone contained gang-related songs and videos. Every time Valles send a text message, it displayed a signature tag of "GBG 14." Rocky's cell phone contained many photos of guns and ammunition, and indicated he was selling guns and ammunition. His phone identified someone as "Buster," which is a gang term for a rival Norteño. One of Rocky's text messages referred to the rival gang Sinners Click, saying they were "fools." Rocky's phone contained numerous text conversations with Brandon. In several conversations they appear to be trying to identify various people. When one person was identified, Rocky texted: "We get that the fool hes just a chump." Most of Rocky's conversations with Brandon focused on guns and ammunition. One of their conversations referred to "SC [Sinners Click] dudes." He also referred to the gang Triple Six in the following text: "Hey baby jerry came by he said u know sum guy from tripple 6 name fready he said hes the one that got maddog and he said he nos wur smicky...

Flagship Theatres of Palm Desert v Century Theatres

The California Supreme Court has not yet addressed the general treatment of vertical restraints under the Cartwright Act, nor has it considered exclusive dealing or vertical group boycott claims more specifically. But California Courts of Appeal generally analyze vertical restraints under the rule of reason. (See Exxon, supra , 51 Cal.App.4th at p. 1681, 60 Cal.Rptr.2d 195 [where an antitrust plaintiff alleges vertical restraints, facts must be pleaded showing "some anticompetitive effect in the larger, interbrand market"]; Bert G. Gianelli Distributing Co. v. Beck & Co. (1985) 172 Cal.App.3d 1020, 1044, 219 Cal.Rptr. 203 ( Gianelli Distributing ) [same], disapproved of on other grounds by Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 46 Cal.Rptr.3d 668, 139 P.3d 56 ; see also Theme Promotions v. News America Marketing FSI (9th Cir. 2008) 546 F.3d 991, 1000 ["California courts have determined that vertical restraints of trade, including exclusive dealing contracts, are not per se unreasonable but instead are subject to a ‘rule of reason’ analysis"] (italics omitted).) And our state Courts of Appeal have also more specifically held that, absent some horizontal component or leveraging of monopoly power, neither exclusive dealing arrangements nor vertical group boycotts are per se violations of the Cartwright Act. (See Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 335, 7 Cal.Rptr.3d 628 ( Fisherman's Wharf ) ["exclusive dealing arrangements are not deemed illegal per se" but rather "tested under a rule of reason"]; Marsh, supra , 200 Cal.App.4th at p. 494, 132 Cal.Rptr.3d 660 [rule of reason applies to "vertical boycott[s]"]; Gianelli Distributing, supra , 172 Cal.App.3d at pp. 1045, 1047, 219 Cal.Rptr. 203 [applying rule of reason to vertical agreement between manufacturer and distributor to shift business away from competing distributer]; see also Antitrust, UCL and Privacy Section, Cal. Lawyers Association, Cal. Antitrust...

Department of Fair Employment and Housing v Superior Court

The separation of powers principle is embodied in the California Constitution, which provides as follows in article III, section 3: "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." " ‘The separation of powers doctrine limits the authority of one of the three branches of government to arrogate to itself the core functions of another branch.’ " ( In re Rosenkrantz (2002) 29 Cal.4th 616, 662, 128 Cal.Rptr.2d 104, 59 P.3d 174.) Although the doctrine is not intended to prohibit one branch from taking action that might affect those of another branch, the doctrine is violated when the actions of one branch "defeat or materially impair the inherent functions of another branch." ( Ibid. ) For example, intrusions by the judiciary into the executive branch's realm of parole matters may violate the separation of powers doctrine. (See Hornung v. Superior Court (2000) 81 Cal.App.4th 1095, 1099, 97 Cal.Rptr.2d 382 [court order allowing inmate to question commissioners regarding their parole-related decision process violated separation of powers].) The trial court's order on the motion to enforce the judgment violates the separation of powers doctrine because it precludes the DFEH from completing its statutory mandate to investigate an administrative complaint under section 12963, and from filing a section 12965 civil action for permanent relief if it determines a suit is warranted after mandatory dispute resolution has been undertaken. The trial court's conclusion that section 12974 serves as the functional equivalent of a section 12965 civil action was incorrect, and the court could not properly restrict the DFEH from filing a new civil action under section 12965 or completing its investigation of the administrative complaint. ( California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 311, ...

People v Baxter

Here, before imposing sentence, the trial court indicated that it would sentence defendant to 16 years in case No. 15CR01145. The court explained that it intended to select the midterm on count 1 because it found this was "a midterm case." Regarding the section 12022.5, subdivision (a) firearm-use enhancements, the court stated, "There is a triad for that, mitigated, aggravated, mid term. I feel the aggravated term should be imposed in that regard. The aggravated term of ten years consecutive is appropriate in light of the history that [defendant] presents. This is a gentleman that has a relatively consistent history with law enforcement, a history of being convicted. And I'm taking that into account in terms of the fact that he should have had no weapon, no ammunition, no nothing of that regard at the time of this tragic incident. I feel the aggravated term is appropriate." The court recognized that it had "the ability to add some additional time" to defendant's sentence in case No. 15CR01145 by, for example, imposing one-year consecutive terms for the prior prison term enhancements, but declined to do so. The court stated that it planned to impose a maximum consecutive sentence of two years eight months in case No. F28562. The court concluded, "I believe this sentence takes into account the circumstances surrounding this incident. It takes into account the jury's findings. It takes into [account] [defendant's] history. It takes into account all of the factors outlined within the Rules of Court . . . . And it is quite consistent with the recommendation offered by Probation."

Fregoso v Eat Club Inc 1

In their declarations filed in support of opposition to Eat Club's disqualification motion, Tran and Picasso each stated: "I have read and considered the arguments set forth in the [disqualification] [m]otion contending that DFM . . . will not be able to adequately represent me in the [HR employment lawsuit] . . . due to its concurrent representation of [Fregoso, Bui, and A. Rodriguez] in their wage and hour claims against Eat Club in this matter." Tran stated: "Eat Club's arguments include that because I served in the role of a human resource manager during [plaintiffs'] employment at Eat Club and [I] had responsibility for setting payroll and other wage and hour policies, [DFM] could cross-examine me about my potential responsibility for Eat Club's wage and hour violations on behalf of the [c]lass [r]epresentatives and their discipline and/or terminations for alleged time card fraud; and that such cross-examination could embarrass me or prejudice my wrongful termination case if it showed that I performed my job incompetently." Picasso similarly stated: "Eat Club's arguments include that because Tran and myself [sic] . . . served in the role of human resource managers during my employment at Eat Club[,] [DFM] could cross-examine me about my potential responsibility for Eat Club's wage and hour violations on behalf of the [c]lass [r]epresentatives and their discipline and/or terminations for alleged time card fraud; and that such cross-examination could embarrass me or prejudice my wrongful termination case if it showed that I performed my job incompetently."

People v Gonzalez 4

However, the instant crimes were classic gang-related crimes. Surveillance footage from the 7-Eleven showed Gonzalez was dressed in gang clothing; he wore a "bright vibrant blue Polo" and a hat with "black D." He had conspicuous gang tattoos, particularly, a "huge Delhi tattoo on his neck." He was with Jesus Mendoza, a GTS member, and Adrian Garcia, a GTS member or associate. When Abram entered the 7-Eleven with Sheila, as a Norteño dropout with Norteño tattoos, he immediately attracted Gonzalez's attention. Gonzalez and his two associates then took up "calculated," tactical, "triangular positions" within the 7-Eleven on account of gang-related imperatives. After Abram and Sheila left the store, Gonzalez followed them outside and took note of the direction in which they were walking. Ultimately, he and his two associates came after Abram and Sheila, in Gonzalez's white truck. The prosecutor described what happened next in her closing argument: "And once [Gonzalez] spots his prey walking up Shell Street, he decides it's got going to be enough to stop there and shoot and kill them, no. He needs the element of surprise and ambush. So what does he do? He drives around the block, passes the street, and then gets out and runs up to them." Sheila testified she was "absolutely positive" it was Gonzalez who ran up and shot multiple times at Abram and her. Gonzalez's clothes were recovered later that night, and gunshot residue was detected on the front of his shirt as well as both sleeves. A subsequent search led to the recovery of nine-millimeter ammunition in two vehicles outside Gonzalez's residence. The prosecution also introduced evidence, with respect to the GTS gang, of multiple predicate offenses and primary activities, even without Gonzalez's manslaughter conviction, along with evidence of interconnections between GTS members. Given this record, it is not reasonably probable that Gonzalez would have obtained a different result absent the admission of evidence of his...

IV Solutions v California Board of Pharmacy

The ALJ next addressed the 15 factors listed in the Guidelines as factors to be considered in determining whether to impose the minimum, maximum, or some intermediate penalty. After addressing each of those factors, the ALJ concluded: "It is abundantly clear that Respondent IV Solutions was the moving force behind all of the violations established in this case. Most of those violations were serious and intentional, the result of dishonesty, deceit or a conscious decision by Mr. Vara to exclude pharmacists from their required duties. Those violations subjected the public to the potential of harm and actually resulted in harm to some patients. While it is true that Respondent IV Solutions has no prior disciplinary record with the Board, it had only been licensed for about six years when it began engaging in misconduct and it had received three citations. Moreover, the violations established in this case were various, consistent and pervasive, spanning from 2008 through 2011 (about the time that the initial accusation was brought). Some mitigating facts were presented, mainly that Respondent IV Solutions cooperated with the Board's investigations and some of the violations were inadvertent. However, the mitigating facts are counter-balanced by aggravating facts, and substantially outweighed by the level of intentional and calculated misconduct. Most glaring is the absence of rehabilitation evidence. Given the breadth and span of the misconduct established, it was incumbent on Respondent IV Solutions to demonstrate some level of acceptance, contrition and dedication to preventing such misconduct in the future. The record is bereft of any hint that Mr. Vara believes he has done much if anything wrong and that similar misconduct in the future will be avoided. Finally, although the prices charged to J.M. and R.M. were not illegal or the basis for discipline, they certainly were unsavory. Since revocation is the maximum discipline recommended for a Category III violation, ...

People v Xiong

Defendant contends he was denied constitutionally effective assistance of counsel based on the way counsel handled this issue. We note that defense counsel's offer of proof after the prosecution's objection to defendant's testimony may have been more persuasive had he explained on the record the specific answer he anticipated defendant would give and connected defendant's answer to Dr. Leo's proposed testimony concerning how cultural experiences might produce false confessions.We also note that prior to trial, defendant moved to introduce Dr. Leo's testimony concerning "the phenomena of false confessions." The trial court reviewed the written submissions and heard argument, but postponed ruling on that in limine motion until the end of defendant's case-in-chief based on People v. Ramos (2004) 121 Cal.App.4th 1194, 1207, 18 Cal.Rptr.3d 167. The court later allowed Dr. Leo's testimony based on defendant's trial testimony. In his brief in support of the in limine motion, defendant indicated that Dr. Leo reviewed Dr. Lee's report. As part of Dr. Lee's evaluation of defendant, Dr. Lee "determined the following: [Defendant] was born in the Ban Vinai Refugee Camp in Thailand and lived in various refugee camps until he reached the age of eight or nine; that [defendant] perceived the camp guards as authoritative figures who were not to be questioned and with whom a refugee camp resident was not to disagree at the risk of being jailed, beaten or disappeared; that [defendant] possessed the same perception and attitude toward authoritative figures, police officers in this case, as the residents at the refugee camp." (Italics added.) Presumably, the italicized text represented what defendant told Dr. Lee and approximates how he would have answered the question posed at trial at issue here. Defendant went on to state in his in limine motion that Dr. Leo would testify "why certain personality traits increase the risk that someone may give a false confession in response to police ...

People v Jones

"A prosecutor is held to a standard higher than that imposed on other attorneys because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state." (People v. Hill (1998) 17 Cal.4th 800, 820.) The standards governing review of [prosecutorial] misconduct claims are settled. " ' "A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ' "unfairness as to make the resulting conviction a denial of due process." ' " ' " (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1266, citing, in part, Darden v. Wainwright (1986) 477 U.S. 168, 181; see People v. Cash (2002) 28 Cal.4th 703, 733.) Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.) "In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review." (Ibid.) "When a claim of misconduct is based on the prosecutor's comments before the jury, ' "the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." ' [Citations.]" (People v. Friend (2009) 47 Cal.4th 1, 29.) To establish a claim of misconduct, "bad faith" on the prosecutor's part is not required. (People v. Hill, supra, 17 Cal.4th at pp. 822-823.) " '[T]he term prosecutorial "misconduct" is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.' [Citation.]" (People v. Centeno (2014) 60 Cal.4th 659, 666-667.)

Doe v Google

Defendants do not deny that plaintiffs’ claims grow from deeply-rooted local interests. This is no surprise, as plaintiffs bring this case under PAGA, which means plaintiffs are serving " ‘as the proxy or agent of the state's labor law enforcement agencies.’ " ( Kim v. Reins Internat. California, Inc. (2020) 9 Cal.5th 73, 81, 259 Cal.Rptr.3d 769, 459 P.3d 1123, italics omitted.) Courts have long recognized the importance of state labor regulation that "provides protections to individual union and nonunion workers alike, and thus ‘neither encourage[s] nor discourage[s] the collective-bargaining processes that are the subject of the NLRA.’ " ( Fort Halifax Packing Co. v. Coyne (1987) 482 U.S. 1, 20–21, 107 S.Ct. 2211, 96 L.Ed.2d 1.) "[P]re-emption should not be lightly inferred in this area, since the establishment of labor standards falls within the traditional police power of the State." ( Id . at p. 21, 107 S.Ct. 2211 ; accord Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 388, 173 Cal.Rptr.3d 289, 327 P.3d 129 ["enactment and enforcement of laws concerning wages, hours, and other terms of employment is within the state's historic police power"—powers that " ‘ "courts should assume ... are not superseded ‘unless that was the clear and manifest purpose of Congress’ " ’ "].) The state statutes plaintiffs seek to enforce are all labor standards of this sort, statutes that preserve the freedom of all employees to practice their profession or trade ( Bus. & Prof. Code, § 16600 ), to report wage-and-hour violations or unsafe working conditions to government agencies ( Lab. Code, § 1102.5 ), and to speak as they choose about their work lives ( Lab. Code, §§ 232, 232.5, 96, subd. (k)). In sum, these statutes establish as a minimum employment standard an employee anti-gag rule. Not only are the interests protected by these statutes matters of traditional local concern, but they may reasonably be seen as peripheral to the NLRA. Nothing about the NLRA...

San Diego County Health and Human Services Agency v CV In re NS

On August 19, 2019, Mother filed a new section 388 petition requesting that the court terminate the legal guardianship, reinstate reunification services to transition N.S. back to her care, and then offer family maintenance services. As changed circumstances, Mother alleged that she had addressed the issues that led to the filing of the original dependency petition and removal of N.S. from her care. She completed the FRC inpatient substance abuse program in January 2019, which included weekly individual therapy, and her drug tests were all negative during the program. After FRC, she completed an intensive three-month outpatient program followed by another three-month outpatient program, during which she had all negative drug tests except for one that was too diluted to get an accurate reading. All of her subsequent tests were negative and a hair follicle test from June 5, 2019, was negative for drugs and alcohol. Since leaving FRC, she had been residing in North County Sober Living and participating in various other substance abuse programs and meetings, and had been testing negative biweekly. She had also completed a parenting class through the Indian Health Council, Inc. Mother alleged that returning N.S. to her care would be in his best interests because they had developed a strong bond despite several years of Grandmother's not allowing visitation. The Agency's reports showed that Mother's visits with N.S. had gone well, and that N.S. had asked for more visits and wanted to continue his relationship with Mother. Mother alleged that she could continue to facilitate contact with Grandmother and other maternal relatives and that she was "also dedicated to [N.S.'s] understanding his paternal side of this family and his heritage as a child of the San Pasqual Band of Mission Indians." She claimed that she had worked closely with the Tribe, which did not endorse adoption by Grandmother, and that she "would like to continue to facilitate [N.S.'s] knowledge and connecti...

Koussaya v City of Stockton

Turning to the officers’ purported violation of SPD general orders, as previously noted, a general order governing vehicle pursuits provides: "The priorities of vehicle pursuits are as follows: [¶] 1. To prevent injury or death to innocent citizens. [¶] 2. To prevent injury or death to a police officer. [¶] 3. The apprehension of the suspect(s)." According to Koussaya, this order requires "the safety of innocent civilians be prioritized over the safety of officers" and therefore prohibited Webb from prioritizing his own life over the lives of the innocent hostages by returning fire when Martinez fired at him. We are not persuaded the general order draws the sharp hierarchical distinctions Koussaya reads into it. Nor was the choice Webb faced on the offramp so clearly delineated between protecting his life over the lives of the hostages. As we have already explained, every time Martinez fired at pursuing officers he endangered the lives of innocent civilians. Notwithstanding the danger returning fire posed to Koussaya and Holt-Singh, Webb's split-second decision to do so was not unreasonable as a matter of law. (See Lopez , supra , 196 Cal.App.4th at pp. 689-691, 126 Cal.Rptr.3d 706.) The same reasoning applies to Anderson's decision to fire at Martinez in an attempt to prevent him from opening fire on the pursuing officers. Finally, Koussaya argues there is a material factual dispute regarding whether or not "Webb's own actions escalated the pursuit, leading [Martinez] to fire the shots which Webb returned." Specifically, Koussaya points to evidence supporting the following facts: "Webb knew there was air support to track the Explorer, making it unnecessary for him to follow so close as to draw fire. Yet he continued to follow the Explorer so closely that both air support and a fellow officer had to warn him to back off. As Webb exited the freeway onto Benjamin Holt, air support warned him the Explorer was stopped at a red light. Webb nevertheless closed in on the ...

County of San Benito v Scagliotti

By contrast, the circumstances surrounding Scagliotti's intentional failure to disclose his potential conflict of interest in the LAFCO vote are much less clear from the record. The key question with respect to the determination of whether Scagliotti's actions fall within the scope of his County employment is whether the wrongdoing is "engendered by or arise[s] from the [employee's] work." (Lisa M., supra, 12 Cal.4th at p. 298.) On the limited record before us, we are unable to conclude that the trial court in the reimbursement litigation erred in its implicit finding that Scagliotti's intentional wrongdoing with respect to the LAFCO vote fell outside the scope of his employment. For example, the trial court in the Pekin litigation did not explicitly address whether Scagliotti's actions in the LAFCO vote amounted to self-dealing or whether Scagliotti abused his job-created authority for "purely personal reasons." (See Farmers, supra, 11 Cal.4th at p. 1013 [holding that "for purposes of respondeat superior, employees do not act within the scope of employment when they abuse job-created authority over others for purely personal reasons"].) The trial court in the Pekin litigation made no findings with respect to foreseeability and the LAFCO vote, and we cannot conclude as a matter of law that intentional wrongdoing in this context is foreseeable. Because Scagliotti bore the burden in the reimbursement litigation of demonstrating that this intentional wrongdoing fell within the scope of his employment, his failure to offer any additional evidence as to the LAFCO vote dooms his attempt on appeal to show trial court error. We therefore decline to disturb on appeal the trial court's implicit finding that Scagliotti's intentional wrongdoing with respect to the LAFCO vote fell outside the scope of his public employment.

Sykes v Equinox Holdings

"[A]n employer does not require good cause to terminate an at-will employee . . . ." (McGrory, supra, 212 Cal.App.4th at p. 1533.) "'The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.'" (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 344 (Arteaga).) Further, "no inference of discrimination can reasonably be drawn from the mere lack of conclusive evidence of misconduct by the employee." (McGrory, at p. 1533.) However, a plaintiff employee may establish pretext by showing "'"the proffered reason had no basis in fact, the proffered reason did not actually motivate the discharge, or, the proffered reason was insufficient to motivate discharge."'" (Soria, supra, 5 Cal.App.5th at p. 594; accord, Hanson v. Lucky Stores, Inc. (1999) 74 Cal.App.4th 215, 224; see also Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005 (Hersant).) While "[p]roof that the employer's proffered reasons are unworthy of credence may 'considerably assist' a circumstantial case of discrimination, because it suggests the employer had cause to hide its true reasons[,] . . . there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions." (Guz, supra, 24 Cal.4th at p. 361.) Sykes attempts to show pretext in two ways. First, Sykes argues that he was "bogusly written up" because the two write-ups "were fabricated." Second, Sykes argues that the temporal proximity between his complaints to management on May 23, 2013 and his termination several days later establishes pretext. However, neither argument creates a triable issue of fact regarding pretext.

People v Moreno

The admonition at issue here is dramatically different from the intimidation at issue in In re Martin (1987) 44 Cal.3d 1, 30-32, relied on by Moreno. There, the California Supreme Court found a violation of the Sixth Amendment and the California Constitution where a defense witness was arrested as an accessory to murder in front of prospective defense witnesses immediately after his trial testimony, and as a result other defense witnesses refused to give substantive testimony out of fear of prosecutorial retaliation. (In re Martin, at pp. 33-34.) Moreno's reliance on People v. Hill (1998) 17 Cal.4th 800, 835, People v. Schroeder (1991) 227 Cal.App.3d 784, 789, 793, and Webb v. Texas (1972) 409 U.S. 95, 97-98 is similarly misplaced. In Hill, the prosecutor improperly threatened a defense witness "in advance of trial with a perjury prosecution." (Hill, at p. 835 ["Threatening a defense witness with a perjury prosecution also constitutes prosecutorial misconduct that violates a defendant's constitutional rights."].) Similarly, in Webb, the United States Supreme Court held the trial court's "threatening remarks, directed only at the single witness for the defense, effectively drove that witness off the stand, and thus deprived [the defendant] of due process of law" where "the judge implied that he expected [the witness] to lie, and went on to assure him that if he lied, he would be prosecuted and probably convicted for perjury, that the sentence for that conviction would be added on to his present sentence, and that the result would be to impair his chances for parole." (Webb, at p. 97-98.) In Schroeder, the trial court improperly dissuaded the defense witness from testifying "[b]y its frequent interruptions, admonishments and questions" concerning her privilege against self-incrimination, making it clear to the witness that the court disagreed with her decision to testify. (Schroeder, at p. 793.) C. The Trial Court Did Not Abuse Its Discretion in Providing Readback of...

People v Herrera

The jury was instructed as follows with a modified version of CALCRIM No. 600: "The defendant is charged in Counts 1 and 2 with attempted murder. [¶] To prove that the defendant is guilty of attempted murder, the People must prove that: [¶] 1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person. [¶] A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt. The jury also was given CALCRIM No. 601, modified as follows: "If you find the defendant guilty of attempted murder under Count 1 and 2, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation. [¶] The defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act of attempted murder. [¶] The length of time the person spends considering whether to kill does not alone determine whether the attempted killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration of the choice and i...

People v Roland

This evidence supports the findings that Roland knowingly and intentionally deceived homeowners by false or fraudulent representation or pretense that he had a legal process for keeping their homes and avoiding foreclosure; that he did so intending to persuade the homeowners to let him take possession and ownership of the property; and that the homeowners let Roland take possession and ownership of their money and property because they relied on Roland's representation or pretense. (§ 484, subd. (a); CALCRIM No. 1804.) With respect to the homebuyers, the evidence supports the findings that Roland knowingly and intentionally deceived the buyers by false or fraudulent representation or pretense that he could convey title free and clear of all liens; that he did so intending to persuade the homebuyers to let him take possession and ownership of the purchase money, and the homebuyers let Roland take possession and ownership of these funds because they relied on Roland's representation or pretense. (§ 484, subd. (a); CALCRIM No. 1804.) The evidence further supports the finding that Roland intentionally used false pretenses to deceive both the homeowners and buyers by either giving information he knew was false, by making misrepresentations recklessly without information that justifies a reasonable belief in its truth, or by making promises to both the homeowners and buyers, not intending to do what he promised (e.g., he had a legitimate process to stop the homeowners' foreclosures, and he held legitimate title to the properties that he was authorized to transfer to the homebuyers). (CALCRIM No. 1804.) The value of the money or property Roland obtained in each transaction far exceeded $950. (§ 487, subd. (a), CALCRIM No. 1801.) It is no defense that some or all of the property wrongfully obtained was ultimately returned to the victim. (Pond, supra, 44 Cal.2d at p. 674; CALCRIM No. 1862.) The evidence is therefore sufficient to establish that Roland committed all four cou...

Richardson v Ruan Transportation

Richardson's work was of substantial importance to the operations of Ruan's business not because his mistakes would have been financially significant to the company, but because the company's ability to carry out milk transport in a financially feasible way was dependent on how Richardson assessed real-time conditions to make ongoing profitability and efficiency analyses while managing and making decisions about Ruan's operational resources. RedTrak could not perform those operational efficiency analyses, nor could they be assessed by anyone else in advance or plotted out ahead of time on some sort of formulaic decision tree. Given its thin profit margin, Ruan could not have maintained its milk transport business at the Tulare terminal without the real-time efficiency analyses performed by Richardson as a transportation supervisor. If Richardson were merely directing drivers based on efficiency analyses performed by RedTrak or pursuant to a preset protocol, he would be more like a bank teller who does not perform work of substantial importance. (29 C.F.R. § 541.205(c)(1).) However, Richardson himself was assessing and analyzing the data to make determinations about what actions, or series of actions, would meet customer needs, satisfy relevant regulatory parameters, and be most profitably efficient to Ruan; then, based on those analyses, he had to decide what resources to deploy and how. Those assessments and determinations are more akin to those made by the cashier of the bank than the bank teller.

LA County Department of Children and Family Services v HA In re AA

Father's counsel argued first that the Department had not made reasonable efforts to prevent removal. Counsel argued that the Department contributed to delays during the past three years, first by not trying to find father, and then after the court granted father's Ansley motion, taking almost a full year to hold a CFT planning meeting in September 2017. Counsel argued that based on the social worker's testimony, the Department did not make reasonable efforts to prevent removal, because the children were not in individual counseling with a goal of conjoint counseling with father. Next, father's counsel argued the Department had not provided clear and convincing evidence that removal was required under section 361, subdivision (c), because the evidence of domestic violence, abuse, and neglect was too far removed in time to establish that the children would be in substantial danger of significant harm unless removed from father's custody. Father's counsel conceded that the "children are completely estranged from their father," but when mother died, father stepped up and immediately started the process to apply for a visa. The Department required father to complete classes, but they never ensured phone communication with the children. Father sought credit for classes he had already completed, and asked the court to order parent child interactive therapy without a prior recommendation from a therapist. Father also pointed out that the Department never recommended a domestic violence program, and because father had already completed anger management, an additional domestic violence program was not warranted, even though minor's counsel was requesting it. To counter any concerns that he may be a flight risk, father was willing to surrender his passport and identification during any visits, and father asked for the court to give the Department discretion to liberalize visits. Father also sought co-educational rights, noting that it appeared that A.A. was one or possibly t...

People v Coleman

The jury found true each of the kidnaping-related "one-strike" allegations (§ 667.61, subd. (d)(2)) that were attached to many of the charged sex offenses (counts 3, 7-11, 15-16, 19, 21-25). With respect to this special circumstance allegation, the prosecutor argued: "This special allegation is charged under nearly every single count. It's a conduct allegation. You don't need to worry specifically about each and every charge, but just know that the defendant had these individuals kidnapped the entire time from the moment that they went behind the abandoned house. [¶] The enhancements that—or the allegations that are charged here, the elements are that the defendant took, held, or detained another person using force or fear. He used that force or fear and moved the other person or made them move a substantial distance, and that that person did not consent to the movement, and that the defendant did not actually and reasonably believe the person consented. [¶] Now, here's the important thing to note about this, Ladies and Gentlemen, because you may ask yourself, well, initially the two girls walked with the defendant consensually, but consent can be withdrawn. If a person . . . agreed to go with defendant, that consent ended when they changed their mind and no longer freely agreed to go with or be moved by the defendant. [¶] And that's exactly what happened here, Ladies and Gentlemen. At the point in time when (Jane Doe 2) and (Jane Doe 1) got back behind that abandoned house, and the defendant began drugging them, at that point their consent had been withdrawn. They no longer felt free to leave. [¶] Here are some things to consider when determining whether or not an individual is kidnapped for purposes of this allegation. Consider whether or not the victim had sufficient maturity and understanding to choose to go with the defendant. (Jane Doe 1) was alone. It was dark. She was with a stranger, a man who was much older and much bigger than she was. She also did not k...

People v Alford

Focusing on the first step in the Batson/Wheeler analysis, we agree with the superior court's finding that no prima facie case had been established by the prosecutor's use of a peremptory strike against "Prospective Juror No. 7." As the superior court noted, the prosecutor had not struck any other African-American jurors at that point, but had passed on another, "Prospective Juror No. 12," a number of times. The single peremptory strike of an African-American juror, while another remained on the panel, did not give rise to an inference of discriminatory purpose. (See Scott, supra, 61 Cal.4th at p. 383; People v. Christopher (1991) 1 Cal.App.4th 666, 673 (Christopher) ["prosecutor's challenge of one or two prospective jurors of the same racial or ethnic background as the defendant will not establish a prima facie case of impermissible group-based bias in the absence of other significant supporting evidence"]; People v. Box (2000) 23 Cal.4th 1153, 1188-1189 (Box), disapproved on another ground in People v. Martinez (2010) 47 Cal.4th 911, 948, fn. 10 [no prima facie case where "only basis for establishing a prima facie case cited by defense counsel was that the prospective jurors—like defendant—were Black"].)

People v Hernandez 1

Finally, Heredia argues that a comparative analysis of the prosecutor's treatment of S., C., and Juror No. 8 suggests the prosecutor's justifications were merely pretextual. Comparative juror analysis allows the court to " 'compare the responses of the challenged jurors with those of similar unchallenged jurors who were not members of the challenged jurors' racial group.'" (People v. Hardy, supra, 5 Cal.5th at p. 77.) "[E]vidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record is adequate to permit the urged comparisons." (People v. Lenix, supra, 44 Cal.4th at p. 622; see People v. Gutierrez (2017) 2 Cal.5th 1150, 1174.) However, the trial court here never conducted a comparative analysis, and the record does not appear adequate to conduct such an analysis for the first time on appeal. As both parties acknowledge, Juror No. 8's ethnicity is unclear from the record. Further, there was almost no voir dire questioning of any of the individuals whom Heredia requests us to compare, leaving us with little more than basic information regarding each individual's immediate family and occupation. It would be impossible for us to make any meaningful comparisons or conclusions on such a silent record. We do note, with the limited information before us, that the prosecutor expressed her subjective belief that the type of work done by Juror No. 8 did not involve direct patient care, whereas the type of work done by S. and C. did involve such care. It is not inherently improbable that a prosecutor would subjectively believe that persons engaged in the direct physical care of others may be more sympathetic jurors, and therefore less desirable jurors, to sit on any criminal case.

Alameda County Social Services Agency v AK In re AN

In any event, we have difficulty discerning any prejudice resulting from counsel's failure to raise the issue of visitation at the 12-month hearing. Even assuming mother's contention that her second counsel should have raised the purported inadequacy of visitation at the 12-month hearing, we are unpersuaded by her speculative argument that services would have been extended and that it is reasonably probable she would have ultimately obtained a result more favorable to her had he done so. "[I]t is settled that services need not be perfect but only reasonable under the circumstances." (In re Christian K. (2018) 21 Cal.App.5th 620, 628, fn. 5.) The record supports the conclusion that reasonable services were provided under the circumstances, as the agency attempted to arrange video visits with the jail, but no one in the grandmother's family had the necessary type of phone. Mother suggests that the agency could have set up video chats "using an agency phone or computer," but this contention assumes (without evidentiary support) that the agency phones or computers were or could have been configured to support such chats, and that the grandmother's family could have brought the minor to the agency for such visits on a regular basis. "In almost all cases it will be true that more services could have been provided more frequently and that the services provided were imperfect. The standard is not whether the services provided were the best that might be provided in an ideal world, but whether the services were reasonable under the circumstances." (In re Misako R. (1991) 2 Cal.App.4th 538, 547, italics added.) Mother's contention also ignores the caregivers' seemingly reasonable concern that seeing mother in jail (through glass) would make the young minor "sadder" and potentially be "scary for her." On this record, the court would likely have rejected any contention at the 12-month hearing that the agency had failed to provide reasonable services by not making additional ef...

People v Belyew

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

People v Zaheer

Here we are presented with such an exceptional case. It is clear from defense counsel's own statements in conjunction with his mistrial and new trial motions that there was no tactical basis for his failure to provide the second jury with evidence establishing that Zaheer was driving his own car on the night in question. It was merely an oversight, understandable perhaps given that the case was tried twice by the same attorneys on both sides. As defense counsel explained, he mistakenly thought the prosecution stipulated or conceded that Zaheer was driving his Honda in the first trial. But while the prosecutor did make casual references to that effect, there was no express agreement or stipulation. And when Zaheer declined to testify, counsel neglected to shore up a gap that would be left in the evidence without his client's testimony. After the prosecutor exploited the gap in closing argument, defense counsel conceded that this failure of proof constituted "ineffective assistance on my part." This provides us with rare insight into counsel's own evaluation of his conduct. Apart from defense counsel's own concession, the architecture of the defense case demonstrates that a reasonable lawyer would not have overlooked the issue. A weakness in Martha's account was her assertion that Zaheer locked her door from his side of the car. Defense counsel examined three witnesses about the broken electronic locks—a point that would be entirely irrelevant if Zaheer and Martha were in a different car. Even without calling additional witnesses in the second trial, the defense attorney could simply have asked Martha which car they were in. Indeed, counsel had nothing to lose in posing this question; in the event her story changed, he could impeach Martha with her prior statements to police describing the vehicle as a Honda. We can conceive of no tactical reason for the omission of this evidence, and the significant hole it left in the defense case demonstrates counsel's objectivel...

People v Bennett 1

In considering all the surrounding circumstances, we have no difficulty concluding that substantial evidence supports the jury's implied finding that, for purposes of a violation of section 422, subdivision (a), Bennett's threat—viz., that he told D.M. "I'm going to kill you"—was immediate and unconditional. Within a matter of a few hours on the morning of April 30, 2018: Bennett charged at D.M. on Dickens, advancing into his personal space, yelling, " 'If you messed with my bike, I'm going to fuck you up' "; as D.M. retreated, Bennett punched him in the back, hurting him; Bennett ran down Harbor View, aggressively grabbing D.M. around his upper body and arms and pushing him into some bushes; D.M. fell to the ground, and Bennett punched D.M. repeatedly; once he escaped, D.M. ran away, "winded," "beat up," "scratched up," and "afraid" (italics added); Bennett chased D.M. for many blocks, catching up to him on Rosecrans; Bennett approached quickly, holding two large rocks the size of softballs; like he was pitching a baseball, Bennett threw one of the rocks at D.M., striking him in the back; the force of the impact knocked D.M. down in the middle of a busy city street, causing him to lose consciousness as he ran into oncoming traffic; laying in the street, D.M. heard cars, brakes, and screeching tires, and he saw a bus swerve, narrowly missing him; meanwhile, holding a rock, Bennett got on top of him; D.M. again managed to escape, crossing the street, at which time he kneeled on the sidewalk by the post office, no longer able to stand due to exhaustion; minutes later, Bennett appeared from the shadows on the sidewalk; again armed with two rocks, Bennett approached D.M., saying multiple times, " 'I'm going to kill you' "; and as a result of this ordeal, D.M. suffered a three-inch gash to his right arm (that required a hospital visit and stitches and left a scar), a contusion to his lower back, lacerations on his side, cuts to his left leg, and bruises to his side and...

Dunlap v Stanley

Kilpatrick has always maintained Dunlap's ability to appeal the 2006 judgment ended prior to Kilpatrick's involvement in the divorce case. The deadline to file a notice of appeal is ordinarily 60 days from service of the notice of entry of judgment. (See Cal. Rules of Court, rule 8.104(a)(1)(A)-(B).) Notice of entry of the 2006 judgment was served August 8, 2006. Dunlap argued his notice of appeal was not due until February 5, 2007. He impliedly relied on rule 8.104(a)(1)(C) (former rule 2(a)(3)), which establishes a maximum deadline of 180 days from the entry of judgment in the absence of circumstances triggering a shorter deadline. During the Phase II trial, Dunlap acknowledged Kilpatrick "had always told [him] that [his] appeal rights ... had lapsed November 6, 2006." Such a calculation is generally consistent with rule 8.108(b)(1)(B) (former rule 3(a)(2)), which extends the normal deadline for filing an appeal to 30 days after the denial of a motion for new trial by operation of law. As previously explained, Dunlap's motion for new trial was denied by operation of law in October 2006, i.e., 60 days subsequent to service of the notice of entry of judgment on August 8, 2006. (See Code Civ. Proc., former § 660.)

Rudnick v Rudnick

According to Oscar's declaration in support of his proposed final distribution, the new information concerning the gold mine was significant and would prudently require a new approach in liquidating the trust. "This [the gold mine's potential value] required a complete tactical shift as to disposing of this particular asset. To sell it for land value with that potential gold mine value would be irresponsible. I could not dispose of the asset to meet a deadline if that meant sacrificing significant value that belongs to the beneficiaries. No beneficiary disagreed with this. Indeed, those with whom I discussed this were adamant that I seek to exploit the full value of this asset, especially in a market when gold had appreciated. This asset cannot be developed, in my view, within the structure of a Trust. It requires investment by its owners in order to maximize it. The [trust] is not a vehicle for raising money. It is not a business, and development of a gold mine is a business. Terminating the [t]rust could thus be accomplished not by a sale of this asset, but rather by a distribution of it to a business entity owned by the beneficiaries. That tactical shift caused a substantial delay in termination, as a new entity had to be researched, the [e]xisting Mammoth Mountain Mining Company [the corporation having title to the mine, the shares of which were owned by the trust] had to be thoroughly investigated, and a mechanism had to be conceived by our lawyers that would comply with [the trust], Probate Law and Corporate Law." After further investigation, it did not appear wise to use the Mammoth Mountain Mining Company as the vehicle for this purpose, since its records were antiquated and potentially incomplete. After considering the available options, and in consultation with legal counsel, Oscar requested a new entity be formed, Rudnick Keyesville, LLC, to own and operate the gold mine, with the intent that proportional membership interests in Rudnick Keyesville, LLC, w...

Alborzi v University of S California

In reaching its conclusion, the court stated that in a whistleblower action, a "requirement that [a] plaintiff succeed in overturning an allegedly retaliatory, as opposed to remedial, administrative decision before filing a statutory action would very seriously compromise the legislative purpose to encourage and protect whistleblowers." ( Fahlen, supra , 58 Cal.4th at p. 678, 168 Cal.Rptr.3d 165, 318 P.3d 833.) The court noted that section 1278.5 allows a plaintiff the opportunity to "prove by a preponderance of evidence, to a judicial fact finder, his or her distinct claim that there was a forbidden retaliatory motive" in the defendant employer's decision. ( Ibid . ) The court noted that requiring judicial exhaustion of an administrative decision before a whistleblower could file a lawsuit could, in some instances, "flatly contradict the provision of section 1278.5, subdivision (d)(1) that, for purposes of a civil whistleblower suit, there is a ‘rebuttable presumption’ of retaliatory motive if a discriminatory action is taken against a hospital physician, with the knowledge of the facility's responsible staff, within 120 days after he or she has submitted a protected grievance or complaint." ( Ibid . ) The court concluded that "a hospital staff physician who claims a hospital decision to restrict or terminate his staff privileges was an act in retaliation for his or her whistleblowing in furtherance of patient care and safety need not seek and obtain a mandamus petition to overturn the decision before filing a civil action under section 1278.5." ( Id . at p. 687, 168 Cal.Rptr.3d 165, 318 P.3d 833 ; see also Taswell, supra , 23 Cal.App.5th at p. 361, 232 Cal.Rptr.3d 628 ["to require a whistleblower complainant under [ section 1278.5 ] to exhaust judicial remedies by challenging an adverse administrative decision through a petition for a writ of mandamus ‘would be contrary to the evident legislative intent.’ "].) Plaintiffs assert that under Fahlen , they were not re...

Oakland Bulk and Oversized Terminal v City of Oakland

In December 2016, OBOT filed a lawsuit in federal court: Oakland Bulk & Oversized Terminal, LLC v. City of Oakland (N.D. Cal. 2018) 321 F.Supp.3d 986 (federal action). The federal action asserted that the City breached the development agreement by applying the coal ban to the terminal. Following a court trial, on May 15, 2018, the district court judge issued his findings of fact and conclusions, framing the question at issue as "whether the record before the City Council when it made this decision [adopting the resolution] contained substantial evidence that the proposed coal operations would pose a substantial health or safety danger." And he answered "no," holding as follows: "Even under the deferential standard of review in the development agreement, the record before the City Council does not contain enough evidence to support the City Council's conclusion that the proposed coal operations would pose a substantial danger to the people in Oakland. In fact, the record is riddled with inaccuracies, major evidentiary gaps, erroneous assumptions, and faulty analyses, to the point that no reliable conclusion about health or safety dangers could be drawn from it. Perhaps a more thorough investigation could result in a lawful determination that coal operations may be restricted at the facility, but in this case, the record was inadequate. Because the resolution adopted by the City Council applying the coal Ordinance to this shipping facility constitutes a breach of the development agreement, it is invalid, and the City may not rely on it to restrict operations there." ( Id. at pp. 988–989.) In light of the above, the district court held that "The City is therefore enjoined from relying on the Resolution either to apply the Ordinance to OBOT or to restrict future coal operations at the facility. As a practical matter, this renders the coal Ordinance a nullity, because the only reason the City adopted it was to restrict OBOT's operations, and OBOT is the only facility in...

People v Cortez

Defendant argues the excluded testimony about whether A.C. brought boys around was necessary to fully and clearly articulate that T. never saw defendant act jealously with any boy who was specifically with A.C., which was relevant to contradict the Hilterbrands' general characterization of defendant as acting more like a jealous boyfriend than a father figure. However, T.'s testimony that defendant did not act jealously about "any boys that came around[]" was admitted. The follow-up question whether A.C. in particular brought "any boys around[]" added next to nothing, particularly in context. T.'s first answer that she did not remember defendant being jealous of any boy who came around was broad and necessarily included any boys who were around because of A.C. Moreover, it was clear in context that the question about defendant's jealousy was in direct relationship to A.C. The prior question asked by defense counsel was whether A.C. confided in T. that A.C. was in love with defendant, to which T. answered no. The immediate follow-up question was whether T. remembered her father being jealous about any boys that came around. Within that context, there was very little likelihood the jury could have misunderstood that T. never saw defendant act jealously as to any boys, including those who were with A.C.

People v Ruiz Lopez

The defendant in Cortes stabbed another man to death during an altercation at a party and was subsequently convicted of first degree murder. (Cortes, supra, 192 Cal.App.4th at pp. 876-877.) He was evaluated by Dr. Dondershine, a psychiatrist who also testified at trial. (Id. at p. 891.) However, the court precluded "Dr. Dondershine from testifying about [the] defendant's upbringing, traumatic events in his life or their effect on his mental condition at the time of the crime, at all." (Id. at p. 899.) With respect to dissociation and posttraumatic stress disorder (PTSD), the trial court prohibited Dondershine from testifying "that (1) [the] defendant was in a dissociative state; or (2) exhibited any kind of behavior that established a foundation for a finding that he was in a dissociative state; or (3) to any hypotheticals, '[be]cause that's just leading to linking up an opinion'; or (4) it is psychiatrically likely [the] defendant's mental functioning was overwhelmed and impaired, because it goes to his state of mind before the crime; (5) [the] defendant has a history of extreme emotional distress, bad upbringing and mothering, because the court doubted that Dr. Dondershine spent enough time with [the] defendant to have an adequate foundation to testify about 'any of that'; or (6) [the] defendant has a history of emotional distress, including PTSD; or (7) [the] defendant had PTSD at the time of the act or that in his past there were any particular features that met those criteria, except to the extent that the jury was going to hear about his prior bad acts; or (8) Dr. Dondershine diagnosed [the] defendant with an adjustment disorder involving conduct and emotional control issues, because 'that's essentially the same as his testimony about a dissociative state'; or (9) [the] defendant experienced an emotional trauma leading to a somatic sensory recall of some incident, because Dr. Dondershine was not going to be allowed to render any opinion about [the] defendant ...

Vosburg v County of Fresno

Second, the members of DACE would have been harmed in at least two ways if the election contest was successful. A successful election contest would have nullified the votes they cast in the November 2017 election and, as a result, adversely effected their right to vote. Also, the passage of Measure C would have affected the economic interests of patients in CSH-Coalinga by increasing the amount of sales tax they paid on goods purchased. Based on these two impacts, we conclude the second condition was satisfied. Third, the election contest involved questions of a public nature because Measure C, a sales tax measure, has public aspects both in terms of who pays the cost of local government and what services are provided the City of Coalinga. Furthermore, the specific challenge raised in this election contest addressed the right of patients at CSH-Coalinga to vote in the election. A Californian's right to vote is a fundamental constitutional right. ( County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 321, 200 Cal.Rptr.3d 714.) The right to vote is also a fundamental right for purposes of the equal protection clause in the Fourteenth Amendment. ( Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 678, 51 Cal.Rptr.3d 821.) Using a bit of hyperbole for emphasis, Justice Mosk stated for a unanimous Supreme Court that "the right to vote may be the most fundamental of all ...." ( Board of Supervisors v. Local Agency Formation Com. (1992) 3 Cal.4th 903, 914, 13 Cal.Rptr.2d 245, 838 P.2d 1198 ; see Pearl on Attorney Fees, supra , § 3.45, pp. 3-37 to 3-40 [cases holding the vindication of constitutional rights qualifies as an action enforcing important rights affecting the public interest].) Therefore, we conclude the specific challenge of illegal votes raised in this election contest involves questions of a public nature.

Murray v Tran

In applying this test, the FilmOn.com court held the defendant had not met its burden to show its alleged wrongful conduct sufficiently contributed to the debate on a public issue to warrant protection under section 425.16, subdivision (e)(4). ( FilmOn.com, supra , 7 Cal.5th at pp. 152-154, 246 Cal.Rptr.3d 591, 439 P.3d 1156.) The court said the defendant issued its reports with the alleged false information "not to the wider public—who may well be interested" in the subject matter—"but privately, to a coterie of paying clients," who use the information for "business purposes alone." ( Id. at p. 153, 246 Cal.Rptr.3d 591, 439 P.3d 1156.) Thus because the alleged wrongful statements about matters of public interest "never entered the public sphere, and the parties never intended it to," the defendant's reports were "too remotely connected to the public conversation about those issues, to merit protection under [ section 425.16, subdivision (e)(4)'s] catchall provision." ( Id. at p. 140, 246 Cal.Rptr.3d 591, 439 P.3d 1156 ). Three months later, the high court decided Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 249 Cal.Rptr.3d 569, 444 P.3d 706 ( Wilson ), in which the court addressed primarily the issue whether employment claims alleging discrimination and retaliation can reflect protected activity under section 425.16. ( Wilson , at pp. 881, 885-898, 249 Cal.Rptr.3d 569, 444 P.3d 706.) But the court also considered the issue whether the anti-SLAPP statute applied to the employee's defamation claims, which alleged that the employer (CNN) falsely told the employee's supervisor and the employee's prospective future employers that the employee had committed plagiarism. ( Id. at p. 899, 249 Cal.Rptr.3d 569, 444 P.3d 706.) The court concluded the anti-SLAPP statute did not apply to these statements because they were about one particular instance of plagiarism and not the bigger issue of honesty in the media. ( Id. at p. 903, 249 Cal.Rptr.3d 569, 444 P.3d 706.)...

People v Dean

Relying on Chiu, supra, 59 Cal.4th 155 and People v. Chun (2009) 45 Cal.4th 1172 (Chun), the defendants assert the usual remedy when the jury is instructed on a theory of liability that is later deemed invalid based on a change in the law, is reversal of the defendant's conviction. (See Chiu, at pp. 167-168, Chun, at p. 1203.) They argue they should not have to forego that remedy, and the associated Sixth Amendment right to a jury trial, in order to pursue resentencing under section 1170.95. Chiu and Chun are not applicable here, though, as those cases dealt with legally invalid theories of liability, as opposed to a legislative decision to change the statutory definition of a particular crime. (Compare Chiu, at pp. 158-159 ["We now hold that an aider and abettor may not be convicted of first degree premeditated murder under the natural and probable consequences doctrine"]; Chun, at p. 1178 ["We will overrule some of our decisions and hold that all assaultive-type crimes, such as a violation of section 246, merge with the charged homicide and cannot be the basis for a second degree felony-murder instruction"]; Gooden, supra, 42 Cal.App.5th at p. 274.) The retroactive relief afforded by Senate Bill 1437 does not implicate and is not subject to a Sixth Amendment analysis. (See Anthony, supra, 32 Cal.App.5th at p. 1156; see also People v. Perez (2018) 4 Cal.5th 1055, 1063-1064 ["We hold that the Sixth Amendment does not prohibit trial courts from relying on facts not found by a jury in determining applicability of Proposition 36's resentencing ineligibility criteria."].)

People v Galvan

For count 1, gross vehicular manslaughter while intoxicated, the court instructed the jury with CALCRIM No. 590, which advised the jury the People were required to prove: "1. The defendant drove under the influence of a drug; [¶] 2. While driving that vehicle under the influence of a drug, the defendant also committed an infraction; [¶] 3. The defendant committed the infraction with gross negligence; [¶] AND [¶] 4. The defendant's grossly negligent conduct caused the death of another person." The instruction defined gross negligence as "more than ordinary carelessness, inattention or mistake in judgment" and advised the jury a person "acts with gross negligence when he or she acts in a reckless way that creates a high risk of death or great bodily injury; and a reasonable person would have known that acting in that way would create such a risk." It advised the jury that gross negligence "is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act." It further stated that the combination of driving a vehicle under the influence of a drug and violating a traffic law was not enough to establish gross negligence.

Gomez v Smith

The tort of intentional interference with expected inheritance was first recognized in California in 2012. ( Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1050-1056, 141 Cal.Rptr.3d 142.) To establish a defendant committed the tort, a plaintiff must prove six elements. "First, the plaintiff must p[rove] he [or she] had an expectancy of an inheritance. It is not necessary to [prove] that ‘one is in fact named as a beneficiary in the will or that one has been devised the particular property at issue. [Citation.] That requirement would defeat the purpose of an expectancy claim.... It is only the expectation that one will receive some interest that gives rise to a cause of action. [Citations.]’ [Citation.] Second, as in other interference torts, the [plaintiff] must [prove] causation. ‘This means that, as in other cases involving recovery for loss of expectancies ... there must be proof amounting to a reasonable degree of certainty that the bequest or devise would have been in effect at the time of the death of the testator ... if there had been no such interference.’ [Citation.] Third, the plaintiff must p[rove] intent, i.e., that the defendant had knowledge of the plaintiff's expectancy of inheritance and took deliberate action to interfere with it. [Citation.] Fourth, the [plaintiff] must [prove] that the interference was conducted by independently tortious means, i.e., the underlying conduct must be wrong for some reason other than the fact of the interference. [Citation.] Fi[fth], the plaintiff must p[rove] he [or she] was damaged by the defendant's interference. [Citation.] [¶] [And, sixth], [the] defendant must direct the independently tortious conduct at someone other than the plaintiff." ( Id. at p. 1057, 141 Cal.Rptr.3d 142.)

Murray v UPS Capital Insurance Agency

The court in Williams specifically highlighted the following evidence as being relevant to its analysis: (1) the agent previously worked with the owners to bundle insurance plans needed for other dealerships and represented herself as " ‘the expert on the product necessary to satisfy [the dealership's] insurance needs’ "; (2) the agent told the owners a meeting to discuss insurance plans was not necessary because of her expertise; (3) the owner did not request specific insurance and asked the agent for insurance "needed to operate the business"; (4) the owner understood the agent was "the go-to person" for dealership insurance needs; (5) the owner filled in basic information but left blank all the portions of the application relating to insurance coverages; (6) the agent selected the insurance coverages and did not give it to the owner to review before she submitted it to the insurance company; (7) the agent was aware that employees spraying paint had "the most dangerous jobs and that it would be important for a sprayer's employer to know if its insurance provided coverage for on-the-job injuries"; (8) she was aware workers compensation insurance was mandatory in California; and (9) the agent represented and marketed the insurance package as having been specifically designed for the owner. ( Williams, supra , 177 Cal.App.4th at pp. 627-628, 98 Cal.Rptr.3d 910.) It was not until after one of the sprayers became severely injured in a fire that the owners learned they did not have the necessary workers compensation coverage. ( Id. at p. 629, 98 Cal.Rptr.3d 910.) The court rejected the agency's argument there was no legal basis for finding the agent's expertise "created a heightened duty to [the owners], because ‘[a]ny expertise that she possessed did not extend to worker's compensation insurance, which was outside the scope of her alleged expertise concerning the insurance needs of [the dealership,’ and because [the owners] ‘never knew about the supposed expertise, and...

Ehirim v Ehirim In re Marriage of Ehirim

Again, we review an award of sanctions under section 271 for abuse of discretion, and we review any findings of fact that formed the basis of the sanctions award for substantial evidence. (In re Marriage of Corona, supra, 172 Cal.App.4th at pp. 1225-1226.) In making the challenged awards, the court found that Dominic had "unduly delayed resolution" of the case and had caused Bibian to incur unnecessary attorney's fees to resolve "this post-Judgment matter" by failing to engage in good faith efforts to resolve the postseparation issues, and by making "unreasonable" demands on Bibian to settle the outstanding issues, including: (1) by demanding that she waive her right to collect the $13,200 in sanctions that the court had previously awarded her; (2) by demanding that she waive her interest in Dominic's CalPERS pension plan and the balance of the equalization payment that was due to her for the Skyridge Lane residence; and (3) by threatening "that he would keep this litigation going for ten (10) years if she did not accede to his demands." The court also found that Dominic "made repeated oral requests to continue the trial on the post-judgment issues without complying with Court rules and procedures," and that his "litigation conduct" had "frustrated the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys." (§ 271.) The record amply supports these factual findings and shows that the sanctions and attorney's fees awards were made in accordance with sections 271 and 2030. The awards were not an abuse of the court's discretion.



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