Articles Posted in California Courts of Appeal

A jury convicted defendant Spencer Marsh of assault with a deadly weapon and vandalism. The charges arose from an incident involving a formal Navy SEAL at a fitness club parking lot; the brake lines to the SEAL’s vehicle had been cut, and defendant was identified as a person on surveillance video under the SEAL’s vehicle at the times the SEAL was inside the club. The jury also found true the allegations in connection with count 1, that the deadly weapon used to commit this offense was a vehicle, and that defendant personally used this dangerous and deadly weapon; and in connection with count 2, that the amount of property damage was $400 or more. The court sentenced defendant to the midterm of three years in prison on count 1, and stayed under Penal Code section 654(a) a two-year midterm sentence on count 2. On appeal, defendant contended the evidence was insufficient to support his conviction of assault with a deadly weapon; that the court prejudicially erred in instructing the jury on the meaning of the phrase "deadly weapon"; and that defense counsel violated his constitutional rights by allegedly conceding during closing argument that defendant was guilty of the vandalism charge in count 2. Finding no reversible error, the Court of Appeal affirmed. View "California v. Marsh" on Justia Law

Defendant Daniel Sexton was convicted of several crimes committed against Jane Doe, his ex-wife. During the course of the investigation, Jane first accused him of domestic violence, later recanted her allegations, and then reverted to her original statements. At trial, the jury received testimony from an expert who offered her professional opinion about statements typically made by victims of intimate partner battering. Specifically, the expert asserted that it was not unusual for victims of intimate partner battering to cycle between periods of seeking assistance from law enforcement and of supporting their battering partners, including by making false statements to the police. On appeal, Sexton challenged CALCRIM No. 850, the standard jury instruction regarding testimony by complaining witnesses in cases in which the jury also hears evidence from an expert in intimate partner battering. Sexton claimed the instruction would suggest that if jurors found the expert to be credible, they should find the witness credible too. Furthermore, Sexton argued: (1) because Arizona's robbery statute did not contain all the elements of California's, including asportation, the true finding on the alleged Arizona prior conviction had to be reversed and the five-year prior serious felony enhancement stricken; (2) the statutory dual punishment ban required the sentence on either count 3 (domestic violence) or count 4 (assault with force likely to cause great bodily injury) be stayed given that both counts were predicated on the same physical assault as part of a single course of conduct that had one objective, the infliction of physical and emotional harm on Jane. Sexton sought remand for the trial court to consider whether it should strike his prior serious felony enhancement under Senate Bill No. 1393, which the State conceded was appropriate. View "California v. Sexton" on Justia Law

Minor J.S. appealed a dispositional order adjudging him a ward of the court pursuant to Welfare and Institutions Code section 602 and placing him on formal probation, subject to various terms and conditions. At the time of the incident that led to the charges against J.S., in October 2017, the victim, John Doe, was nine years old and lived with his grandmother in Contra Costa County, California. That month, a family friend and her son and two nephews, 12-year-old J.S. and his brother R.R., were temporarily staying at Doe's home. The family friend's nephews stayed in Doe's room with him. Doe woke up and turned on the light in his room. At that time, R.R. was still sleeping and J.S. was in the bathroom getting ready for school. When J.S. returned to the bedroom, he told Doe to suck his "private part," and said that if Doe did not do it, J.S. would hurt Doe. J.S. exposed his penis and "showed" Doe what he wanted Doe to do. Doe was afraid that J.S. would hurt him, so he got on the ground and began to orally copulate J.S. Doe's grandmother discovered the pair; police were ultimately called. J.S. denied the sequence of events. On appeal, J.S. argued that certain probation conditions that permitted searches of his electronic devices and imposed limitations on his use of computers, the Internet, and social networking Web sites were unconstitutionally overbroad and should be stricken in their entirety. In the alternative, J.S. contended that the conditions at issue should have been stricken and the case remanded to allow the trial court to determine whether the conditions can be narrowly tailored to serve the state's interest in rehabilitation. Finding no abuse of discretion or other reversible error, the Court of Appeal affirmed. View "In re J.S." on Justia Law

Defendant The Irvine Company owned various retail centers in California, including the Fashion Island Shopping Center in the City of Newport Beach, and the Irvine Spectrum Center in the City of Irvine. Both centers draw a large number of visitors each year, with the former visited by more than 13 million people annually and the latter by more than 15 million annually. Plaintiffs, self-proclaimed anti-abortion activists, wished to engage in certain picketing activity at the Centers, believing the parent companies of some of the stores in the Centers “permit[] business entities under [their] corporate control to donate money to Planned Parenthood, [an] abortion provider[,]” and, thus, they desired “to conduct boycott picketing in close proximity to [them.]” The issue this case presented for the Court of Appeal's review centered on whether certain restrictions applicable to noncommercial speech and expressive activities at two large outdoor retail centers owned by defendant were constitutional under the free speech protections established in article I, section 2 of the California Constitution. The trial court concluded some of the challenged restrictions were unconstitutional and enjoined their enforcement. But it upheld restrictions on: (1) “grisly or gruesome displays;” (2) the locations in which speech and expressive conduct may occur; and (3) the use of body-worn cameras while engaging in such activities. The Court of Appeal held there was "no constitutional deficiency" in the latter two restrictions, and the trial court did not err in denying the statutory damages requested by plaintiffs pursuant to Civil Code section 52.1. "The ban on grisly or gruesome displays is a different matter: it is a content-based restriction that does not survive strict scrutiny review." So the Court reversed the portion of the judgment finding the restriction on grisly or gruesome displays constitutional, and remanded to the trial court with directions to enter an amended judgment declaring it unconstitutional and enjoining its enforcement. View "Center for Bio-Ethical Reform v. The Irvine Co." on Justia Law

Defendant Christopher Wright admitted a felony violation of Penal Code section 530.5 (c)(3), acquiring personal identifying information with intent to defraud, in relation to the possession of about 60 credit cards, driver’s licenses, gift cards and Social Security cards in the names of other people. The trial court placed defendant on probation with various terms and conditions, including that defendant submit his electronic storage devices and e-mail/Internet accounts to search without a search warrant. Defendant argued on appeal of those conditions that: (1) the electronic device search condition was invalid under California v. Lent, 15 Cal.3d 481 (1975); (2) the electronic device search condition violated his right to privacy and was overbroad; (3) the electronic device search condition violated his privilege against self-incrimination; (4) the electronic device search condition violated the California Electronic Communications Privacy Act (sec. 1546 et seq.); (5) the e-mail/Internet account search condition violated his right to privacy and his privilege against self-incrimination; (6) his counsel was ineffective in failing to object to the e-mail/Internet account search condition; (7) the urinalysis test fee was unauthorized and cannot be made a condition of probation; (8) the order granting probation must be modified to make clear that payment of the court facility fee was not a condition of probation; and (9) the criminal impact fee was unauthorized. Defendant withdrew his contention that certain probation conditions had to be modified to include a scienter requirement. The Court of Appeal modified the order granting probation to strike the urinalysis testing fee and the criminal impact fee, and to provide that the court facility fee was not imposed as a condition of probation, but instead was imposed as an order of the trial court entered at judgment. View "California v. Wright" on Justia Law

From 2013 through 2015, defendant Eliberto Jacobo, a middle-aged male, used a Facebook account with the fictional female persona of "Marlissa" to send "friend requests" to seven females under age 18, each of whom accepted Marlissa's request. Using private messages through Facebook, Marlissa encouraged each of the minors to become prostitutes. Four of them eventually agreed and Marlissa arranged for each minor to have a "date" with Jacobo in exchange for money. At those dates, Jacobo took photographs and/or videos of the minors, had vaginal intercourse with them, and performed other sexual acts with them. Following a presentation on human trafficking at high school, two of the minors reported to their teachers their Facebook communications with Marlissa. A subsequent investigation by law enforcement officers showed Jacobo had used the Marlissa persona on Facebook to communicate with the seven minors and encourage them to become prostitutes. His laptop computer contained the photographs and videos he had taken of some of them. Jacobo was arrested and charged with various sex offenses. Jacobo was found guilty on multiple human trafficking and sexual misconduct charges. The trial court sentenced him to an aggregate indeterminate term of 105 years to life in prison and a determinate term of 14 years 4 months. Upon review of Jacobo's arguments on appeal, the Court of Appeal concluded six of his sixty convictions, for sending harmful material depicting a minor engaged in sexual conduct to a minor, had to be reduced to convictions for sending harmful material to a minor. In all other respects, judgment was affirmed. View "California v. Jacobo" on Justia Law

Defendant-appellant Carl Jones was convicted of felony sodomy of an unconscious victim pursuant to Penal Code section 286(f). The trial exhibits included a video recording where Jones’s roommate recounted what she had observed to an investigator. What the roommate said was hard to discern at times, and the parties disputed whether she said she heard the victim tell Jones immediately before the incident that “‘I’m a little horny.’” Whether the victim made such a remark would bear on whether she was conscious and gave consent. On appeal, Jones argued the trial court erred by not providing the jury a version of the video’s transcript that contained the line. The Court of Appeal determined the trial court correctly informed the jury, however, that the video itself was the evidence, not any transcript purporting to indicate the contents of the video. Therefore, in the unpublished portion of its opinion, the Court rejected Jones’s contention and affirmed the conviction. View "California v. Jones" on Justia Law

The case arose from a landlord’s repeated refusal to consent to the proposed assignment of a ground lease for the anchor space in a shopping center. The plaintiffs were the entities that wished to assign the leasehold interest and the entities that agreed to take the assignment; the defendants were the landlord and its parent company. In their original and first amended complaints, plaintiffs alleged the landlord unreasonably withheld consent to the plaintiffs’ lease assignment request. While the litigation was pending, plaintiffs made an amended lease assignment request, which the landlord similarly rejected. In their second amended complaint, plaintiffs asserted the same five causes of action as before, but added allegations about the landlord’s refusal to consent to their amended assignment request. The landlord filed an anti-SLAPP motion to strike the second amended complaint, contending plaintiffs’ amended assignment request and the landlord’s response to that request were settlement communications and statements made in litigation, and therefore constituted protected activity. The trial court denied the motion, finding the landlord’s rejection of the amended assignment request was not a settlement communication or litigation-related conduct, but rather an ordinary business decision. The Court of Appeal agreed and affirmed the order denying the anti-SLAPP motion. View "ValueRock TN Prop. v. PK II Larwin Square" on Justia Law

The State sought a writ of mandate to command the trial court to honor the affidavit of prejudice (peremptory challenge) they filed against the trial court judge Joel Agron, under Code of Civil Procedure section 170.6. The underlying case was a murder prosecution which the State dismissed and refiled the same day along with the peremptory challenge. Respondent, the Superior Court of San Bernardino County, refused to honor the peremptory challenge, deeming it untimely. Relying on Birts v. Superior Court, 22 Cal.App.5th 53 (2018), the court concluded the State was engaged in prosecutorial “gamesmanship” and attempting to “forum shop[],” and held the second complaint was a continuation of the prior case, not a new case, making the peremptory challenge untimely. The State argued this case fell under Paredes v. Superior Court 77 Cal.App.4th 24 (1999), which recognized that when a criminal case was dismissed and refiled, it was a new case for purposes of Section 170.6. They argued Birts did not apply because they weren’t attempting to avoid a ruling of the trial court. The Court of Appeal agreed and therefore directed the trial court to honor the peremptory challenge. View "California v. Super. Ct. (Olivo)" on Justia Law

Defendant Brian Koback walked into a rental car company office and stole a set of car keys. When confronted by three employees in the parking lot, defendant told the men to back off or he would “f*ck” them up. He then walked across the street. Undeterred, the three employees followed defendant to a motel parking lot where they again confronted him and demanded defendant return the keys. Defendant made a tight fist around one of the key fobs, so the ignition portion of the key was sticking out between his knuckles and, from within arm’s reach, lunged at one of the employees while swiping or swinging at the employee’s torso. Defendant did not make contact. When the employees backed off, defendant jumped a fence and tried to flee. Police officers arrived and pursued defendant. Officers subdued defendant after a brief struggle, during which three of the officers suffered minor injuries. Defendant was charged with and convicted of robbery, assault with a deadly weapon, and resisting arrest. Defendant admitted he had suffered a strike conviction, and the trial court sentenced him to state prison for 14 years four months. On appeal, defendant argued: (1) his conviction for assault with a deadly weapon was not supported by substantial evidence because there was no evidence he used the car keys in a manner that was capable of inflicting and likely to cause great bodily injury; (2) the trial court abused its discretion by imposing consecutive sentences on the robbery and resisting arrest counts, under the mistaken belief it could only impose concurrent sentences if it struck defendant’s strike prior; (3) the minutes of sentencing and abstract of judgment do not accurately reflect the oral pronouncement of sentence with respect to restitution and parole revocation fines; and (4) the minutes of sentencing contain a clerical error because they state defendant admitted two strike priors instead of one. In the published portion of its opinion, the Court of Appeal affirmed defendant's conviction for assault with a deadly weapon: that was supported by substantial evidence. In the unpublished portion of its opinion, the Court concluded the trial court erred when it concluded the only way it could impose concurrent sentences on defendant’s robbery and resisting arrest convictions was if it first struck defendant’s admitted strike prior: this was remanded for resentencing. View "California v. Koback" on Justia Law