Articles Posted in California Courts of Appeal

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A jury convicted defendant-appellant, Thomas Tennard, Jr., of a nonstrike felony: inflicting corporal injury resulting in a traumatic condition upon his cohabitant girlfriend, M.L. The court found defendant had four prison priors and two prior strikes, including a 1991 conviction for forcible rape, a “super strike.” Pursuant to the Three Strikes Reform Act of 2012 ("Prop. 36," (Nov. 6, 2012)), defendant was sentenced to 25 years to life in prison for his domestic violence conviction, even though it was neither a serious nor a violent felony. Because his prior forcible rape conviction was a “super strike,” defendant was disqualified from being sentenced to a lesser term of “twice the term otherwise provided” for a domestic violence conviction. Defendant was sentenced to a consecutive one-year term for one of his four prison priors. In this appeal, defendant claimed the court had no authority to impose the 25-year-to-life term, arguing the prosecution erroneously failed to specifically “plead and prove” that his prior forcible rape conviction was a super strike which disqualified him or rendered him ineligible to be sentenced as a second strike offender to twice the term otherwise provided for his current felony conviction pursuant to Penal Code section 667(e)(1). Defendant argued the court was only authorized to sentence him to a maximum of eight years on his current conviction. In addition to his statutory claim, defendant claimed he was deprived of his due process right to notice that the prosecution would seek an indeterminate term on his current conviction. After review, the Court of Appeal remanded this matter with directions to correct the abstract of judgment to reflect that defendant’s presentence custody credits were awarded pursuant to section 4019, not section 2933.1. In all other respects, the Court affirmed the sentence. View "California v. Tennard" on Justia Law

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Deputy Tanaka responded to a dispatch telling him that a bus driver had spotted the suspect in “a 288 case” (lewd act on a child) on a San Jose bus. Tanaka was aware of the case, having seen a news video of the suspect. Tanaka boarded the bus; the driver stated that he had seen a “picture” on a police-issued “Be on the Lookout” (BOLO) flier that “matched” a passenger. The BOLO concerned a child sexual assault two days earlier and described the suspect as “WMA, Age: 30, 5’10”, 155 lbs, dark or brown shaggy hair w/beard, tan complexion” and contained three color photographs. Tanaka had never seen the flier. The driver pointed out defendant, who was asleep on a seat. Tanaka awakened defendant, identified himself, handcuffed defendant, and removed him. Defendant identified himself. Tanaka learned that defendant was on parole. Other deputies observed that, “[j]ust by the descriptors alone, [defendant] did match.” Defendant was subjected to a parole search, which turned up narcotics. About 10-15 minutes later, deputies received clear photos and determined that defendant was not the person depicted on the flier. Defendant was charged with possession of heroin The court granted defendant’s suppression motion and dismissed. The court of appeal reversed. The information provided by the driver was sufficient to reasonably justify a brief stop to determine if defendant was the suspect in the “288 case.” View "People v. Stanley" on Justia Law

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Defendant lived in a San Jose mobile home park. On September 3, 2013, the manager noticed a strong gasoline odor at her office, emitting from a metal drop box accessible to the outside through a wall slot. Liquid spilled onto the floor as she opened the box, which contained envelopes, each containing an open miniature liquor bottle, a partially burned rolled-up envelope, and matches. The manager used a towel to absorb the liquid, which she described as gasoline. She contacted the police after reviewing surveillance videos, which showed defendant approaching the box five times in various dress and placing objects in the slot, including flaming paper, then running away. A responding officer noticed an overwhelming smell of gasoline in the office. An arson investigator smelled gasoline there two days later and testified that the fire had insufficient air in the drop box. Defendant had many conflicts with management. He had complained to the district attorney and felt the office had not taken him seriously. Changing his story from his initial interview, defendant testified he decided to stage a crime to prove he was being treated unfairly but did not intend to cause harm. The court of appeal affirmed his conviction, rejecting defendant’s argument that the standard jury instruction, CALCRIM 1520, was constitutionally deficient as ambiguous and for failing to instruct on specific intent. The instruction accurately tracks Penal Code 455 and includes all elements of the offense. View "People v. Rubino" on Justia Law

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Defendant-appellant Timothy Race pled no contest to attempted lewd and lascivious acts on a child under the age of 14, the lesser included offense of the count 2 charge. Pursuant to the plea agreement, the court sentenced defendant to the upper term of four years’ imprisonment. The court limited defendant’s conduct credit award to 15 percent pursuant to Penal Code section 2933.1. The court additionally issued a 10-year criminal protective order pursuant to section 136.2(i)(1) as to both defendant’s daughter and niece. On appeal, defendant contended the court erred in issuing a criminal protective order as to his daughter, the victim described in count 1 of the information, because he did not plead to any offense with respect to her. Thus, defendant argued his daughter was not a “victim” for purposes of issuing a criminal protective order. Defendant additionally argued the court erred in limiting his award of conduct credits to 15 percent pursuant to section 2933.1. The Court of Appeal reversed and remanded for a proper custody calculation and correction of certain minute orders. In all other respects, the judgment was affirmed. View "California v. Race" on Justia Law

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Defendant Dinh Van Nguyen had a prior first degree burglary conviction which qualified as: (1) a “strike” prior; (2) a one-year prior prison term enhancement; and (3) a five-year prior serious felony conviction enhancement. The information in this case contained one paragraph alleging the fact of the prior and citing the statute that defined a strike. It also contained a second paragraph realleging the fact of the prior and citing the statute that defines a prior prison term enhancement. However, it never specifically alleged a prior serious felony conviction enhancement. Defendant admitted the fact of the prior; he did not expressly admit its legal effect. Then, at sentencing, the trial court used the prior as a strike and as a prior serious felony conviction enhancement, and defense counsel did not object. The Court of Appeal concluded the trial court erred by imposing the prior serious felony conviction enhancement. View "California v. Nguyen" on Justia Law

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In 2013, the juvenile court declared defendant-appellant, R.G. (Minor, born in April 2000), a dependent of the court. In 2016, while Minor remained a dependent of the juvenile court, the State filed a juvenile wardship petition alleging Minor had committed misdemeanor battery. After denying Minor’s request to refer the matter for a Welfare and Institutions Code section 241.12 assessment and report, Minor admitted the allegation that she had committed misdemeanor battery. The court declared Minor a ward of the court, placed her on formal probation, placed her in the custody of Children and Family Services (CFS), and scheduled the matter for a hearing pursuant to section 241.1. After subsequently receiving a section 241.1 report, the court again declared Minor a ward of the court with “CFS lead jurisdiction.” On appeal, Minor contended the juvenile court prejudicially erred by refusing to refer the matter for a section 241.1 assessment, report, and hearing prior to taking jurisdiction, resulting in violations of Minor’s statutory and due process rights. Moreover, Minor argued the subsequent section 241.1 report and hearing were statutorily inadequate. CFS countered Minor forfeited any contention the section 241.1 report was untimely or inadequate and that any error was harmless. The Court of Appeal reversed, finding the court erred by refusing to refer the matter for a section 241.1 report prior to making a determination of Minor’s status and holding the jurisdictional hearing. Furthermore, the subsequent section 241.1 report was inadequate to overcome the court’s initial error, and this error was not harmless. View "In re R.G." on Justia Law

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Optional filed suit against DAS and its counsel, Akin and Parker, for conversion and fraudulent transfer. Akin and Parker filed special anti-SLAPP motions to strike all claims asserted against them. The Court of Appeal affirmed the trial court's grant of defendants' motions, holding that Optional v. DAS Corp. (2014) 222 Cal.App.4th 1388, was not the "law of the case" for purposes of this appeal; defendants made a prima facie showing that plaintiff's claims arose from defendants' constitutionally protected petition rights where the gravamen of plaintiff's claims was protected activity, namely defendants' representation of DAS in litigation; and plaintiff did not show a probability of prevailing on its claims where the litigation privilege defeated plaintiff's claims. View "Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP" on Justia Law

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An information charged defendant Marco Sandoval with inflicting corporal injury on a spouse resulting in a traumatic condition (count 1) and making a criminal threat (count 2); defendant had suffered two prison and two strike priors. The charges arose out of a 2016 incident in which defendant punched his wife, A.H., choked her to the point of unconsciousness, and threatened to kill her if she left him. He pleaded no contest to count 1 and admitted one prison prior. The plea included a stipulated five-year upper term, suspended; three-years felony probation; and a dismissal of count 2 and all additional allegations in the information. At sentencing, over the objections of defendant and A.H., the court reissued a criminal protective order (CPO) using Judicial Council form CR-160 preventing defendant from initiating any contact whatsoever with A.H. for three years. Defendant's sole contention on appeal was that the court erred in refusing to terminate the CPO or otherwise modify it to allow some contact between him and A.H. Respondent the State agreed with defendant and requested that this case be remanded to allow the trial court to consider a more narrowly tailored protective order. The Court of Appeal affirmed the CPO with a minor modification: to allow A.H. to initiate contact, if any, with defendant that was acceptable and welcomed by her. View "California v. Sandoval" on Justia Law

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Plaintiff filed suit asserting its right to an administrative hearing to determine whether its chemicals constitute hazardous waste. The Court of Appeal reversed the trial court's denial of the divisions' anti-SLAPP motion to strike the petition and complaint. The court held that the division made a prima facie showing that plaintiff's cause of action arose from an act in furtherance of its right of free speech in connection with a public issue. In this case, plaintiff claimed that the division's decision and notice that Petromax was hazardous waste, by themselves, were causing plaintiff harm even without an enforcement action. The court also held that plaintiff failed to carry its burden of establishing a probability of prevailing on its claim. View "Santa Clara Waste Water Co. v. County of Ventura Environmental Health Division" on Justia Law

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The same standard applies to an individual defendant's request for attorney fees under the California Fair Employment and Housing Act (FEHA) as applies to an employer defendant, and thus a fee award is only available in the discretion of a trial court when the court finds that the plaintiff's claim was frivolous. In this case, the Court of Appeal affirmed the trial court's denial of defendant's motion for attorney fees because plaintiff's FEHA claim was not frivolous. The court noted that individual employee defendants who prevailed on a FEHA harassment suit were not left without a means of recovering attorney fees and costs they may have incurred to defend themselves. The court also denied defendant's request for judicial notice. View "Lopez v. Routt" on Justia Law