Filed 12/6/19 P. v. Everett CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

EDWARD ERIC EVERETT,

Defendant and Appellant.

C089051

(Super. Ct. No. 18CF07440)

Appointed counsel for defendant Edward Eric Everett asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

I

On October 24, 2018, Austin C. was in a park when he heard his car alarm sounding off. Austin went to his car and saw the rear window was broken; defendant was standing about 10 feet away. Defendant was holding a wallet that belonged to Austin’s wife. Several items belonging to Austin were on the ground near his vehicle. Defendant was under the influence of alcohol; he was detained by Austin and others until law enforcement arrived.

On December 4, 2018, defendant confronted his neighbor, Bruce J., and told Bruce he could kill him. Defendant asked Bruce if he wanted defendant to kill him. Defendant threw logs at Bruce: one log hit Bruce in the ribs and another hit Bruce’s car, breaking a window. Defendant then attempted to climb the fence separating him from Bruce. When law enforcement arrived, Bruce told them this was not the first time he had issues with defendant, whom he believed had a drinking problem. The officer believed Bruce to be genuinely afraid of defendant.

The People charged defendant with two felonies and two misdemeanors, including a felony charge for second degree burglary of a vehicle. The People subsequently agreed to reduce the vehicle burglary charge to a misdemeanor; defendant pleaded no contest to the misdemeanor burglary charge along with a charge of making criminal threats. The remaining charges were dismissed with a Harvey waiver.

The trial court subsequently sentenced defendant to the middle term of two years in state prison for making criminal threats and a concurrent one-year term on the burglary charge. The court also found defendant in violation of his probation in an unrelated matter and terminated his probation accordingly. Defendant appeals without a certificate of probable cause.

II

Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the opening brief. More than 30 days elapsed and we received no communication from defendant.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

/S/

MAURO, J.

We concur:

/S/

RAYE, P. J.

/S/

HULL, J.

Filed 12/9/19 Yue v. Atlas Resources CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

DONGXIAO YUE,

Plaintiff and Appellant,

v.

ATLAS RESOURCES, LLC,

Defendant and Respondent.

A154921

(Alameda County

Super. Ct. No. HG15768190)

Dongxiao Yue appeals from a judgment entered after he was unsuccessful on all counts of his complaint. He contends the court erred by (1) granting respondent’s motion for judgment on the pleadings as to his intentional misrepresentation claim; (2) granting respondent summary adjudication as to his unfair competition claim; (3) denying his motion for sanctions based on respondent’s purported spoliation of evidence; (4) declining to admit certain evidence at trial; (5) granting respondent’s motion for nonsuit as to his breach of fiduciary claim; and (6) allowing respondent’s counsel at trial to accuse another of its clients, who had settled with Yue before trial, of wrongdoing, so as to shift the blame away from respondent. We will affirm.

I. FACTS AND PROCEDURAL HISTORY

In April 2015, Yue sued respondent Atlas Resources, LLC (Atlas), as well as MetLife Securities, Inc. and Metropolitan Life Insurance Company (collectively, MetLife), for fraud and breach of fiduciary duty in inducing him to invest $335,000 in “Atlas Resources Series 30-2011 LP” (Series 30), a Delaware limited partnership formed for the purpose of drilling and developing oil and natural gas wells. Yue sought damages, interest, attorneys’ fees, punitive damages, and injunctive relief.

In his verified complaint, Yue alleged that he was induced to invest in Series 30 based on oral representations by Yuda Jiang—a MetLife representative—that the return on investment from Series 30 would be about 12 percent per year, and Yue could expect to recover his full investment in seven years. Yue further alleged that MetLife was his agent in the Series 30 transaction, he trusted and relied on MetLife’s representations and judgment regarding Series 30, and MetLife breached the standard of care by “failing to verify Atlas’[s] claims of return” and “the production and proven reserve data in Series 30.” In addition, Yue alleged that “Atlas” represented to him that investing in Series 30 “could bring an average return of 12%” when “it already had production and other data which would show that the return was and would be substantially lower than 12%.”

Yue thereafter filed his Verified First Amended Complaint, asserting claims against Atlas for intentional misrepresentation, fraud by concealment, and breach of fiduciary duty; a claim against Atlas and MetLife under the Unfair Competition Law (UCL; Bus. & Prof. Code, § 17200); and a new claim against MetLife for fraud. Yue alleged that, before he invested in Series 30, MetLife repeatedly represented to him that “(1) the investment in [Series 30] would generate an annual return of about 12%; (2) Atlas was a Chevron Company and thus could be trusted; [and] (3) the investment in Atlas would be safe.” Yue asserted he would not have invested in Series 30 but for MetLife’s misrepresentations.

A. Judgment on the Pleadings as to Intentional Misrepresentation Claim

In December 2016, Atlas and Metlife filed a motion for judgment on the pleadings, contending that the first amended complaint failed to allege facts sufficient to state a cause of action for (1) intentional misrepresentation, fraud by concealment, or violation of the UCL by Atlas, or (2) fraud or a UCL violation by MetLife.

In January 2017, the court granted the motion without leave to amend as to Yue’s claim against Atlas for intentional misrepresentation, removing that claim from the case. The court also granted the motion with leave to amend as to both his claim against Atlas for fraud by concealment and his fraud claim against MetLife. The court denied the motion as to the UCL claims.

B. Summary Judgment on UCL Claim; Yue’s Motion for Sanctions

Yue filed a second amended complaint in February 2017, alleging a claim against Atlas for fraud by concealment (failing to disclose “production data and proven reserve data,” which purportedly would have shown that the rate of return was going to be substantially lower than 12 percent), as well as claims against Atlas and MetLife for breach of fiduciary duty and violation of the UCL.

In February 2018, Atlas filed a motion for summary judgment or, in the alternative, summary adjudication as to each claim.

Yue thereafter took Atlas’s deposition, during which an Atlas representative explained that some documents related to the reserves that had been established for certain wells, before Yue made his investment in 2011, would have been destroyed pursuant to Atlas’s document retention policy.

In April 2018, Yue filed an opposition to Atlas’s summary judgment motion. He also filed a motion for terminating sanctions against Atlas, on the ground that Atlas had spoliated evidence—namely, the documents purportedly destroyed pursuant to its document retention policy.

The court granted Atlas summary adjudication as to Yue’s UCL claim, but otherwise denied its summary judgment motion. The court denied Yue’s motion for sanctions.

C. Yue’s Settlement with MetLife and Motion to Disqualify Atlas’s Counsel

On April 26, 2018, Yue and MetLife entered into a settlement agreement, conditioned on a good faith settlement determination for which MetLife applied.

At 5:47 on the evening of May 17, 2018, Yue e-mailed the court and Atlas’s counsel a motion to disqualify counsel for Atlas and MetLife—the law firm of Maynard Cooper & Gale PC (Maynard Cooper).

At the pretrial hearing the next day, the court approved MetLife’s Application for Good Faith Settlement and denied Yue’s motion to disqualify Maynard Cooper.

D. Nonsuit as to Breach of Fiduciary Duty; Jury Verdict on Other Claims

After Yue completed his case-in-chief, Atlas moved for a nonsuit on his claims for fraud by concealment and breach of fiduciary duty. The court granted a nonsuit as to Yue’s breach of fiduciary claim to the extent it was predicated on pre-investment conduct; the court otherwise denied Atlas’s motion.

The jury thereafter rendered a verdict for Atlas on all remaining claims—fraud by concealment and breach of fiduciary duty based on post-investment conduct. Using the special verdict form to which the parties had agreed, the jury found 11-1 that Atlas had not intentionally failed to disclose a fact Yue did not know and could not have discovered through reasonable diligence. It also found, by a 12-0 margin, that Atlas did not fail to act as a reasonably careful managing general partner would have acted under the same or similar circumstances.

The court entered judgment accordingly, and this appeal followed.

II. DISCUSSION

A. Judgment on the Pleadings as to Intentional Misrepresentation

“A judgment on the pleadings in favor of the defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action.” (People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777; Code Civ. Proc.

§ 438(c)(3)(B)(ii).) “A motion for judgment on the pleadings is equivalent to a demurrer and is governed by the same de novo standard of review. [Citation.] All properly pleaded, material facts are deemed true, but not contentions, deductions, or conclusions of fact or law.” (People ex rel. Harris, at p. 777.)

Yue’s first amended complaint alleged that Jiang—an employee of MetLife—told Yue that the return for Series 30 would be “about 12% per year.” It also alleged that, through MetLife, Yue obtained a brochure about Atlas and Series 30. In his intentional misrepresentation claim, Yue incorporated these allegations and alleged, in a conclusory manner, that “Atlas represented to Plaintiff that the investing in Series 30-2011 could bring an average return of 12%” and that this representation was false.

In granting judgment on the intentional misrepresentation claim, the court explained that Yue’s allegations “simply never refer to any Atlas representative making a representation—to [Yue], [MetLife’s] Jiang, or otherwise—as to the level of return that the investment would bring.” (Italics added.) The court denied leave to amend because, although Yue offered to allege that Vicki Burbridge was Atlas’s Regional Marketing Director, Atlas’s brochure was backed by top Atlas executives, and Atlas filed for bankruptcy in 2016, “[n]one of these proposed allegations involves an express representation by any Atlas representative as to the level of return that [Yue’s] investment would or could bring.”

The trial court did not err. “In California, fraud must be pled specifically; general and conclusory allegations do not suffice.” (Lazar v. Superior Court (1991) 12 Cal.4th 631, 645 (Lazar).) To allege a fraud claim against an entity such as Atlas, the plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157 (Tarmann); Lazar, supra, 12 Cal.4th at p. 645.) Yue did not allege who at Atlas made a representation of a 12 percent return, when the representation was made, or how it was conveyed to him. Although he alleged obtaining a “brochure” about Atlas and Series 30, he did not identify the brochure, who authored it, or any specific misrepresentation. Even Yue’s proposed amendments did not state with specificity that Atlas authored the brochure, what the brochure misrepresented, or how he reasonably relied upon any misrepresentation.

Yue contends his allegations were sufficient because he only had to “set forth in his complaint the essential facts of his case with reasonable precision and with particularity sufficiently specific to acquaint the defendant of the nature, source, and extent of his cause of action,” and “need not particularize matters presumptively within the knowledge of the demurring defendant.” (Quoting Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209.) His argument is unavailing. “[T]he policy of liberal construction of the pleadings does not apply to fraud causes of action.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 989.) And while the specificity requirement may be relaxed when the allegations indicate that the defendant has greater knowledge of the facts than the pleading party, that rule does not apply where a defendant employer has no more reason to know than the plaintiff which of its employees purportedly made the mispresentation. (Tarmann, supra, 2 Cal.App.4th at p. 158.) Here, Yue’s first amended complaint did not identify what employee purportedly promised a 12 percent return, and although there may be a finite number of Atlas employees who could have made a misrepresentation in the brochure, Yue does not identify any statement in the brochure that misrepresented a 12 percent return.

Yue also tells us that Atlas’s private placement memorandum (PPM) stated: “The partnership is structured to provide you and the other investors with cumulative cash distributions, including all distributions from operations to you and the other investors before the first 12-month subordination period begins, based on a subscription price of $20,000 per unit regardless of the actual subscription price you paid for your units, equal to at least 12% of capital (which is $2,400 per $20,000 unit) in the first 12-month subordination period, 10% of capital (which is $2,000 per $20,000 unit) in each of the next three 12-month subordination periods, and 8% of capital (which is $1,600 per $20,000 unit) in the fifth 12-month subordination period.”

However, Yue did not allege the PPM’s representations in his first amended complaint. And even if he had leave to add them to his pleading, the passage he cites did not represent that Yue “could bring an average return of 12%” (as alleged in paragraph 27 of the first amended complaint) during the cumulative subordination period or annually throughout the investment: to the contrary, the average of the stated returns (12%, 10%, 10%, 10%, and 8%) is less than 12 percent. Moreover, the PPM explicitly warned that “even with subordination your cash flow may be very small and you may not receive the return of capital described above during the . . . subordination period.” (Italics added.)

Finally, Yue argues that amendments to pleadings should be liberally allowed, and if he had been given leave to amend, “he could have added detailed facts such as the representations in the Atlas sales materials and by Atlas persons.” But Yue still fails to state precisely what facts he would allege or how they would cure the defects in his pleading. The court did not err in dismissing Yue’s intentional misrepresentation claim without leave to amend.

B. Summary Judgment on UCL Claim

Atlas moved for summary judgment or adjudication on Yue’s UCL claim, contending that an award of monetary damages, as sought by his claims for breach of fiduciary duty and fraud, would provide Yue with an adequate remedy at law. (See Prudential Home Mortgage Co. v. Superior Court (1998) 66 Cal.App.4th 1236, 1249 [to obtain equitable relief, plaintiff must establish there is no adequate remedy at law]; Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144 [relief under UCL is generally limited to equitable remedies of injunction and restitution].) In granting Atlas’s motion, the court observed that Yue had failed to oppose Atlas’s argument, “rendering his claims for relief under Business and Professions Code section 17200 superfluous.”

Yue contends the court erred because he sought injunctive and equitable relief in his first amended complaint and, in his opposition to the summary judgment motion, said he “has no adequate remedy at law to compel [Atlas] to cease their wrongful acts, and therefore seeks injunctive relief and remedies in equity.” However, Yue did not allege facts to support this conclusion or present evidence that a damage award would not suffice.

Yue now acknowledges that a damage award might compensate him for his losses, but he urges that this amount would not adequately protect the general public from Atlas’s unlawful conduct, and that he was actually seeking public injunctive relief to prevent Atlas from defrauding other investors.

Yue’s argument is unavailing. Neither Yue nor his pleading informed the trial court that he was seeking public injunctive relief. (Aleksick v. 7-Eleven, Inc. (2012) 205 Cal.App.4th 1176, 1185–1186 [affirming summary judgment on UCL claim where plaintiff cited the statute purportedly underlying her claim “for the first time on appeal”].) Moreover, the second amended complaint did not allege the factual predicate for public injunctive relief—that Atlas was continuing to engage in fraudulent, unlawful, or unfair conduct impacting other investors or the general public. Nor did he allege facts or submit evidence showing that the stated fraud—misrepresenting the potential return or concealing production or reserves for the Series 30-2011 wells—was continuing as of the time of the summary judgment proceeding in 2018.

The court did not err in dismissing Yue’s UCL claim.

C. Yue’s Motion for Sanctions Due to Spoliation

Based on a theory that Atlas intentionally destroyed “detailed documents supporting the reserve values of the Series 30 wells” before or as of the time of his November 2011 investment, Yue insists the court erred in denying his motion for terminating sanctions or issue sanctions. We disagree.

1. Background

In August 2015, Yue served Atlas with requests for documents such as Atlas’s communications regarding Series 30, as well as all documents relating to the production volumes of Series 30, the financial value of Series 30, and Series 30 reserves.

Atlas produced thousands of pages of documents, but no detailed documents supporting the reserve values of the Series 30 wells. Atlas’s attorneys allegedly told Yue that reserve-related information was contained in a software system called “OGRE.”

In response to Yue’s further discovery requests in April 2016, Atlas continued to assert that proved reserve calculations were performed with the OGRE software and Atlas did not know of any responsive documents. In an interrogatory response, Atlas stated: “The ATLAS 2011 PROVED RESERVE NUMBERS were calculated by inputting raw data into software developed and licensed by Oil and Gas Reserve Evaluation Systems, Inc. (“OGRE”). Atlas is not aware of any DOCUMENTS containing ‘calculations’ related to the ATLAS 2011 PROVED RESERVE NUMBERS, other than the ‘Reserves and Economics’ report (bates labeled ATL000598).” The Reserves and Economics report was a one-page document without information as to individual wells; however, Atlas’s interrogatory response further explained that the report “is the summary report produced by OGRE/Wright & Co. and relied on by Atlas when drafting 2011 NOTE 9.” (Italics added.)

Atlas made clear elsewhere that the reserve calculations were prepared by or with the assistance of Wright & Company, Inc. Its April 2016 response to Yue’s Special Interrogatory No. 3 stated that the proved reserve calculation in the 2011 Annual Report “was generated by a number of independent, third-party reserve engineers and support staff employed by Wright & Company Inc.,” providing the company’s address, phone number, and fax number.

Atlas later produced to Yue a spreadsheet listing the proved reserve value of each of the 115 wells as of December 31, 2011. Each row of the spreadsheet provided the summary reserve information for a particular well, totaling $14,392,300. After Yue sought discovery of documents supporting each individual well’s value, Atlas produced an email dated October 17, 2011, with an attachment setting forth details for certain wells.

In February 2017, Yue took Atlas’s deposition. Atlas’s first representative, Trevor Mallernee, confirmed that Atlas contracted Wright & Company, Inc. (Wright) to perform a reserve analysis for Series 30. According to Mallernee, Atlas uploaded data files to a shared site, notified Wright to download the files, and communicated with Wright by phone and email.

Atlas’s second representative for deposition, Mike Downs (Atlas’s vice-president of operations), testified that Atlas received emails from Wright regarding the wells, with attachments like the one accompanying the October 17, 2011 email. Downs testified that such emails were provided to Yue in discovery to the extent they were still available, but Atlas would no longer have other such documents because of Atlas’s two-year email retention policy. Under that policy, Downs explained, documents on the e-mail server were “wiped” (destroyed) after two years, and he did not believe Atlas had a back-up for the email server for the period. (Atlas’s counsel later confirmed that no backup existed, and the data files Atlas shared with Wright were no longer available.)

In April 2018, Yue filed a motion for sanctions against Atlas for spoliation of evidence, claiming that Atlas destroyed documents that would have provided material information. Specifically, Yue claimed, emails and attachments predating Yue’s November 2011 decision to invest in Series 30 would have shown what Atlas then knew about production levels and reserves for the individual wells included in Series 30. Yue sought terminating sanctions or, in the alternative, “an adverse inference ruling against Atlas to hold that Atlas knew that the proved reserve of Series 30 was only $14 million prior to Plaintiff’s investing in Series 30.”

Atlas opposed the motion and provided a declaration from its Director of Information Technologies, Richard T. Norton, attaching Atlas’s Electronic Email Retention Policy (EERP) as an exhibit. The EERP document was dated December 15, 2015 and had a revision date of January 1, 2016, but stated that the retention policy was instituted on July 31, 2014. As averred in Norton’s Declaration and stated in the EERP, emails three years or older were to be automatically purged on a rolling basis between August 1, 2014 and December 31, 2014, and emails two years or older were to be automatically purged on a rolling basis beginning January 1, 2015.

The court denied Yue’s sanctions motion, finding that Yue presented “no evidence that, when Atlas instituted this policy in August 2014, it was motivated to do so by a threat to sue that Plaintiff had made in a letter from April 2013 on which he does not contend that he had followed up in any way of which Atlas was aware in the ensuing 15 months (a letter, moreover, written by a disgruntled individual investor on his own behalf, and not by litigation counsel retained by such an investor in anticipation of an imminent lawsuit).”

2. Law

Destroying evidence in response to a discovery request after litigation has commenced is a violation of the Discovery Act. There is no indication here, however, that Atlas destroyed any responsive Series 30 documents after litigation began in April 2015, let alone after an inspection demand was served in August 2015.

Destruction of evidence in anticipation of a discovery request may also constitute a misuse of the discovery process or otherwise give rise to sanctions. (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223 (Williams) [spoliation includes the destruction of evidence or failure to preserve evidence in pending or future litigation]; Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681 (Reeves) [spoliation includes the destruction of evidence in pending or reasonably foreseeable litigation].) We therefore consider whether Atlas destroyed emails and attachments pertaining to Series 30 reserves in anticipation of a discovery request in future litigation and, if so, what sanctions might be appropriate. We review the trial court’s ruling for an abuse of discretion. (Williams, supra, 167 Cal.App.4th at p. 1224.)

3. Obligation to Preserve the Documents

The threshold inquiry is whether, at the time Atlas purportedly destroyed the documents pursuant to its document-retention policy, it had the obligation to preserve them. (Reeves, supra, 186 Cal.App.4th at p. 681.) That obligation arises if litigation was pending or reasonably foreseeable. (Ibid.)

Atlas began implementing its document retention policy in August 2014, and by January 2015 would have destroyed any emails dated January 2013 or earlier; by January 2015 at the latest, therefore, emails and attachments related to the Series 30 production and reserves before Yue’s November 2011 investment would have been destroyed.

Substantial evidence supports the court’s conclusion that Atlas had no obligation to preserve the documents as of the time it instituted its retention policy in August 2014, let alone by the time the documents were destroyed in or around January 2015. Yue had not filed his lawsuit by those dates, and the evidence does not suggest that Yue’s lawsuit was reasonably foreseeable.

In this regard, Yue argues that assuming the retention policy was established in August 2014, it was instituted after he accused Atlas of fraud in November 2012, after he sent Atlas a letter accusing it of nondisclosure of production data and proven reserve data in March 2013, after Atlas’s chief legal officer responded to his letter, and after Yue told Atlas that its nondisclosure would be the basis of a lawsuit.

Yue’s purported November 2012 accusation of fraud was an email he sent to Jiang at MetLife and Rebecca Hood at Atlas, in which he complained about his monthly return but stated he did not “want to make open accusations right now.” Yue’s March 2013 letter to Hood requested the return of his investment on the ground it was induced by misrepresentation or non-disclosure of material facts, including production data and proven reserve data, and noted the “advertised 12% per annum return for seven years.” In April 2013, Atlas declined to return his investment but replied to Yue’s concerns, drawing Yue’s attention to the PPM and noting that Atlas did not provide investment advice, the subscription agreement that Yue signed had disclosed the investment’s high degree of risk, the partnership did not advertise a 12 percent per annum return, and the managing general partner’s subordination was not a guarantee of Yue’s return. In April 2013, Yue wrote to Atlas, stating that Atlas’s letter had not explained the “non-disclosure of the available production data,” and “[s]uch material non-disclosure will be the [basis] of a fraud action against [your] company and affiliates in a court of law.” As the trial court observed, however, this letter was not sent by counsel. And after sending this letter in April 2013, Yue did not follow up with Atlas or take any legal action during the 16 months between his letter and Atlas’s implementation of the email destruction policy.

From this evidence, it was reasonable for the court to conclude that Atlas had not enacted its August 2014 retention policy for the purpose of destroying emails germane to Yue’s case. After all, the initial retention period was three years—meaning emails dating back to August 2011 were not initially purged as part of the EERP; that would make no sense if Atlas had wanted to destroy the evidence relating to Yue’s threatened claims.

Moreover, the record supports the court’s conclusion that Yue’s April 2013 letter did not obligate Atlas to preserve potential evidence relating to Series 30 as of the time any responsive documents were actually destroyed. By January 2015, 20 months had passed since Yue’s April 2013 threat to file a lawsuit, and most claims based on 2011 representations would have been time-barred. Under those circumstances, Yue’s April 2015 lawsuit was not reasonably foreseeable when the documents were purportedly destroyed in January 2015.

4. No Basis for Terminating Sanction

Even if Yue had established spoliation, he failed to establish entitlement to a terminating sanction. A terminating sanction is generally available under the Discovery Act only if the destruction (non-production) of documents is in violation of a court order. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1423–1424 (New Albertsons).) Otherwise, terminating sanctions may be imposed only in egregious cases of intentional spoliation or where it is reasonably clear a party would violate a production order. (Id. at pp. 1424–1426; Williams, supra, 167 Cal.App.4th at p. 1223.) Here, Yue never obtained an order compelling Atlas to produce the e-mails, and there was no indication that Atlas was refusing to comply with the court’s orders. The question is therefore whether Atlas perpetrated an egregious case of intentional spoliation.

Ample evidence supported the conclusion that the purported destruction of emails and attachments was not sufficiently egregious to justify terminating sanctions. In the first place, the destruction of the documents was performed pursuant to a document retention policy in the ordinary course of business. Moreover, Atlas’s discovery responses pointed to Wright as a potential alternative source of the documents Yue sought, but Yue never pursued Wright for the documents. Atlas’s 2011 Annual Report, which Yue received in the spring of 2012, notified him that Series 30 “retained Wright & Company . . . to prepare a report of proved reserves” for the period ending December 31, 2011. Atlas’s April 2016 response to special interrogatories informed Yue that the proved reserve calculation in the annual report was generated by Wright employees, told Yue that the summary report was produced by Wright, and gave Yue Wright’s contact information. In Atlas’s deposition in February 2018, Mallernee confirmed that Atlas contracted Wright to perform reserve analysis for Series 30. Even with all this information, and receiving the EERP two months before the close of discovery, Yue did not seek discovery from Wright.

Yue contends terminating sanctions would have been proper as they were in Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967. There, the defendant’s flagrant discovery misconduct included failing to produce relevant and responsive evidence despite repeated court orders, to the severe prejudice of the opposing party, and lesser sanctions had not deterred the defendant’s antics. (Id. at pp. 993–996.) Those circumstances are not present here.

5. Yue Received an Adverse Inference Instruction

Aside from remedies under the Discovery Act, evidence of spoliation may warrant an instruction that the jury may draw an adverse inference from the intentional destruction of documents. CACI No. 204 informs the jury: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.”

Despite Yue’s failure to prove spoliation, he still received the benefit of the CACI No. 204 instruction.

After the court denied Yue’s sanctions motion, Yue proceeded to trial on the continued theory that Atlas intentionally destroyed reserve and production data related to Series 30 wells. Yue proposed jury instructions on Willful Spoliation of Evidence (CACI No. 204) and Failure to Explain or Deny Evidence (CACI No. 205). The court revised CACI No. 204, without objection from Yue, and instructed the jury as follows: “Mr. Yue contends that Atlas Resources intentionally concealed or destroyed e-mails in order to make them unavailable for use in this litigation. [¶] Atlas Resources contends that if any e-mails were unavailable in this litigation, it is because they had been discarded in the ordinary course of business pursuant to its e-mail retention policy. [¶] If you decide that Atlas Resources intentionally concealed or destroyed e-mails in order to make them unavailable for use in this litigation, you may decide that the e-mails would have been unfavorable to Atlas Resources. [¶] However, if you decide Atlas Resources merely discarded e-mails in the ordinary course of business pursuant to its e-mail retention policy, then you may not draw any inference from that fact as to whether the e-mails would have been unfavorable to Atlas Resources.” The court also instructed the jury pursuant to CACI No. 205, as Yue requested. In light of these jury instructions, Yue fails to establish prejudice from Atlas’s purported spoliation of evidence.

D. Exclusion of EERP Document

After the parties had each rested their cases, Yue asked the court to admit Atlas’s EERP document into evidence. The court denied his request. Yue contends this was error, claiming he had no chance to introduce the EERP document through Atlas because Atlas decided not to call its president as a witness, and other Atlas witnesses were beyond the court’s subpoena power.

Yue fails to establish an abuse of discretion. He does not demonstrate that he laid a proper foundation for admission of the EERP document—let alone move it into evidence—before the parties had rested their case. Nor does he establish that he needed testimony from Atlas employees to lay that foundation. And finally, he does not explain how the exclusion of the EERP document was prejudicial, in light of his opportunity to present other evidence and argument to the jury about Atlas’s email retention policy and destruction of documents.

E. Nonsuit as to Yue’s Claim for Breach of a Pre-Investment Fiduciary Duty

A nonsuit is proper where the plaintiff failed to present substantial evidence from which a jury might reasonably find in the plaintiff’s favor. (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 (Nally).) In making this determination, the court accepts as true the evidence most favorable to the plaintiff and disregards any conflicting evidence. (Ibid.)

After Yue rested his case, Atlas moved for nonsuit on his fiduciary duty claim, contending he failed to introduce sufficient evidence that Atlas owed him a fiduciary duty before he invested in Series 30, what that duty was, or how Atlas breached it. In response, Yue argued that Atlas owed him a pre-investment fiduciary duty because it was the “promoter” of the Series 30 partnership, relying on a statement in Eisenbaum v. Western Energy Resources, Inc. (1990) 218 Cal.App.3d 314, 321 (Eisenbaum) that a “promoter or insider or seller of a limited partnership interest owes a fiduciary duty to the prospective purchaser of such interest.” The court granted Atlas’s motion for nonsuit on “the breach of fiduciary duty cause of action” to the extent it was premised on a “pre-investment obligation.” The record supports the court’s ruling.

1. Fiduciary Duty

A claim for breach of fiduciary duty cannot survive unless, of course, the defendant owed a fiduciary duty to the plaintiff. Here, Yue argues that Atlas owed a pre-investment fiduciary duty to Yue under Eisenbaum as a prospective purchaser of Series 30 interests, because Atlas was the Series 30’s promoter in that it founded and organized the Series 30 partnership and was its managing general partner.

Yue’s argument is unavailing. In the first place, he fails to support his argument with record citations for his factual assertions. On that basis, his argument is waived.

In addition, Yue fails to demonstrate that Eisenbaum applies to the matter at hand. The court in Eisenbaum addressed whether the holding in Sherman v. Lloyd (1986) 181 Cal.App.3d 693 (Sherman) delayed the accrual of the plaintiff’s statutory cause of action for rescission. (Eisenbaum, supra, 218 Cal.App.3d at pp. 322–324.) Assuming that delayed accrual required a fiduciary duty between the plaintiff (prospective buyer) and the defendant (promoter of the partnership, who made the misrepresentations), the court examined whether the facts in that case warranted a finding of a fiduciary relationship. (Id. at p. 321.) In concluding the evidence was sufficient, the court noted that “[a] promoter or insider, or a seller of a limited partnership interest, owes a fiduciary duty to the prospective purchaser of such an interest.” (Id. at p. 322.)

Yue, however, did not introduce evidence from which the jury could reasonably conclude that Atlas was a promoter of the Series 30 partnership, such that a fiduciary duty arose. Although in Eisenbaum the managing general partner of the partnership was found to be a promoter under the facts of that case, Eisenbaum did not hold that all managing general partners are necessarily promoters. Indeed, the facts in Eisenbaum are distinctly different from the facts here. In Eisenbaum, the president of the managing general partner had directly solicited the plaintiff to invest in the partnership in several telephone conversations. (Eisenbaum, supra, 218 Cal.App.3d at p. 319.) But here, Yue learned about Series 30 not from Atlas, but from his friend and long-time investment advisor—Jiang—who was affiliated with MetLife and was not an Atlas corporate insider. Before investing in Series 30, Yue and Jiang had several conversations and exchanged

e-mails about the Series 30 investment opportunity. Yue admittedly relied upon Jiang’s (and MetLife’s) recommendation to invest in Series 30 and Jiang’s alleged representations regarding the Series 30 returns in deciding to invest in Series 30. Yue never spoke to any officer, director, employee, or any “insider” at Atlas before investing in Series 30; he asked no questions of Atlas before investing in Series 30; and he requested no production or “proved reserve” information from Atlas before investing in Series 30. As the trial court observed, MetLife, not Atlas, was the promoter of Series 30.

In his appeal, Yue now relies on the following definition of “promoter” in Black’s Law Dictionary: “A founder or organizer of a corporation or business venture; one who takes the entrepreneurial initiative in founding or organizing a business or enterprise . . . .” (Citing Black’s Law Dict. (9th ed. 2009) p.1333).) He also tells us that the word “promoter” in securities law is defined to include “[a]ny person who, acting alone or in conjunction with one or more other persons, directly or indirectly takes initiative in founding and organizing the business or enterprise of an issuer.” (17 C.F.R. § 230.405.) However, Yue did not make this argument to the trial court in opposition to the nonsuit motion. He cannot establish that the court erred based on an argument he never made.

Because Yue failed to present evidence that Atlas was a promoter, he failed to establish that Atlas owed him a fiduciary duty under Eisenbaum.

2. Scope of Fiduciary Duty

Even if Atlas owed Yue a pre-investment fiduciary duty, Yue failed to offer evidence or argument that the scope of this duty encompassed the disclosure of reserve data or production data. Neither Eisenbaum nor Sherman held that a promoter had a fiduciary duty to disclose specific “proved reserve” or production data to prospective investors. Yue did not present evidence showing how managing general partners (or promoters) in the oil and gas exploration industry acted or would have acted under the same or similar circumstances. He presented no evidence of how Atlas acted under the same or similar circumstances regarding prior or subsequent oil and gas partnerships. And he presented no expert witness testimony regarding the nature or scope of Atlas’s alleged duty to disclose to prospective investors either preliminary production volumes or proved reserves, when Atlas would have to disclose that information, why the information would be material, or how the disclosure should have been made.

3. Breach

Because Yue failed to demonstrate the scope of Atlas’s duty, he necessarily failed to demonstrate that such a duty was breached. Moreover, even if Atlas had a duty to disclose proved reserve and production data, Yue failed to produce evidence that Atlas had such information yet failed to disclose it.

In fact, Yue’s “pre-investment” breach of fiduciary duty claim rested on the same purported misconduct underlying his fraud by concealment claim. Because the jury found on his concealment claim that Atlas had not intentionally failed to disclose a fact Yue did not know and could not have discovered through reasonable diligence, Yue fails to demonstrate how he would have prevailed on his breach of fiduciary duty claim.

F. Yue’s Motion to Disqualify Atlas’s Attorneys

Both Atlas and MetLife were represented in this litigation by Maynard Cooper. After MetLife had entered into a settlement with Yue and a good faith settlement motion was pending, Maynard Cooper served a motion in limine on Atlas’s behalf, indicating an intent to use a MetLife confidential internal disciplinary letter against Jiang at trial. Maynard Cooper also proposed, on Atlas’s behalf, jury instructions to the effect that Atlas was not responsible for Yue’s harm because of the misconduct of MetLife or Jiang. Yue sought an order disqualifying Maynard Cooper from the case or, alternatively, prohibiting Maynard Cooper from acting adversely to MetLife and Jiang. After a hearing, the court denied Yue’s motion on the ground that he lacked standing to challenge the representation, Maynard Cooper had no conflict of interest cross-examining Jiang because it never represented him in his individual capacity, and MetLife was not exposed to liability because the court had granted MetLife’s motion for a good faith settlement determination.

We review an order denying a disqualification motion for an abuse of discretion. (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 585.)

1. Lack of Standing

Before seeking disqualification of another party’s attorney, the moving party must establish standing—the invasion of a legally cognizable interest. (Great Lakes Construction, Inc. v. Burman (2010) 186 Cal.App.4th 1347, 1356–1357 (Burman).) Typically, the moving party satisfies this obligation by showing a current or prior attorney-client relationship with the attorney targeted for disqualification. (e.g., Dino v. Pelayo (2006) 145 Cal.App.4th 347, 352 (Dino).) Outside of the attorney-client relationship, standing may be present if the attorney whose disqualification is sought owes the moving party a duty of confidentiality and the disqualification motion is based on an actual or potential disclosure of confidential information. (DCH Health Services Corp. v. Waite (2002) 95 Cal.App.4th 829, 832 (DCH); Dino, supra, 145 Cal.App.4th at p. 353.) In this regard, however, “a lawyer owes no general duty of confidentiality to nonclients.” (DCH, supra, at p. 832.) More broadly, a nonclient may have standing to bring a disqualification motion based on the attorney’s ethical violation, if the violation is manifest, glaring, and impacts the moving party’s interest in a just and lawful determination of his or her claims. (Burman, supra, 186 Cal.App.4th at p. 1357.)

Yue’s motion to disqualify Atlas’s attorneys did not allege any attorney-client, confidential, or fiduciary relationship between Yue and Maynard Cooper. Instead, he based his motion on duties of loyalty and confidentiality Maynard Cooper purportedly owed to MetLife or Jiang. And as discussed post, he failed to establish that Maynard Cooper perpetrated a manifest and glaring breach of those duties that threatened to deprive Yue of a fair trial. The court correctly concluded that Yue lacked standing.

Yue points us to Kevlik v. Goldstein (1st Cir. 1984) 724 F.2d 844, in which the court held that a party has standing to disqualify opposing counsel because “[t]he Model Code of Professional Responsibility, DR 1-103(A) clearly requires that an attorney come forward if he has knowledge of an actual or potential violation of a Disciplinary Rule.” (Id. at p. 847.) Here in California, however, the California Rules of Professional Conduct do not require an attorney to report another attorney’s misconduct.

In his reply brief, Yue argues that he has standing based on Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1204. There, in a child custody dispute between a mother and father, the court granted the mother’s motion to disqualify the child’s paternal grandfather from representing the child’s father. The mother had standing even though she had not been a client of the grandfather’s law firm, because the attorney’s continued representation threatened an opposing litigant with cognizable injury and could undermine the integrity of the judicial process. (Id. at p. 1205.) Specifically, disqualification was appropriate because (1) the paternal grandfather might have acquired confidential facts about the mother and her family’s situation, since his firm had represented the maternal grandfather in his own custody dispute, in which the mother had filed a declaration; and (2) the paternal grandfather would be a percipient witness in the dispute. (Id. at pp. 1205–1211.) Here, Yue does not show that confidential facts were acquired about Yue or that Maynard Cooper was going to be a material witness.

Yue also argues he has standing because “defense counsel was about to betray MetLife and Jiang to exonerate Atlas,” so Yue was going to be “deprived of a fair trial.” He does not explain how the trial was going to be unfair, and there is no indication that it was. Although Maynard Cooper impeached Jiang at trial with the confidential warning letter from MetLife, Yue was aware of the letter, since MetLife had produced it to Yue in discovery, and Yue marked it as an exhibit to his deposition of MetLife. Maynard Cooper’s use of the disciplinary letter did not disclose any attorney-client communications and was consistent with the court’s protective order regarding the use of documents produced in discovery.

Yue complains that Atlas’s attorney elicited from him on cross-examination that he previously accused MetLife of wrongdoing based on confidential information provided in discovery. However, the questions were in line with the court’s rulings about Atlas’s use of Yue’s verified pleadings and sworn declarations. Yue also argues that Maynard Cooper assigned blame in closing argument to MetLife and Jiang, convinced the court to instruct the jury that it could find Yue “was harmed by Yuda Jiang and/or MetLife’s breach of fiduciary duty to use reasonable care,” obtained a jury instruction that Atlas claimed “the negligence of Yuda Jiang and/or MetLife contributed to Mr. Yue’s harm,” and included three special interrogatories in the verdict form asking whether liability should be assigned to MetLife and Jiang. Yue, however, did not object to the court’s proposed special verdict form. Moreover, none of these things prejudiced Yue, since the jury did not apportion responsibility to MetLife or Jiang.

2. No Proven Ethical Violation or Basis for Disqualification

Yue does not identify any specific ethical rule that Maynard Cooper violated. Nor did Yue produce any evidence that Maynard Cooper represented Jiang in his individual capacity. Although Maynard Cooper did represent MetLife in this litigation, Yue did not present any evidence that Maynard Cooper failed to comply with the applicable ethical rules, such as, for example, obtaining MetLife’s informed written consent. As the trial court observed, Yue was not privy to the communications between Maynard Cooper, MetLife, and Atlas, and conflict waivers “happen[] all the time” in the context of joint representation. Indeed, Yue’s co-counsel assumed Maynard Cooper had obtained conflicts waivers from Atlas and MetLife.

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

SIMONS, J.

Yue v. Atlas Resources / A154921

Filed 12/9/19 Hanson v. Aguirre CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

IRENE HANSON,

Plaintiff and Appellant,

v.

AL AGUIRRE,

Defendant and Respondent.

B296734

(Los Angeles County

Super. Ct. No. KC068764)

APPEAL from an order of the Superior Court of Los Angeles County, Peter A. Hernandez, Judge. Reversed.

Peter Borenstein for Plaintiff and Appellant.

Luis E. Lopez for Defendant and Respondent.

_________________________

Appellant Irene Hanson appeals the trial court’s order granting respondent Al Aguirre’s motion to vacate the judgment in favor of Hanson. Aguirre’s motion, brought under Code of Civil Procedure section 473, subdivision (b), was based on a claim of excusable neglect in failing to oppose Hanson’s motion for summary judgment, which Aguirre claimed he never received. Hanson contends the trial court abused its discretion in granting Aguirre’s motion for relief because: (1) Aguirre failed to present substantial evidence of his diligence in seeking relief; (2) he presented no admissible evidence of his excusable neglect; and (3) he did not attach his proposed pleading as required by the statute. We conclude the trial court abused its discretion in finding Aguirre acted diligently in seeking relief despite Aguirre’s unexplained five-month delay in bringing the motion following notice of entry of judgment. Thus, we reverse the trial court’s order granting the motion to vacate the judgment, without reaching the other issues raised on appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On September 29, 2016, Hanson filed a civil action in Los Angeles Superior Court against Aguirre alleging causes of action for breach of contract, intentional misrepresentation, negligent misrepresentation, and breach of the covenant of good faith and fair dealing. Hanson alleged Aguirre had failed to perform under a January 2014 oral agreement which provided that Aguirre would draft city-approved blueprints for a property in Pomona that Hanson sought to restore. Hanson paid Aguirre $3,500 in advance for this work.

Aguirre was personally served with the summons and complaint at his business address on Kansas Avenue in Riverside. Proceeding in propria persona, Aguirre filed an answer, generally denying the claims. Over the course of two years, Hanson served documents pertaining to the litigation to Aguirre’s Kansas Avenue address. Aguirre was sanctioned three times for failing to respond to discovery requests.

On June 1, 2018, Hanson filed a motion for summary judgment (MSJ). The proof of service indicated service was by mail addressed to Aguirre’s Kansas Avenue address. Aguirre did not file an opposition to the motion. At the August 20, 2018 hearing on the MSJ, the court granted Hanson’s unopposed motion. The order granting summary judgment, signed by the court, stated that “judgment is entered” in favor of Hanson, and ordered that Aguirre pay $49,600 in damages to Hanson. The next day, a copy of the order was served by mail to Aguirre’s Kansas Avenue address. Aguirre acknowledges receiving a copy of the signed order entering judgment against him.

Nearly five months later, on January 10, 2019, Aguirre filed a motion to vacate the judgment through his newly hired counsel. Aguirre argued that the court should grant him discretionary relief under section 473, subdivision (b) based on his “excusable neglect and surprise.” Aguirre attached two declarations, not sworn under penalty of perjury, in support of his motion. Aguirre’s declaration asserted that he never received the pleadings filed in connection with the MSJ, and the first time he learned about the MSJ was when he received the order granting summary judgment. He also declared there was a criminal case in Riverside “against an individual who stole checks payable to [Aguirre’s] business from the mail,” the mailboxes were pried open on several occasions, and “mail ha[d] been stolen from various tenants.” The second declaration, by Aguirre’s bookkeeper, Alicia Burk, declared there had been “[o]ngoing” issues with mail theft at the Kansas Avenue address by “persons who pried open or otherwise gained access” to the mailboxes, and fellow tenants had reported they suspected their mail had been stolen over the last few months. In addition, Aguirre’s counsel submitted an “affidavit of merits” disputing each of Hanson’s underlying claims.

Hanson opposed the motion to vacate the judgment. She argued that Aguirre’s motion was procedurally deficient because there was no attached opposition to the MSJ, which violated the requirement of section 473, subdivision (b) that the proposed pleading be attached to the motion to vacate the judgment. Hanson also argued that Aguirre had failed to meet his evidentiary burden of showing excusable neglect because the supporting declarations were “vague, not credible, and obviously self-serving.” Because Aguirre had previously ignored other documents mailed to his Kansas Avenue address, such as the discovery requests Hanson had served, Hanson contended Aguirre’s claim of mail theft was not credible. Hanson also argued that Aguirre was not diligent in seeking relief from the judgment because he had waited five months after being served with a copy of the signed order granting the MSJ to file his motion.

The declaration of Peter Borenstein, Hanson’s counsel, supporting the opposition to the motion to vacate the judgment asserted the following facts: On September 5, 2018, two months after the court granted summary judgment, Borenstein mailed Aguirre a letter notifying him of the judgment and offering the possibility of a payment plan to satisfy the judgment. Aguirre did not respond. On October 9, Borenstein filed an Application and Order for Appearance and Examination setting a date for a debtor’s examination, which he served on Aguirre. On November 12, Borenstein applied for an abstract of judgment against Aguirre, which the clerk issued on November 20. On November 19, Borenstein conducted the debtor’s examination of Aguirre, and Borenstein offered to wait until January 2019 to begin enforcing the judgment. Aguirre never reported suspicions of mail theft or indicated that he had not received the MSJ. On December 3, 2018, Borenstein filed a judgment lien against Aguirre with the California Secretary of State. On December 13, he recorded the abstract of judgment. Finally, on January 7, 2019, Borenstein filed and served a Memorandum of Costs After Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest.

Following the March 13, 2019 hearing on Aguirre’s motion to vacate the judgment, the court granted Aguirre’s motion. The court found Aguirre was not dilatory in seeking relief because he timely filed the motion within the six-month statutory window, noting: “Summary judgment was granted on August 20, 2018 and the motion was filed five months later on January 10, 2019.” The court also found that despite the requirement in section 473, subdivision (b) that a copy of the answer or other pleading proposed to be filed be attached to the motion, which Aguirre failed to do, “ ‘[t]he plain object of the provision [requiring a copy of the answer or other pleading] was simply to require the delinquent party . . . to show his good faith and readiness.’ [Citation.] As a result, the Court finds that defendant’s motion, along with his declaration, requesting an opportunity to respond to the summary judgment motion by the Court’s timeline will not delay the proceeding anymore than necessary. [¶] Further, plaintiff has not shown that she will suffer any prejudice or that injustice will result from a trial on the merits. [Citation.]” The court ruled that Aguirre had “demonstrated excusable neglect or mistake” in failing to oppose the MSJ and ordered Aguirre to file his opposition to the MSJ within 20 days. Aguirre complied.

Hanson timely appealed the order granting the motion to vacate the judgment.

DISCUSSION

Hanson seeks reversal of the order granting Aguirre relief under section 473, subdivision (b). She contends the trial court abused its discretion by granting Aguirre relief from summary judgment because Aguirre waited almost five months to file his motion to vacate the judgment, without any explanation for the delay. We agree.

I. Section 473 and Standard of Review

Section 473, subdivision (b) invokes the trial court’s power to grant a party discretionary relief “from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b).) The statute provides: “Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Ibid.)

A trial court’s order granting discretionary relief under section 473, subdivision (b) “ ‘ “shall not be disturbed on appeal absent a clear showing of abuse.” ’ [Citation.] The scope of the trial court’s discretion under section 473 is broad [citation] and its factual findings in the exercise of that discretion are entitled to deference [citations].” (Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 24 (Minick).) “However, the trial court’s discretion is not unlimited and must be ‘ “exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” ’ [Citations.]” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233, superseded by statute on other grounds as stated in Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 64–65.)

“A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand.” (Paterno v. State of California (1999) 74 Cal.App.4th 68, 85.) “ ‘[A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue.’ ” (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.)

II. Aguirre Was Not Diligent In Seeking Relief

The trial court found Aguirre was not dilatory in seeking relief because he timely filed the motion within the six-month statutory window. However, the court disregarded the additional requirement that application for relief be made “within a reasonable time.”

Section 473, subdivision (b) requires that any application for discretionary relief “be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (§ 473, subd. (b).) Thus, a moving party has the threshold burden to “show diligence in making the motion after discovery of the default.” (Kendall v. Barker (1988) 197 Cal.App.3d 619, 625; see also Huh v. Wang (2007) 158 Cal.App.4th 1406, 1421 [the “critical triggering event for seeking relief from the judgment was notice of its entry”].) The six months provided by the statute “represents the outside limit ‘of the court’s jurisdiction to grant relief,’ ” and the “ ‘ “reasonable time” ’ ” requirement stands as an additional, “ ‘ “independent consideration.” ’ ” (Huh v. Wang, at p. 1422 [citing Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal.2d 523, 530 (Benjamin)].)

What constitutes a “reasonable time” to move for relief depends upon the particular circumstances of the case, but it is well-established that “[a] delay is unreasonable as a matter of law . . . when it exceeds three months and there is no evidence to explain the delay.” (Minick, supra, 3 Cal.App.5th at p. 34 [citing Benjamin, supra, 31 Cal.2d at p. 532]; see also Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1184 [reversing trial court’s order granting relief from default judgment and finding abuse of discretion where inadequate explanation was provided for four-month delay: “three-month unofficial ‘standard’ ” established in Benjamin “remains true today”]; Huh v. Wang, supra, 158 Cal.App.4th at pp. 1421―1422 [no abuse of discretion in denying relief where appellant delayed more than three months in moving for relief without explanation]; cf. Waite v. Southern Pacific Co. (1923) 192 Cal. 467, 471 [reversing order denying relief and finding five-month delay in seeking relief was adequately explained by “defendant . . . acting upon its honest belief that the state court had no jurisdiction of the action”].) In general, “the longer the delay in bringing the motion, the more substantial the justification for the delay must be in order for relief to be appropriately granted” under section 473, subdivision (b). (Stafford v. Mach, at p. 1185.)

In Benjamin, the defendant corporation “furnished no explanation in the trial court, either by affidavit or testimony” for its delay of more than three months in setting aside a default judgment. (Benjamin, supra, 31 Cal.2d at p. 528.) Our Supreme Court reversed the order setting aside the judgment, observing: “Courts do not relieve litigants from the effects of mere carelessness. Defendant has not cited, nor has independent research disclosed, any case in which a court has set aside a default where, in making application therefor, there has been an unexplained delay of anything approaching three months after full knowledge of the entry of the default. On the contrary, the proper procedure appears to involve the presentation of some explanation, by affidavit or testimony, of any extended delay, and the court then determines whether such explanation may be deemed sufficient to justify the granting of the relief sought.” (Id. at p. 529; see also Stafford v. Mach, supra, 64 Cal.App.4th at p. 1181 [“the reason for the delay must be substantial and must justify or excuse the delay”].)

Here, as in Benjamin, Aguirre did not present any evidence in the trial court explaining his five-month delay in seeking relief. It is undisputed that Aguirre was served on August 21, 2018 with the order reflecting the granting of the MSJ and the entry of judgment. Aguirre does not deny that he received that order, which put him on notice of the need for section 473, subdivision (b) relief. (See Huh v. Wang, supra, 158 Cal.App.4th at p. 1422.) Aguirre filed his motion for relief almost five months after that date, on January 10, 2019. The unsworn declarations he submitted in support of his motion did not explain the reasons for the delay, and addressed only the reasons for his failure to oppose the MSJ. (See Kendall v. Barker, supra, 197 Cal.App.3d at p. 625 [“ ‘The moving party has a double burden: He must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default.’ ”].) Further, Aguirre’s five-month delay in seeking relief undermines any claim of diligence because, during this period, Borenstein informed Aguirre of his intent to enforce the judgment and took preliminary steps to do so. Nonetheless, Aguirre waited almost five months to remedy the entry of judgment against him, and cannot be said to have acted diligently in seeking relief within a “reasonable time.” Therefore, the trial court abused its discretion by granting Aguirre’s motion to vacate the judgment.

DISPOSITION

The order granting Aguirre’s motion to vacate the judgment is reversed, and the judgment entering summary judgment in favor of Hanson is reinstated. Hanson is awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

EGERTON, J.

Filed 12/9/19 P. v. Cervantes CA4/2

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSE FRANCISCO CERVANTES,

Defendant and Appellant.

E068256

(Super.Ct.No. FWV17001239)

OPINION

APPEAL from the Superior Court of San Bernardino County. Stephan G. Saleson, Judge. Affirmed as modified in part, remanded with directions in part.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Defendant and appellant Jose Francisco Cervantes beat his girlfriend during an argument. Pursuant to a plea agreement, defendant pleaded no contest to infliction of corporal injury on a cohabitant within seven years of a prior domestic violence conviction. (Pen. Code, § 273.5, subds. (a) & (f)(1).) In return, defendant was placed on formal probation for a period of three years with various terms and conditions of probation. On appeal, defendant challenges four of his probation conditions, claiming they are unconstitutionally overbroad and/or vague, unreasonable, and should be stricken or modified.

In our original opinion in this case, we agreed modification was required for some of the challenged probation conditions, but rejected defendant’s remaining arguments. After we filed our opinion, the California Supreme Court decided In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.), which clarified the Lent standard as applied to electronics search conditions. Following its decision, the Supreme Court transferred the matter to this court with directions to vacate our prior decision and reconsider the matter in light of Ricardo P. We subsequently vacated our prior opinion filed May 11, 2018, and allowed the parties to submit supplemental briefs.

Defendant argues (1) in view of Ricardo P. this court should strike the electronics search condition because the condition is invalid under Lent and is unconstitutionally overbroad because it impermissibly restricts his First and Fourth Amendment rights; and (2) the residential search condition, the weapons condition, and the change of residence condition are unconstitutionally vague and overbroad and should therefore be stricken or modified.

We agree, and will strike the electronics search condition without prejudice to the People seeking to reinstate such a condition on a factual showing that satisfies the standard announced in Ricardo P. Accordingly, we remand the matter for the trial court to consider, consistent with this opinion, whether to impose an electronics search condition. Because we are striking the condition on Lent/Ricardo P. grounds, we do not reach defendant’s constitutional challenge relating to the electronics search condition. We also modify the residential search terms and change of residence conditions to defendant’s probation. As modified, the judgment is affirmed.

II

FACTUAL AND PROCEDURAL BACKGROUND

On March 18, 2017, defendant and his girlfriend of four years got into an argument. During the argument, defendant struck his girlfriend at least six times in her face and mouth and kicked her twice on her side and shoulder. As a result, defendant’s girlfriend sustained a black eye, bruising on both of her arms, and scratches on her face. Defendant’s girlfriend reported that defendant had injured her before in a previous domestic violence incident, resulting in her being left unconscious in a street outside of their residence. Based on the severity of the previous incident, defendant’s girlfriend did not want defendant placed in custody out of fear of what he would do to her upon his release.

On March 21, 2017, a felony complaint was filed charging defendant with inflicting corporal injury on a cohabitant or girlfriend within seven years of a prior domestic violence conviction. (§ 273.5, subds. (a) & (f)(1).) Defendant’s prior domestic violence conviction under section 273.5, subdivision (a), occurred on October 27, 2015, in San Bernardino County Superior Court, case No. FSB1503135. At the time of the instant case, defendant was on probation in connection with his prior domestic violence conviction.

On March 29, 2017, pursuant to a plea agreement, defendant pleaded no contest to the charge and admitted to violating probation in case No. FSB1503135. On April 27, 2017, the trial court granted defendant formal probation for a period of three years with various terms and conditions of probation, including term Nos. 008A (change of residence condition), 008F (residence search condition), 009 (weapons condition), 010B (electronics search condition). Defendant was also ordered to serve 210 days in county jail, with credit for time served, and to pay various fines and fees. During the hearing, defense counsel objected to the electronics device search condition, arguing the condition had no relationship to the offense and violated defendant’s due process rights. The prosecutor responded that many domestic violence offenders use cell phones to harass, threaten, stalk, and annoy their victims, and that the electronics device search condition would allow probation to effectively monitor whether defendant was using his cell phone to contact the victim. The trial court agreed with the prosecutor, reasoning that the condition would allow probation to “properly monitor domestic violence situations.”

On May 1, 2017, defendant filed a timely notice of appeal.

III

DISCUSSION

Defendant challenges four of his probation conditions, arguing they are unconstitutionally overbroad and/or vague and unreasonable, and should be stricken or modified.

“When an offender chooses probation, thereby avoiding incarceration, state law authorizes the sentencing court to impose conditions on such release that are ‘fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and . . . for the reformation and rehabilitation of the probationer.’ ” (People v. Moran (2016) 1 Cal.5th 398, 402-403, quoting § 1203.1, subd. (j).) Thus, “a sentencing court has ‘broad discretion to impose conditions to foster rehabilitation and to protect public safety pursuant to Penal Code section 1203.1.’ ” (Moran, at p. 403, quoting People v. Carbajal (1995) 10 Cal.4th 1114, 1120 (Carbajal).) “If a probation condition serves to rehabilitate and protect public safety, the condition may ‘impinge upon a constitutional right otherwise enjoyed by the probationer, who is “not entitled to the same degree of constitutional protection as other citizens.” ’ ” (People v. O’Neil (2008) 165 Cal.App.4th 1351, 1355 (O’Neil), quoting People v. Lopez (1998) 66 Cal.App.4th 615, 624 (Lopez).)

Judicial discretion in selecting the conditions of a defendant’s probation “is not unlimited.” (O’Neil, supra, 165 Cal.App.4th at p. 1355.) A probation condition is unreasonable and will not be upheld if it (1) has no relationship to the crime of which the defendant was convicted, (2) relates to conduct that is not criminal, and (3) requires or forbids conduct that is not reasonably related to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379-380 (Olguin); O’Neil, at p. 1355.) “This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (Olguin, at p. 379.) Thus, as a general rule, “even if a condition of probation has no relationship to the crime of which a defendant was convicted and involves conduct that is not itself criminal, the condition is valid as long as the condition is reasonably related to preventing future criminality.” (Id. at p. 380.)

However, “[j]udicial discretion to set conditions of probation is further circumscribed by constitutional considerations.” (O’Neil, supra, 165 Cal.App.4th at p. 1356.) Under this second level of scrutiny, if an otherwise valid condition of probation impinges on constitutional rights, the condition must be carefully tailored so as to be reasonably related to the compelling state interest in the probationer’s reformation and rehabilitation. (Ibid.; People v. Bauer (1989) 211 Cal.App.3d 937, 942; In re Sheena K. (2007) 40 Cal.4th 875, 890 (Sheena K.); In re Victor L. (2010) 182 Cal.App.4th 902, 910.) “The essential question . . . is the closeness of the fit between the legitimate purpose of the restriction and the burden it imposes on the defendant’s constitutional rights—bearing in mind, of course, that perfection in such matters is impossible, and that practical necessity will justify some infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)

Challenges to probation conditions ordinarily must be raised in the trial court or appellate review of those conditions will be deemed forfeited. (People v. Welch (1993) 5 Cal.4th 228, 234-235 (Welch) [extending the forfeiture rule to a claim that probation conditions are unreasonable, when the probationer fails to object on that ground in the trial court].) However, the forfeiture rule does not apply, and a defendant who did not object to a probation condition at sentencing may do so on appeal if the appellate claim “amount[s] to a ‘facial challenge’ ” that challenges the condition on the ground its “phrasing or language . . . is unconstitutionally vague or overbroad” and the determination whether the condition is constitutionally defective “does not require scrutiny of individual facts and circumstances but instead requires the review of abstract and generalized legal concepts—a task that is well suited to the role of an appellate court.” (Sheena K., supra, 40 Cal.4th at pp. 885, 887.) Thus, a challenge to a probation condition on the ground it is unconstitutionally overbroad or vague “that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law” (id. at p. 887, italics omitted), and such a challenge is reviewable on appeal even if it was not raised in the trial court (id. at p. 889). To the extent defendant raises a facial challenge to the constitutional validity of the residence reporting condition, the claim is not forfeited by defendant’s failure to raise it below. (Ibid.)

“Generally, we review the court’s imposition of a probation condition for an abuse of discretion.” (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143, citing Carbajal, supra, 10 Cal.4th at p. 1121.) However, we independently review constitutional challenges to a probation condition. (In re Shaun R., at p. 1143.) Based on the foregoing, we address the merits of defendant’s arguments post.

A. Electronics Search Condition

Defendant’s electronics search condition here provided as follows: “Submit to search and seizure by a government entity of any electronic device that you are an authorized possessor of pursuant to PC 1546.1(c)(10).” Defendant argues the electronics search condition should be stricken because the condition is invalid under Lent. Specifically, he asserts the condition “permits unfettered governmental access to [defendant]’s computer, cell phone, electronic devices, and all digital media,” and it is neither related to defendant’s crime nor to deterring future criminality. Defendant further contends the electronics search condition is unconstitutionally overbroad because it impermissibly restricts his First and Fourth Amendment rights.

Under Lent, supra, 15 Cal.3d 481, “ ‘[a] condition of probation will not be held invalid unless it “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . .” [Citation.]’ ” (Olguin, supra, 45 Cal.4th at p. 379, quoting Lent, at p. 486.) “This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (Olguin, at p. 379.)

It is undisputed that the electronics search condition relates to conduct which is not in itself criminal. The People also acknowledge that there is no indication in the record that either of defendant’s domestic violence offenses involved the use of any electronic devices. The People, however, assert that “it cannot be disputed that electronic devices are a central means by which [defendant] could initiate contact with the victim, in violation of his probation [and the no-contact order].” Thus, the People originally argued—and we agreed—that the condition failed the third Lent prong because it reasonably related to future criminality by enabling defendant’s probation officer to effectively supervise him. (See Olguin, supra, 45 Cal.4th at pp. 380-381 [“[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . ‘reasonably related to future criminality.’ ”].) However, Ricardo P. clarified the third Lent prong as it relates to electronics search conditions.

In Ricardo P., a juvenile who admitted to committing two burglaries was placed on probation subject to an electronics search condition. (Ricardo P., supra, 7 Cal.5th at pp. 1116-1117.) Although the juvenile had not used an electronic device in the charged offenses, the juvenile court justified the condition by (1) construing the juvenile’s statements to his probation officer as admitting he had used marijuana in connection with the offenses, and (2) “ ‘find[ing] that minors typically will brag about their marijuana usage . . . by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.’ ” (Id. at p. 1117.) Thus, the juvenile court reasoned the ability to search the juvenile’s electronic devices was “ ‘a very important part of being able to monitor [his] drug usage.’ ” (Ibid.)

The Court of Appeal concluded the electronics search condition was valid under Lent’s third prong, but the Supreme Court disagreed. (Ricardo P., supra, 7 Cal.5th at p. 1119.) The high court explained that “Lent’s requirement that a probation condition must be ‘ “reasonably related to future criminality” ’ contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Id. at p. 1122.) The court found “[s]uch proportionality . . . lacking” because “nothing in the record suggests that [this juvenile] has ever used an electronic device or social media in connection with criminal conduct.” (Ibid., italics added; see ibid. [“courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense”].) Therefore, the juvenile court’s generalized finding that juveniles use electronic devices to brag about marijuana use was insufficient to justify the condition because “Lent’s third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.)

The Ricardo P. court was skeptical of the connection between the electronics search condition and the juvenile’s future criminality, but even if it accepted the connection articulated by the juvenile court, it found the necessary proportionality lacking. (Ricardo P., supra, 7 Cal.5th at pp. 1120, 1122.) There was no evidence the juvenile had ever used an electronic device in connection with criminal activity and the search condition imposed a significant burden on privacy interests due to scope and magnitude of information that could be revealed. (Id. at pp. 1122-1124.) In invalidating the electronics search condition, our high court concluded it “imposes a very heavy burden on privacy with a very limited justification.” (Id. at p. 1124.)

The Ricardo P. court was careful to note that its “holding does not categorically invalidate electronics search conditions. In certain cases, the probationer’s offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality.” (Ricardo P., supra, 7 Cal.5th at pp. 1128-1129, citing People v. Appleton (2016) 245 Cal.App.4th 717, 724 [finding electronics search condition reasonable because the defendant lured victim using “ ‘either social media or some kind of computer software’ ”]; In re Malik J. (2015) 240 Cal.App.4th 896, 902 [condition allowing officers “to search a cell phone to determine whether [the defendant] is the owner” was reasonable in light of the defendant’s “history of robbing people of their cell phones”]; People v. Ebertowski (2014) 228 Cal.App.4th 1170, 1173, 1176-1177 [finding electronics search condition related to the defendant’s future criminality where the defendant was convicted of making gang-related criminal threats and had previously used social media sites to promote his gang].) But, on the record before it, the Ricardo P. court found “the electronics search condition imposes a burden that is substantially disproportionate to the legitimate interests in promoting rehabilitation and public safety.” (Ricardo P., at p. 1129.)

“From [Ricardo P., supra, 7 Cal.5th 1113] we glean the following guidelines for determining when an electronic[s] search condition survives the third prong of Lent . . . . First, there must be information in the record establishing a connection between the search condition and the probationer’s criminal conduct or personal history—an actual connection apparent in the evidence, not one that is just abstract or hypothetical. [Citation.] But no nexus between the search condition and the [probationer]’s underlying offense is required. . . . Finally, ‘the burden imposed by [the] probation condition’ must be proportionate to ‘the legitimate interests served by the condition.’ [Citation.] Thus, ‘ “[a] condition of probation that enables a probation officer to supervise his or her charges effectively is . . . ‘reasonably related to future criminality,’ ” ’ only if its infringement on the probationer’s liberty is not ‘substantially disproportionate to the ends of reformation and rehabilitation.’ ” (In re Alonzo M. (2019) 40 Cal.App.5th 156, 166.)

Under Ricardo P.’s clarification of Lent’s third prong, the People argue, unlike in Ricardo P., “here there is a much closer connection between the need to search [defendant’s] devices and the probation officer’s ability to monitor [defendant’s] compliance with the no-contact order.” The People further assert that “here, there is no other readily available means of ensuring that [defendant, who had twice beaten the victim,] abides by the no-contact order,” and “[d]epending on the victim to report any contact from [defendant] would be unreliable, as victims of domestic violence are often unwilling to report no-contact order violations due to fear of retaliation or an emotional connection to their abuser.” Therefore, the People contend “[i]n order to ensure the victim’s safety and [defendant’s] rehabilitation, probation must be allowed an effective means of monitoring [defendant’s] compliance with the court’s order prohibiting him from contacting the victim.”

However, we find the electronics search condition fails the test set forth in Ricardo P. because the connection to defendant’s personal history is weak and the burden imposed is disproportionate to the legitimate interests served by the condition. As stressed by the Ricardo P. court, “Lent’s third prong requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Ricardo P., supra, 7 Cal.5th at p. 1121.)

Here, as in Ricardo P., there is nothing in the record suggesting defendant used an electronic device or social media in connection with any crimes. It is true, as the prosecutor noted, that domestic violence offenders may use cell phones to harass, threaten, stalk, and annoy their victims. But, there is nothing in the record in this case showing that defendant engaged in electronic communications to harass, stalk, annoy, or threaten the victim. Nor is there any evidence raising a concern about defendant’s future criminality vis-à-vis electronic devices. Without such evidence, we cannot conclude that a broad electronics search condition similar to the one at issue in Ricardo P. is a proportional means of deterring defendant from future criminality. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.) Because the electronics search condition is unsustainable on the record currently before us, we must strike the condition.

The People argue that “should the court disagree with [its] position, [we] should not simply strike the condition as [defendant] suggests,” but rather remand the matter to the trial court to afford it an opportunity to more narrowly tailor the condition. We disagree. As the Ricardo P. court concluded in affirming the Court of Appeal’s judgment striking the electronics search condition, we strike the condition. (Ricardo P., supra, 7 Cal.5th at p. 1129.) But we do so without prejudice to the People seeking to reinstate such a condition on a proper factual showing that demonstrates “a degree of proportionality between the burden imposed by [the] probation condition and the legitimate interests served by the condition.” (Ricardo P., at p. 1122.)

Therefore, we remand the matter to the trial court for further proceedings consistent with this opinion. If, on remand, a proper factual showing is made that demonstrates “a degree of proportionality between the burden imposed by [the] probation condition and the legitimate interests served by the condition” (Ricardo P., supra, 7 Cal.5th at p. 1122), the trial court is directed to impose a more tailored electronics search condition. In a concurring and dissenting opinion, Chief Justice Cantil-Sakauye agreed the electronics search condition was flawed, not because it was invalid under Lent but because it was unconstitutionally overbroad and swept too broadly relative to its rationale. For that reason, the Chief Justice agreed the matter should be remanded, but stated she would direct the court to more narrowly tailor the condition. (Ricardo P., at pp. 1129-1131, 1140 (conc. & dis. opn. of Cantil-Sakauye, C.J.).)

B. Remaining Three Conditions

Defendant contends that various words and phrases in the residential search condition, the weapons condition, and the change of residence condition are both vague and overbroad. The People agree in part and disagree in part. The People agree that to avoid vagueness, an explicit knowledge requirement may be added to the residential search condition and the change of residence condition may be modified to allow for notification within 24 hours of a move. Otherwise, the People argue the challenged conditions should be upheld as written.

At sentencing, the trial court imposed the following terms and conditions of probation:

“Permit visits and searches of places of residence by agents of the Probation Department and/or law enforcement for the purpose of ensuring compliance with the terms and conditions of probation; not do anything to interfere with this requirement, or deter officers from fulfilling this requirement, such as erecting any locked fences/gates that would deny access to probation officers, or have any animals on the premises that would reasonably deter, threaten the safety of, or interfere with officers enforcing this term.” (Term No. 008F.)

“Neither possess nor have under your control any dangerous or deadly weapons, or explosive devices or materials to make explosive devices.” (Term No. 009.)

“Keep the probation officer informed of place of residence and cohabitants: give written notice to the probation officer twenty-four (24) hours prior to any changes. Prior to any move provide written authorization to the Post Office to forward mail to the new address.” (Term No. 008A.)

Defendant raised no objection in the trial court with respect to the above challenged conditions. Where a claim that a probation condition is facially overbroad and violates fundamental constitutional rights is based on undisputed facts, it may be treated as a pure question of law, which is not forfeited by failure to raise it in the trial court. (Sheena K., supra, 40 Cal.4th 875, 888-889; Welch, supra, 5 Cal.4th at p. 235.) To the extent defendant’s challenges raise pure questions of law, we will reach the merits of defendant’s claim. We focus solely on the constitutionality of the condition, not whether it is reasonable as applied to defendant. (See Lent, supra, 15 Cal.3d at p. 486 [test for reasonableness of probation conditions].) By failing to object below, defendant has forfeited all claims except a challenge “based on the ground the condition is vague or overbroad and thus facially unconstitutional.” (Sheena K., at p. 878.)

Trial courts must fashion precise supervision conditions so the probationer knows what is required. (Sheena K., supra, 40 Cal.4th at p. 890.) A condition is invalid if it is “ ‘ “ ‘so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ ” ’ ” (People v. Quiroz (2011) 199 Cal.App.4th 1123, 1128.) Nor may a court impose overbroad supervision conditions. Where a condition impinges on a constitutional right, it must be carefully tailored and reasonably related to the compelling state interest in reformation and rehabilitation. (Ibid.; Sheena K., at p. 890.) A “court may leave to the discretion of the probation officer the specification of the many details that invariably are necessary to implement the terms of probation. However, the court’s order cannot be entirely open-ended.” (O’Neil, supra, 165 Cal.App.4th at pp. 1358-1359 [probation condition forbidding defendant from associating with all persons designated by his probation officer was “overbroad and permit[ted] an unconstitutional infringement on defendant’s right of association”].) “If a probation condition serves to rehabilitate and protect public safety, the condition may ‘impinge upon a constitutional right otherwise enjoyed by the probationer, who is “not entitled to the same degree of constitutional protection as other citizens.” ’ ” (Id. at p. 1355, quoting Lopez, supra, 66 Cal.App.4th at p. 624.)

1. Residential Search Condition

Defendant argues the residential search condition, term No. 008F, is improperly vague and overbroad as to the terms “places of residence,” “interfere,” and “deter,” as well as the “any animals” clause. Specifically, he believes that it is unclear whether “places of residence” includes temporary places where he may stay overnight, such as the home of a parent, relative, or girlfriend he visits occasionally. Defendant also asserts that it is unclear what is meant by the words “interfere” and “deter” because it is impossible for defendant to know “everything what might deter a given officer or what might interfere with the residency search condition,” such as locking doors for his own safety or inadvertently leaving a child’s skateboard in the front yard that an officer might trip on. He further argues that the clause prohibiting him from having “any animals” that would “deter” and “interfere with” or “threaten the safety of” officers enforcing this term “is so vague as to lack any reasonable warning of what is prohibited.” He believes that the condition unreasonably restricts his legitimate interest in ensuring the security of himself and his family, and that the ambiguous language of the condition may bring innocent conduct subject to violation.

As previously noted, “A probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890.) “[T]he underpinning of a vagueness challenge is the due process concept of ‘fair warning.’ [Citation.] The rule of fair warning consists of ‘the due process concepts of preventing arbitrary law enforcement and providing adequate notice to potential offenders’ [citation], protections that are ‘embodied in the due process clauses of the federal and California Constitutions.’ [Citations.]” (Sheena K., at p. 890, quoting People v. Castenada (2000) 23 Cal.4th 743, 751.)

“The vagueness doctrine bars enforcement of ‘ “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” [Citations.]’ [Citation.] A vague law ‘not only fails to provide adequate notice to those who must observe its strictures, but also “impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” [Citation.]’ [Citation.] In deciding the adequacy of any notice afforded those bound by a legal restriction, we are guided by the principles that ‘abstract legal commands must be applied in a specific context,’ and that, although not admitting of ‘mathematical certainty,’ the language used must have ‘ “reasonable specificity.” ’ [Citation.]” (Sheena K., supra, 40 Cal.4th at p. 890, italics omitted.)

Initially, the term “places of residence” is not vague and/or overbroad. “A probation condition should be given ‘the meaning that would appear to a reasonable, objective reader.’ ” (Olguin, supra, 45 Cal.4th at p. 382.) A reasonable interpretation of the phrase “places of residence” makes it clear that defendant must permit searches of any place in which he resides, meaning any place where he lives “permanently” or “continuously.” (See Black’s Law Dict. (5th Ed.) at p. 1176 [defining “reside” as “to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one’s residence or domicile”]; Black’s Law Dict., supra, at p. 1176 [defining “residence” as “[p]ersonal presence at some place of abode with no present intention of definite and early removal and with purpose to remain for undetermined period, not infrequently . . . .”].) While defendant requests for the term to be changed to “domicile,” such a modification would prevent a probation officer from searching multiple residences, as a defendant may have two residences, but one domicile. “ ‘Because residence is not truly a synonym for domicile and its meaning in a particular statute is often subject to differing interpretations [citation], it is now well established that “ ‘residence’ is a term of varying import and its statutory meaning depends upon the context and purpose of the statute in which it is used.” ’ ” (People v. Grays (2016) 246 Cal.App.4th 679, 686, quoting People v. McCleod (1997) 55 Cal.App.4th 1205, 1217.) Residence means living in a particular locality, but domicile means living in that locality with intent to make it a fixed and permanent home. (See Black’s Law Dict., supra, at p. 1176.) “Residence simply requires bodily presence as an inhabitant in a given place, while domicile requires bodily presence in that place and also an intention to make it one’s domicile.” (Id. at pp. 1176-1177.) As such, a person may have two places of residence, but only one domicile, as illustrated by defendant.

“Proper supervision includes the ability to make unscheduled visits and to conduct unannounced searches of the probationer’s residence. Probation officer safety during these visits and searches is essential to the effective supervision of the probationer and thus assists in preventing future criminality.” (Olguin, supra, 45 Cal.4th at p. 381.) Officers must have ready access to the probationer’s residence to verify the probationer’s compliance and prevent future criminality such as domestic violence. Of course, locked gates and fences, and potentially dangerous animals create unreasonable obstacles to monitoring probationers. (Ibid. [“Animals can be unpredictable and potentially dangerous when faced with a stranger in their territory, and some pose a great or even life-threatening hazard to persons in these circumstances.”]) While “it would be unreasonable and impractical to leave it to a probationer to decide which pets could interfere with an officer’s supervisory duties, . . . it is reasonable to place the burden on a probationer to inform the probation officer which animals are present at his or her residence.” (Id. at p. 382.)

However, the condition prohibiting defendant from “do[ing] anything to interfere” with the searches does not specify that defendant know that he is doing something that interferes or deters. It is vague because defendant may inadvertently do something to interfere with a search without “ ‘know[ing] what is required of him.’ ” (Sheena K., supra, 40 Cal.4th at p. 890.) For instance, as defendant illustrated, he could inadvertently deter officers from visiting and searching by locking his door when he leaves his residence or locking a gate for safety. Therefore, the condition should be modified to add a knowledge requirement, as the People concede.

As to the prohibition against having any animals that would interfere with, deter, or threaten the safety of officers, similar probation conditions have been upheld by the California Supreme Court, which has concluded there is no fundamental constitutional right to own unregulated animals. (Olguin, supra, 45 Cal.4th at p. 385, fn. 3.) Because no constitutional right is involved, an overbreadth claim cannot lie. (Sheena K., supra, 40 Cal.4th at p. 890.) Nevertheless, there is a distinction between a probation condition that requires notice to the probation officer about the presence of animals and one that prohibits “hav[ing] any animals on the premises that would reasonably deter, threaten the safety of, or interfere with, officers enforcing the term.” To the extent the condition does not provide notice to defendant as to the type of animal that would be impermissible, it is vague. (Sheena K., at p. 890.) We therefore will modify the condition to instead require defendant to notify the probation officer of any animals at his residence, and to comply with the probation officer’s reasonable requests concerning animals.

Accordingly, to prevent arbitrary enforcement and provide clear notice, we modify the term to include an explicit knowledge requirement. (See Sheena K., supra, 40 Cal.4th at pp. 891-892.) We modify term No. 008F as follows: Permit visits and searches of places of residence by agents of the probation department and/or law enforcement for the purpose of ensuring compliance with the terms and conditions of probation; not knowingly do anything to interfere with this requirement, or knowingly deter officers from fulfilling this requirement. Probationer shall notify the probation officer of any locked gates and fences, and provide the probation officer with the means to access probationer’s residence without having probationer unlock a gate or fence (for example, by supplying the probation officer with a key to the gate or fence). Probationer shall notify the probation officer of any animals at his residence and comply with the officer’s reasonable requests concerning animals.

2. Weapons Condition

Defendant also contends that the part of the condition prohibiting possession of a “dangerous or deadly weapon” is unconstitutionally vague and overbroad because it can include common items, like kitchen knives, screwdrivers, razors, hammers, baseball bats, or garden tools, that could be used to inflict serious injury on another. He believes the condition should be modified to state “objects designed for primary use as or objects intended to be used as” dangerous and deadly weapons. We disagree.

In determining whether a condition of probation is sufficiently definite, a court is not limited to the condition’s text. (People v. Hall (2017) 2 Cal.5th 494, 500 (Hall), citing Lopez, supra, 66 Cal.App.4th at pp. 630-632.) “We must also consider other sources of applicable law [citation], including judicial construction of similar provisions.” (Hall, at p. 500.)

Where a probation condition implements statutory provisions that apply to the probationer independent of the condition and does not infringe on a constitutional right, it is not necessary to include in the condition an express scienter requirement that is necessarily implied in the statute. (People v. Kim (2011) 193 Cal.App.4th 836, 843 (Kim).) Section 29800 prohibits persons convicted of felonies from possessing firearms. As a probation condition that implements that statute, the condition precluding possession of a firearm should be given the same interpretation, even if the condition does not incorporate the statute by reference. (People v. Rodriguez (2013) 222 Cal.App.4th 578, 591 (Rodriguez), overturned on a different ground in Hall, supra, 2 Cal.5th at p. 503, fn. 2.)

In Hall, supra, 2 Cal.5th at p. 494, the California Supreme Court disapproved of cases holding that an express knowledge requirement was necessary to prevent unwitting violations of possessory probation conditions. (Id. at p. 503, fn. 2, disapproving of In re Kevin F. (2015) 239 Cal.App.4th 351, 361-366 & People v. Freitas (2009) 179 Cal.App.4th 747, 751-752.) The court also disapproved of cases holding that possessory probation conditions must include an express knowledge requirement where the prohibited item was not criminalized by statute but was merely related to criminality. (Hall, at p. 503, fn. 2, disapproving In re Ana C. (2016) 2 Cal.App.5th 333, 347-350 and Rodriguez, supra, 222 Cal.App.4th at p. 594.) That holding informs our reasoning and compels the result that no express knowledge element is required.

Defendant attempts to distinguish Hall, arguing “the issue here is not the Hall issue of whether [defendant] needs knowing possession of such items to be found in violation of this condition” but specificity on what items constitute “dangerous and deadly weapon.” We disagree. Hall’s discussion of how the Supreme Court has interpreted criminal statutes—relying solely on the presumption that scienter is required to reject vagueness challenges based on the lack of an explicit mens rea element—demonstrates that the specific case law applicable to possession probation conditions was not dispositive to the court’s analysis. Moreover, merely because a condition could have been drafted with more precision does not make it unconstitutional. (Hall, supra, 2 Cal.5th at p. 503 [“[T]he question before us is not whether this degree of precision would be desirable in principle, but whether it is constitutionally compelled.”].)

As noted in People v. Moore (2012) 211 Cal.App.4th 1179, 1186 (Moore), a court may not revoke a defendant’s probation absent a finding that the defendant willfully violated the terms and conditions of his or her probation. (See People v. Patel (2011) 196 Cal.App.4th 956, 960 [noting the well-settled rule that a probationer cannot be punished for presence, possession, or association without proof of knowledge]; Kim, supra, 193 Cal.App.4th at p. 846 [knowledge is an implicit element in the concept of possession].) The unwitting possession of contraband does not sufficiently establish backsliding by a probationer, nor does it sufficiently threaten public safety, to merit revocation without proof of the probationer’s state of mind to show the violation as willful. (Hall, supra, 2 Cal.5th at pp. 498, 500, 503, fn. 2.)

Here, term No. 009 prohibited possession of deadly or dangerous weapons. Defendant’s concern that he is unable to discern what conduct is prohibited and might accidentally possess an item prohibited by the probation condition is obviated by the fact he is prohibited by statute from possessing certain weapons, namely firearms (§ 29800, subd. (a)(1)) and the fact that only willful violations of probation can result in revocation. As for dangerous or deadly weapons not expressly prohibited by statute, case law has made clear that knowledge of the contraband’s presence and of its restricted nature is implicit in probation conditions restricting possession thereof. (Moore, supra, 211 Cal.App.4th at p. 1186.) Due process does not require an explicit scienter requirement when scienter is implicit. (Id. at p. 1187.)

As the court reasoned in Moore, supra, 211 Cal.App.4th at p. 1186, citing In re R.P. (2009) 176 Cal.App.4th 562, 567-568, the term “dangerous or deadly weapon” has a plain, commonsense meaning prohibiting possession of items specifically designed as weapons and other items not specifically designed as weapons that the probationer intended to use as such. It is unnecessary to define “dangerous or deadly weapon” or to add a knowledge requirement to prevent unwitting violations of probation where that probation cannot be revoked for innocent possession. (People v. Contreras (2015) 237 Cal.App.4th 868, 887 [“it is unnecessary to add a knowledge requirement to prevent unwitting violations of the condition”]; Moore, at p. 1188 [“addition of an express knowledge requirement would add little or nothing to the probation condition”].)

We find that term No. 009 is “sufficiently precise” for defendant to know what is required of him and not unconstitutionally vague and overbroad. (Moore, supra, 211 Cal.App.4th at p. 1186.)

3. Change in Residence Condition

Defendant contends that the requirement for him to give 24 hours’ advance notice of his and his cohabitants’ change in residence, without a requirement that he know of the change in advance, is both unconstitutionally vague and overbroad because it requires him to give notice of events he may not know are about to happen, such as “homelessness, instability, and unpredictable housing arrangements,” which are a “fact of life, especially for many convicts, probationers, and parolees.” He also believes the condition unduly infringes on his constitutional right to travel and relocate, and he requests modification of the condition.

As to the vagueness claim, the People concede, and we agree, that the condition should be modified. Specifically, the condition is unconstitutionally vague because if defendant’s cohabitant moves without telling him 24 hours ahead of time, or if he is forced to move due to an emergency, defendant would not “ ‘know what is required of him’ ” at the time that the condition requires him to submit written notice. (Sheena K., supra, 40 Cal.4th at p. 890.) Accordingly, we direct that the condition be modified to include a knowledge requirement.

Defendant also argues the post office provision, which requires him to “provide written authorization to the post office to forward mail to the new address” prior to any move, is vague and overbroad and “susceptible to arbitrary and unfair enforcement” as he could be in violation of probation “without doing anything wrong.” According to defendant, “[i]t is not a stretch of the imagination that the Post Office may fail to properly record a change of address request or may fail to properly forward mail pursuant to such a request.” Out of an abundance of caution, we will modify this provision as well to include a knowledge requirement.

IV

DISPOSITION

Probation condition No. 008A (change of residence condition) is modified to read: Keep the probation officer informed of the place of residence and cohabitants and give written notice to the probation officer twenty-four (24) hours before any move or change in cohabitants and address, or as soon as he reasonably becomes aware of a move or change in cohabitants or address, but no later than 24 hours after the move or change in cohabitants or address. Provide written authorization to the Post Office to forward mail to the new address twenty-four (24) hours before any move or change in address, or as soon as he reasonably becomes aware of a move or change in address, but no later than 24 hours after the move or change in address.

Probation condition No. 008F (residence search condition) is modified to read: Permit visits and searches of places of residence by agents of the Probation Department and/or law enforcement for the purpose of ensuring compliance with the terms and conditions of probation; not to do anything to knowingly interfere with this requirement, or to knowingly deter officers from fulfilling this requirement. Probationer shall notify the probation officer of any locked gates and fences and provide the probation officer with the means to access probationer’s residence without having probationer unlock a gate or fence. Probationer shall notify the probation officer of any animals at his residence and comply with the officer’s reasonable requests concerning animals.

Probation condition No. 010B (electronics search condition) is stricken. The case is remanded for the court to consider, consistent with this opinion, whether to adopt an electronics search condition.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

We concur:

SLOUGH

J.

FIELDS

J.

Case Number: BC656254 Hearing Date: December 10, 2019 Dept: 61

Defendants Ramirez and Jose Miguel Bonilla’s Motions to Compel Responses to Special Interrogatories and Requests for Production, Set One, form Plaintiff Jaime Farias are GRANTED. Sanctions are awarded against Farias and his counsel in the amount of $1,240.

MOTIONS TO COMPEL

A propounding party may demand a responding party to produce documents that are in their possession, custody or control. (Code Civ. Proc., § 2031.010.) A party may likewise conduct discovery by propounding interrogatories to another party to be answered under oath. (Code Civ. Proc. § 2030.010, subd. (a).) The responding party must respond to the production demand either by complying, by representing that the party lacks the ability to comply, or by objecting to the demand. (Code Civ. Proc., § 2031.210.) The responding party must respond to the interrogatories by answering or objecting. (Code Civ. Proc. § 2030.210, subd. (a).) If the responding party fails to serve timely responses, the propounding party may move for an order compelling responses to the production demand and interrogatories. (Code Civ. Proc., §§ 2030.290, 2031.300.)

A party who fails to serve a timely response to interrogatories or a demand for inspection waives any objection to the demand. (Code Civ. Proc., §§ 2030.290, 2031.300.)

Ramirez and Bonilla argue that they served Special Interrogatories and Requests for Production upon Farias on May 7, 2019, and that despite their efforts to secure responses, no responses have been served. (Sklar Decl. ¶¶ 3–5.)

In opposition, Farias contends that he will provide responses before hearing in this matter. (Opposition at p. 2.)

If code-compliant and objection-free responses are not provided by the hearing on this motion, the motions will be GRANTED.

SANCTIONS

The prevailing party on a motion to compel is generally entitled to monetary sanctions, unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §§ 2030.290, 2031.300.) Sanctions are also mandatory against a party whose failure to serve responses to requests for admission makes the motion necessary. (Code Civ. Proc. § 2033.280, subd. (c).)

Ramirez and Bonilla ask for $1,560.00 in sanctions with each motion, representing six hours of work at $250 per hour plus a $60 filing fee for each motion, or a total request of $6,240.00. The court awards $1,240 in sanctions against Farias and his counsel.

Defendants to provide notice.

Case Number: BS163332 Hearing Date: December 10, 2019 Dept: 78

Superior Court of California
County of Los Angeles
Department 78

behzad forat;

Plaintiff,

vs.

CITY OF LOS ANGELES, et al.;

Defendants.

Case No.:

BS163322

Hearing Date:

December 10, 2019

[TENTATIVE] RULING RE:

Defendants CITY OF LOS ANGELES AND LOS ANGELES CITY COUNCIL’s amended demurrer to the second, third, and fifth claims in the verified petition for writ of mandate and complaint

The Amended Demurrer to the Complaint of Defendants City of Los Angeles and Los Angeles City Council, is OVERRULED for the Second Cause of Action as it relates to the alleged $400,000 investments in experts and environmental review, and is SUSTAINED with leave to amend as it relates to the loss of the $30,000,000 sale opportunity; and SUSTAINED with leave to amend for the Third and Fifth Causes of Action.

Factual Background

This is a land use/takings and Brown Act action. The Verified Petition for Writ of Mandate and Complaint alleges as follows. Petitioners Behzad Forat and Studio City Car Wash (collectively, “Forat”) seek a writ of mandate to set aside and vacate a decision of the City of Los Angeles (the “City”) and the Los Angeles City Council (“City Council”) to rescind an earlier action that would have commenced processing a General Plan Amendment and Zone Change for property owned by Forat. (Compl. at p. 1.) Forat owns two parcels of located on E. Cahuenga Blvd. (the “Property”), totaling 19 acres on the east side of the 101 freeway in the Cahuenga Pass. (Compl. ¶ 5.) In 2014, a City Councilmember asked to purchase part of the Property for the City to use as open space parkland with a small parking lot and hiking trail. (Compl. ¶ 6.) Following negotiations, Forat agreed to donate ten acres to the City (the “Donation Property”) in exchange for the City allowing Forat to build an apartment building on the remaining acreage of the Property (the “Development Property”). (Compl. ¶ 6.)

On March 18, 2015, the City Council adopted a Motion that authorized the City acquire the Donation Property after the Development Property was rezoned, and instructed the City Planning Department to “initiate consideration of a General Plan Amendment and Zone Change, and other City Planning approvals if needed, including the preparation and adoption of any required ordinances, to rezone [the Development Property] as R3 and rezone [the Donation Property] as open space should the City ultimately acquire that parcel” (the “March 2015 Action”). (Compl ¶ 9.) Following the decision through March 2016, Forat worked with his hired private consultants and the staff at the City Planning Department to prepare an EIR and process the amendments. (Compl. ¶¶ 12-14.)

On April 1, 2016, following a motion from Councilmember Ryu to rescind the March 2015 Action, the City Council held a public hearing on the motion. (Compl. ¶ 19.) The City Council held eight minutes of public comment, only one minute for each of Forat and his counsel, then adjourned to closed session for an hour and a half pursuant to Government Code section 54956.9(d)(2) and (e)(5). (Compl. ¶¶ 19-20.) Following the closed session, the City Council voted on the motion with little discussion (the “April 2016 Action”). (Writ ¶ 20.)

Following a letter from Forat to the City Council asserting that the City Council’s actions violated the Ralph M. Brown Act, the City Attorney’ Office wrote that two motions would be added to the City Council’s agenda: (1) a motion to rescind the April 2016 Action, and if that motion passes, (2) a repeat motion of that addressed at the April 1, 2016 hearing to rescind the March 2015 Action. (Compl. ¶ 22.) At a May 23, 2016 hearing, both motions passed 11-0, with public comment limited to one minute for each Forat and his counsel (the “May 2016 Action”). (Compl. ¶ 23.)

Forat alleges that the May 2016 Action did not cure the Brown Act violations at the April 2016 Action. (Compl. ¶24.) Forat also submitted a claim for reimbursement to the City on April 19, 2016 seeking $400,000 for out-of-pocket expenses of architects, EIR consultants, civil engineers, environmental engineers, traffic engineers, land use consultants, soils consultants and attorneys, and for additional damages of $30,000,000 due to lost opportunity to sell the Property for that amount in May 2016, which the City rejected on May 4, 2016. (Compl. ¶ 26.) Forat submitted updated information to the City on May 19, 2016 but has not received a response. (Compl. ¶ 27.)

procedural history

Forat filed a Verified Petition for Writ of Mandate and Complaint on June 28, 2016 alleging six causes of action:

Writ of Mandate

Inverse Condemnation

Promissory Estoppel

Declaratory Relief

Violation of Civil Rights

Violation of Brown Act

On September 15, 2016, the City filed a Demurrer to the Petition.

On October 6, 2016, the Court in Dept. 85 ordered the second, third, and fifth causes of action stayed pending resolution of the remaining causes of action. The demurrer was ordered to proceed on the other causes of action, only.

On November 15, 2016, the Court sustained the demurrer to the First Cause of Action, and overruled to the Fourth and Sixth Causes of Action.

From approximately October 2016 through April 2018, the parties were engaged in discovery motions.

On February 6, 2019, Forat filed an Opening Brief re: Violation of Brown Act.

On May 28, 2019, the Court denied Forat’s Petition for Writ of Mandate. The Court’s ruling was as follows: “The Petition’s Brown Act and declaratory relief claims are denied. The court previously sustained the demurrer to the first cause of action for writ of mandate without leave to amend. The court also previously stayed the Petition’s second, third and fifth causes of action.” The case was ordered transferred to an IC court for resolution of the remaining claims.

On September 19, 2019, the City filed an Amended Demurrer to the remaining claims in this Department 78.

On November 1, 2019, Forat filed an Opposition.

On November 22, 2019, the City filed a Reply.

Discussion

REQUESTS FOR JUDICIAL NOTICE

Where the motion is based on a matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, the matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit. (California Code of Civil Procedure §438(d)). Any request for judicial notice must be made in a separate document listing the items for which notice is requested. (CRC 3.1113(l)). Judicial notice may be taken of “(b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (f) The law of an organization of nations and of foreign nations and public entities in foreign nations. (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code § 452.)

The City requests that this Court take judicial notice of various Los Angeles Superior Court Orders, City of Los Angeles Charter and Municipal Code sections, the Los Angeles Zoning Map – Zone Information Map Access System Parcel Numbers, Los Angeles City Council action, and a Master Land Use Application. The Court grants these requests.

DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Here, the City and City Council (the “Defendants”) demurrer to the three remaining causes of action for inverse condemnation/unconstitutional takings (Second Cause of Action), promissory estoppel (Third Cause of Action), and violation of civil rights/due process (Fifth Cause of Action). The Defendants argues that Forat’s second, third, and fifth claims do not and cannot state a cause of action and must be dismissed. (Motion at p. 11.)

SECOND CAUSE OF ACTION – INVERSE CONDEMNATION/UNCONSTITUTIONAL TAKINGS

Defendants argue that the Complaint does not state an Inverse Condemnation/Regulatory and Physical Taking claim against Defendants because: (1) Forat does not allege a physical taking, (2) Forat does not allege deprivation of any property interest protected by the takings clause, (3) Forat does not allege deprivation of all economically beneficial or productive use of property, (4) Forat’s takings claim is not ripe because he does not allege any attempt to develop the property under existing zoning, (5) Forat does not and cannot allege a taking under the Penn Central factors, and (6) Forat cannot allege a takings claim based upon failure to “substantially advance any legitimate state interest.” (Motion at pp. 14-19.)

As a preliminary matter, the Court agrees with Defendants that the Petition/Complaint (“Complaint”) does not allege a physical taking, and Forat indicates that such is the case as well (see e.g., Opposition at p. 9 [“Regulatory takings challenges that do no involve a physical invasion…”].) Accordingly, the Court’s analysis regards a regulatory taking only.

Property Interest

Defendants argue that Forat cannot prevail on this cause of action because the Complaint does not support deprivation of a property interest. (Motion at p. 14.) Defendants contend that amendment of zoning regulations and the General Plan are not a property interest and are uncertain, speculative, and discretionary prospects with unknown outcomes. (Motion at pp. 14-15.)

In Opposition, Forat argues that “regulatory takings are actions, even if they do not deprive an owner of all economic benefits and are of temporary duration.” (Opposition at p. 10.) Forat contends that his takings claim is for the lost value of his property which was incurred as a result of the City’s actions. (Opposition at p. 10.)

The United States Constitution provides that no private property may be taken for public use without just compensation. (U.S. Const. amend. V.) When an owner of real property “has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.” (Lucas v. South Carolina Coastal Council (1992) 505 U.S. 1003, 1019.)

Here, the Complaint alleges that the “taking” in this case is the undue interference with and deprivation of Forat “of his reasonable and distinct investment backed expectations with regard to the Property and upon which Forat relied in acquiring the Property and incurring significant expense to comply with the March 2015 Action.” (Compl. ¶ 37.) The Complaint alleges that it is now impossible for Forat “to either use or receive benefit from his investment in the Property.” (Compl. ¶ 37.)

“Property” for purposes of a taking is not limited merely to physical property, but extends to a “range of interests that qualify for protection as ‘property’ under the Fifth and Fourteenth Amendments.” (Lucas v. South Carolina Coastal Council, supra, 505 U.S. at 1030.) Property for this purpose may include “all economically productive or beneficial uses of land[.]” (Id.)

Here, for purposes of demurrer, because the Complaint alleges that City Council’s actions have made it impossible for Forat to use the property or benefit from his investment in the property, it is sufficiently alleged that that there is a property interest at stake.

Beneficial or Productive Use of Property

However, Defendants also argue that Forat cannot allege any inability to develop the Property under the existing (RE40 zoning) and thus cannot allege a taking based upon denial of “all economically beneficial or productive use” of the Property. (Motion at p. 16.) Defendants contend, relying on Long Beach Equities v. County of Ventura (1991) 231 Cal.App.3d 1016, that the gravamen of Forat’s Complaint is that a taking occurred because the City “ceased consideration of an uncertain and speculative zone change and negotiations to acquire property,” and that is insufficient. (Motion at p. 16.)

In Opposition, Forat argues that regulatory takings are actionable even if they do not deprive an owner of all economic benefit and are of a temporary duration. (Opposition at p. 10.)

In Long Beach Equities, the plaintiff alleged that the county’s actions in rescinding an area land?? and forbidding all development in the area, downzoning the property, and imposing a growth-control plan resulted in a de facto taking. (Long Beach Equities v. County of Ventura, supra, 231 Cal.App.3d at 1028.) The court found that the plaintiff had not been denied any viable economic use of the property because the plaintiff could still apply for a different type of zoning change or other special uses that are still economically beneficial. (Id. at 1038.)

Takings challenges have generally been held meritless when the challenged governmental actions prohibited the most beneficial use of the property or a beneficial use to which individual parcels had previously been devoted and thus caused substantial individualized harm. (Penn Cent. Transp. Co. v. City of New York (1978) 438 U.S. 104, 125.)

Forat states that the Court should consider the factors articulated in Penn Central Transportation Co. to determine whether an ad hoc regulatory taking has occurred. There is no “set formula” for determining whether a taking has occurred and requires compensation, instead it is fact-based determination “upon the particular circumstances [in that] case.” (Id. at 124.) The Supreme Court has identified several factors of particular significance: the economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, as well as the character of the governmental action. (Id.) The government may pursue policies, programs and changes in the law that “adversely affect economic values,” particularly when the government’s decision will positively affect the health, safety, morals, or general welfare of the public. (Id. at 125.)

In the years since Penn Central, California courts have determined that there are two types of regulatory takings: (1) those where a property owner is deprived of all economically beneficial or productive use of the property, and (2) those where the Penn Central factors are considered. (Action Apartment Assn. v. City of Santa Monica (2008) 166 Cal.App.4th 456, 468.) Accordingly, Defendants’ assertion that Forat must show that he has been denied all economically beneficial or productive use of the Property is incorrect.

Here, the Complaint alleges that the March 2015 Action by the City Council required Forat to undertake an environmental review and planning process that cost him $400,000. (Compl. ¶ 37.) The Complaint further alleges that Forat entered into a contract to sell the Development Property for $30,000,000, based on the March 2015 Action, but that Forat is now unable to develop the property at all due to incomplete environmental review. (Compl. ¶ 37.)

Under the Penn Central factors, the Complaint has thus alleged a significant economic impact due to the expenditure of $400,000 for environmental review, required by the City, which it undertook only due to the Defendants’ March 2015 Action of passing the Motion indicating that the Property would be developed. This is an imposition on investment-backed expectations as Forat would not have invested such $400,000 without the expectation that the property would be developed. The Complaint does not allege, and Defendants have not offered, reasons of health, safety, morals, or general welfare of the public for the Defendants to rescind the March 2015 Action to factor into the Court’s review. Accordingly, Forat has alleged sufficient facts that a taking has occurred. (See, e.g., Florida Rock Industries, Inc. v. U.S. (Fed. Cir. 1986) 791 F.2d 893, 905 [“In determining the severity of economic impact, the owner’s opportunity to recoup its investment or better, subject to the regulation, cannot be ignored”].)

However, Forat’s claim for the $30,000,000 is less persuasive because he already owned the property prior to the March 2015 Action and would not have been able to sell the property for $30,000,000 prior to the March 2015 Action either. The Complaint does not contain any allegation that the Defendants’ action reduced the value of the Property below what it was before the March 2015 action or otherwise caused loss in value. In Shaw v. County of Santa Cruz, the court found that the county’s action in denying an electrical permit, without evidence of a loss of return on the property investment or reduced value, did not establish a taking. (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 271.)

Defendants argue that Forat’s claim is not ripe because he did not pursue obtaining a different type of permit. (Motion at pp. 16-17.) However, “ripeness” is not typically determined in this manner, usually a plaintiff must show that the government agency has made a “final and authoritative determination of the type and intensity of development legally permitted on the subject property. (Long Beach Equities, Inc. v. County of Ventura, supra, 231 Cal.App.3d at 1032.) Here, the Defendants voted to rescind the March 2015 Action twice, and following Forat’s letter alleging a Brown Act Violation, the City responded that “The Council shall take no further ‘curative’ action on this matter,” indicating finality. (Compl. ¶¶ 20-25.) Accordingly, ripeness is not an issue for purposes of demurrer.

Defendants further argue that Forat cannot allege a takings claim based upon failure to “substantially advance any legitimate state interest.” (Motion at pp. 18-19.) This Court agrees because the Supreme Court has found that the “‘substantially advances’ formula is not a valid takings test[.]” (Lingle v. Chevron U.S.A. Inc. (2005) 544 U.S. 528, 545.)

Accordingly, the Demurrer to the Second Cause of Action is OVERRULED as it relates to the alleged $400,000 investments in experts and environmental review, and is SUSTAINED with leave to amend as it relates to the loss of the $30,000,000 sale opportunity.

Third Cause of Action – Promissory Estoppel

The Complaint further alleges that Defendants may be bound by promissory estoppel in the same manner as private parties because Forat relied upon Defendants’ representations and conduct when he spent approximately $400,000 and then Defendants rescinded the March 2015 Action and refused to further process the EIR, knowing that Forat had already spent the money for the environmental review and project planning as required by the March 2015 Action. (Compl. ¶¶ 44-46.)

Defendants argue on demurrer that Forat cannot state a claim for estoppel because (1) there is no estoppel without permits/vested rights, (2) the City’s action were legally rational and appropriate, and (3) the claim is barred by governmental immunity. (Motion at pp. 19-20.)

As a preliminary matter, principles of promissory estoppel apply to claims against the government, particularly where the application of the doctrine would further public policies and prevent injustice. (US Ecology, Inc. v. State of California (2001) 92 Cal.App.4th 113, 131; Kajima/Ray Wilson v. Los Angeles County Metropolitan Transp. Authority (2000) 23 Cal.4th 305, 313.)

The elements of a promissory estoppel claim are (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must be injured by his reliance. (Flintco Pacific, Inc. v. TEC Management Consultants, Inc. (2016) 1 Cal.App.5th 727, 734.)

Here, the Complaint alleges that the March 2015 Action instructed the City’s Planning Department to “initiate consideration of a General Plan Amendment and Zone Change,” which included the cost of an EIR to be paid by Forat. (Compl. ¶ 43.) The Complaint alleges that Forat spent $400,000 in reliance on “Respondent and Defendants’ promise in the March 2015 Action to consider the [General Plan Amendment], [Zone Change], SRA and EIR. (Compl. ¶ 43.)

“[A] promise is an indispensable element of the doctrine of promissory estoppel.” (Garcia v. World Savings, FSB (2010) 183 Cal.App.4th 1031, 1044.) A promise must be clear and unambiguous in its terms, and cannot be established from preliminary negotiations and discussions. (Id.)

It is not clear in this case what Forat is alleging to be the promise. The Complaint does not expressly clarify whether the promise is for the City to “consider” making a General Plan Amendment and Zone Change, or whether the promise is for the City to allow Forat to develop his planned apartment complex.

Accordingly, the Demurrer to the Third Cause of Action is SUSTAINED with leave to amend.

Fifth Cause of Action – Violation of Civil Rights/Due Process

Defendants argue that Forat does not and cannot allege deprivation of any property interest protected by the due process clause in his Complaint. (Motion at p. 21.) Defendants contend that Forat cannot state a procedural or substantive due process claim “for the same reasons why Plaintiffs do not and cannot allege a takings claim,” which is that Forat cannot show that the government’s actions results in deprivation of land use to which he was entitled. (Motion at pp. 21-23.) Defendants further argue that, even if Forat did have a property interest, he had the opportunity to be heard and was heard at two separate City Council meetings. (Motion at p. 22.) Even more, Defendants argue that Forat cannot establish an outrageous or egregious abuse of power by Defendants. (Motion at p. 23.)

In Opposition, Forat argues that Defendants’ actions in “rescinding the March 2015 Action and halting the preparation of the EIR and refusing to conduct public hearings on Forat’s pending application […] constitutes a violation of Forat’s rights to procedural due process under the U.S. Constitution because Defendants’ actions were based a change of politics[.]” (Opposition at p. 15.)

“The Fourteenth Amendment provides that ‘[n]o State shall … deprive any person of life, liberty, or property, without due process of law….’ Nonetheless, before reaching any question about the fairness of a particular proceeding under the federal Constitution, we must first address whether a protected interest—life, liberty, or property—is implicated. If no such interest is involved, then the procedural protections of the due process clause do not come into play.” (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1178, as modified on denial of reh’g (Sept. 11, 1996).)

For purposes of due process, a property interest may exist where a “property-holder possesses a legitimate claim of entitlement to a permit or approval[.]” (Id. at 1180.) A cognizable property interest only exists “when the discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured,” and this standard focuses on the amount of discretion allowed to the agency not the amount of discretion exercised. (Id.)

In this case, there is no indication in the Complaint that the Defendants’ discretion was so narrowly circumscribed that Forat was guaranteed approval of his project. The Complaint provides the specific language of the Motion approved by the March 2015 Action, which states: “1. AUTHORIZE and INSTRUCT the Department of General Services to enter into negotiations with the current owner of the property […], in order for the City to acquire the [Donation Property][and…] 2. INSTRUCT the Planning Department, in consultation with Council District Four, to initiate consideration of a General Plan Amendment and Zone Change, and other City Planning approvals if needed […] to rezone [the Development Property] as R3 and to rezone the [Donation Property] as open space should the City ultimately acquire that parcel.” (Compl. ¶ 9.) The Complaint further alleges that Forat worked closely with the City’s staff to prepare the necessary reports for the EIR, and that a draft initial study was in review by the Planning Commission and a traffic study was in review by the Department of Transportation. (Compl. ¶ 12.)

However, the Complaint does not allege that the project had already been approved or that permits has already been issued. Also, the Complaint does not allege that the City was otherwise bound by its action to rezone the Property and acquire the Donation Property. Further, the language provided in the motion approved by the March 2015 Action does not narrow circumscribe the discretion of the City, particularly because the motion only instructs the Planning Department to “consider” a General Plan Amendment and Zone Change, and did not compel the Planning Department to make such change. (See, Compl. ¶9.)

Accordingly, the Demurrer to the Fifth Cause of Action is SUSTAINED with leave to amend.

DATED: December 10, 2019

________________________________

Hon. Robert S. Draper

Judge of the Superior Court

Case Number: 19STCV28944 Hearing Date: December 10, 2019 Dept: 85

Royal Business Bank v. Jasmine Chu, et al., 19STCV28944

Tentative decision on application for right to attach order: granted

Plaintiff Royal Business Bank (“Bank”) applies for a right to attach order against Defendant Jasmine Chu aka Jasmine Lotman (“Chu”) in the amount of $3,035,814.84.

The court has read and considered the moving papers, opposition,[1] and reply, and renders the following tentative decision.

A. Statement of the Case

1. Complaint

Plaintiff Bank commenced this action against Defendants Chu, Paul Lotman aka Paul M. Lotman (“Lotman”), and Lotman, Inc. on August 14, 2019 alleging causes of action for (1) breach of contract (unconditional guarantee/commercial guaranty), (2) money due, (3) breach of contract (unconditional guarantee/commercial guaranty), (4) money due, (5) breach of contract (unconditional guarantee/commercial guaranty/commercial guaranty security agreements), (6) money due, (7) recovery of personal property, and (8) conversion. The verified Complaint alleges in pertinent part as follows.

a. The SBA Loan

On June 27, 2016, Bank, as lender, and BW Independence Venture, LLC (“Independence” or “Borrower”), as borrower, entered into a written Business Loan Agreement (“SBA Loan Agreement”). On June 27, 2016, Independence executed and delivered to Bank a U.S. Small Business Administration SBA Note (“SBA Note”) (collectively the “SBA Loan Documents”) for the principal sum of $2,155,000.00, as modified on May 29, 2017 pursuant to a written Modification to Note.

Pursuant to the terms of the SBA Loan Agreement, the Borrower promised to repay to Bank the principal amount of $2,155,000, together with interest on the unpaid outstanding principal balance, and other charges as more particularly set forth in said SBA Note, payable in monthly installments beginning one month from the month of initial disbursement and continuing monthly thereafter on the first calendar day of each month, until July 1, 2041, when the entire unpaid balance due would be due and payable.

Events of monetary and non-monetary defaults under the Loan Documents have occurred, including but not limited to, (a) Borrower’s failure to make the payment due on June 1, 2019, or any subsequent payment due thereafter; (b) a material adverse change in Borrower’s financial condition; and (c) Bank in good faith believes itself insecure.

Pursuant to the terms of the SBA Loan Documents, Bank accelerated the unpaid balance due on the SBA Note and made demand upon Borrower for payment, but Borrower failed and refused to pay the sum due. There is now due from Independence the principal sum of $2,053,613.50, together with unpaid accrued interest, late charges and other fees and charges, according to proof.

b. The Non-SBA Loan

On June 27, 2016, Bank, as lender, and Independence, as borrower, entered into a written Business Loan Agreement (“Loan Agreement”). In reliance thereof, on June 27, 2016, Independence executed and delivered to Bank a Promissory Note (“Note”) (collectively, “Loan Documents”), in writing, for the sum of $940,000.00, exclusive of interest, for value received.

Pursuant to the terms of the Note, Borrower promised to repay to Bank the principal amount of $940,000, together with interest on the unpaid principal balance, and other charges as more particularly set forth in said Note, payable in monthly installments beginning August 10, 2016 through July 10, 2026, when the entire unpaid balance due under the terms of the Note would be due and payable.

Events of monetary and non-monetary defaults under the Loan Documents have occurred, including but not limited to: (a) Borrower’s failure to make the payment due on June 10, 2019, or any subsequent payment due thereafter; (b) a material adverse change in the Borrower’s financial condition; and (c) Bank in good faith believes itself insecure. Pursuant to the terms of the Loan Documents, Bank accelerated the unpaid balance due on the Note and made demand upon Borrower for payment, but Borrower failed and refused to pay the sum due.

There is now due from Independence the principal sum of $893,643.39, together with unpaid accrued interest, late charges and other fees and charges, according to proof.

c. The Guaranties

On June 27, 2016, Defendants each executed and delivered to Bank an Unconditional Guaranty and a Commercial Guaranty that jointly and severally, guaranteed to Bank the full and punctual payment, performance and satisfaction of Borrower’s indebtedness to Bank, then existing or thereafter arising or acquired. The loans made to Independence by Bank evidenced by the SBA Note and Note constitute credit as defined in said Guaranties and were granted to Independence in reliance upon the obligations of Defendants.

Independence is indebted to Bank pursuant to the terms of the SBA Note and Note in the aggregate principal sum of $2,947,256.89, together with unpaid accrued interest, accruing interest, late charges and other fees and charges, according to proof at time of trial or entry of judgment. Bank made demand upon Defendants for payment of the sums due and owing under the terms of their Guaranties. However, Defendants failed and refused, and continue to fail and refuse, to pay the sums due and owing to Bank.

2. Course of Proceedings

According a proof of service on file, Defendant Chu was personally served with the Summons, Complaint, and moving papers on September 11, 2019.

On October 11, 2019, Chu filed an Answer to the Complaint.

B. Applicable Law

Attachment is a prejudgment remedy providing for the seizure of one or more of the defendant’s assets to aid in the collection of a money demand pending the outcome of the trial of the action. See Whitehouse v. Six Corporation, (1995) 40 Cal.App.4th 527, 533. In 1972, and in a 1977 comprehensive revision, the Legislature enacted attachment legislation (CCP §481.010 et seq.) that meets the due process requirements set forth in Randone v. Appellate Department, (1971) 5 Cal.3d 536. See Western Steel & Ship Repair v. RMI, (12986) 176 Cal.App.3d 1108, 1115. As the attachment statutes are purely the creation of the Legislature, they are strictly construed. Vershbow v. Reiner, (1991) 231 Cal.App.3d 879, 882.

A writ of attachment may be issued only in an action on a claim or claims for money, each of which is based upon a contract, express or implied, where the total amount of the claim or claims is a fixed or readily ascertainable amount not less than five hundred dollars ($500). CCP §483.010(a). A claim is “readily ascertainable” where the amount due may be clearly ascertained from the contract and calculated by evidence; the fact that damages are unliquidated is not determinative. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41 (attachment appropriate for claim based on rent calculation for lease of commercial equipment).

If the action is against a defendant who is a natural person, an attachment may be issued only on a commercial claim which arises out of the defendant’s conduct of a trade, business, or profession. CCP §483.010(c). Consumer transactions cannot form a basis for attachment. CCP §483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction).

The plaintiff may apply for a right to attach order by noticing a hearing for the order and serving the defendant with summons and complaint, notice of the application, and supporting papers any time after filing the complaint. CCP §484.010. Notice of the application must be given pursuant to CCP section 1005, sixteen court days before the hearing. See ibid.

The notice of the application and the application may be made on Judicial Council forms (Optional Forms AT-105, 115). The application must be supported by an affidavit showing that the plaintiff on the facts presented would be entitled to a judgment on the claim upon which the attachment is based. CCP §484.030.

Where the defendant is a natural person, the description of the property must be reasonably adequate to permit the defendant to identify the specific property sought to be attached. CCP §484.020(e). Although the property must be specifically described, the plaintiff may target for attachment everything the individual defendant owns. Bank of America v. Salinas Nissan, Inc., (1989) 207 Cal.App.3d 260, 268.

A defendant who opposes issuance of the order must file and serve a notice of opposition and supporting affidavit as required by CCP section 484.060 not later than five court days prior to the date set for hearing. CCP §484.050(e). The notice of opposition may be made on a Judicial Council form (Optional Form AT-155).

The plaintiff may file and serve a reply two court days prior to the date set for the hearing. CCP §484.060(c).

At the hearing, the court determines whether the plaintiff should receive a right to attach order and whether any property which the plaintiff seeks to attach is exempt from attachment. The defendant may appear the hearing. CCP §484.050(h). The court generally will evaluate the attachment application based solely on the pleadings and supporting affidavits without taking additional evidence. Bank of America, supra, 207 Cal.App.3d at 273. A verified complaint may be used in lieu of or in addition to an affidavit if it states evidentiary facts. CCP §482.040. The plaintiff has the burden of proof, and the court is not required to accept as true any affidavit even if it is undisputed. See Bank of America, supra, at 271, 273.

The court may issue a right to attach order (Optional Form AT-120) if the plaintiff shows all of the following: (1) the claim on which the attachment is based is one on which an attachment may be issued (CCP §484.090(a)(1)); (2) the plaintiff has established the probable validity of the claim (CCP §484.090(a)(2)); (3) attachment is sought for no purpose other than the recovery on the subject claim (CCP §484.090(a)(3); and (4) the amount to be secured by the attachment is greater than zero (CCP §484.090(a)(4)).

A claim has “probable validity” where it is more likely than not that the plaintiff will recover on that claim. CCP §481.190. In determining this issue, the court must consider the relative merits of the positions of the respective parties. Kemp Bros. Construction, Inc. v. Titan Electric Corp., (2007) 146 Cal.App.4th 1474, 1484. The court does not determine whether the claim is actually valid; that determination will be made at trial and is not affected by the decision on the application for the order. CCP §484.050(b).

Except in unlawful detainer actions, the amount to be secured by the attachment is the sum of (1) the amount of the defendant’s indebtedness claimed by the plaintiff, and (2) any additional amount included by the court for estimate of costs and any allowable attorneys’ fees under CCP section 482.110. CCP §483.015(a); Goldstein v. Barak Construction, (2008) 164 Cal.App.4th 845, 852. This amount must be reduced by the sum of (1) the amount of indebtedness that the defendant has in a money judgment against plaintiff, (2) the amount claimed in a cross-complaint or affirmative defense and shown would be subject to attachment against the plaintiff, and (3) the value of any security interest held by the plaintiff in the defendant’s property, together with the amount by which the acts of the plaintiff (or a prior holder of the security interest) have decreased that security interest’s value. CCP §483.015(b). A defendant claiming that the amount to be secured should be reduced because of a cross-claim or affirmative defense must make a prima facie showing that the claim would result in an attachment against the plaintiff.

Before the issuance of a writ of attachment, the plaintiff is required to file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action. CCP §489.210. The undertaking ordinarily is $10,000. CCP §489.220. If the defendant objects, the court may increase the amount of undertaking to the amount determined as the probable recovery for wrongful attachment. CCP §489.220. The court also has inherent authority to increase the amount of the undertaking sua sponte. North Hollywood Marble Co. v. Superior Court, (1984) 157 Cal.App.3d 683, 691.

C. Statement of Facts

1. Plaintiff’s Evidence

Borrower was originally established in March 2016 by Chu, who has a 90% ownership share in it. Chu was and still is the Borrower’s Managing Member. Tam Decl. ¶6. Borrower was formed for the specific purpose of acquiring commercial real estate in Independence, Missouri, and of owning and operating a franchised motel known as Best Western Truman Inn (the “Collateral”). Tam Decl. ¶6. Chu, along with family members, have been partners in the hospitality arena and have shared ownership interests in Best Western franchises in Indiana, Texas, Missouri and Iowa. Chu has been and still is involved in the day-to-day management and control of Borrower’s business affairs. Tam Decl. ¶6.

a. The SBA Loan

On June 27, 2016, Bank, as lender, and Independence, as borrower, entered into the SBA Loan Agreement. Tam Decl. ¶7, Ex. 1. In reliance thereof, on June 27, 2016, Independence executed and delivered the SBA Note for the sum of $2,155,000, exclusive of interest, for value received, and as modified on or about May 29, 2017 pursuant to a written Modification to Note. Tam Decl. ¶7, Ex. 2.

Pursuant to the terms of the SBA Note, Borrower promised to repay the principal amount of $2,155,000, together with interest on the unpaid outstanding principal balance, and other charges as more particularly set forth in said SBA Note, payable in monthly installments beginning one month from the month of initial disbursement and continuing monthly thereafter on the first calendar day of each month, until July 1, 2041 when the entire unpaid balance due under the terms of the SBA Note shall be due and payable. Tam Decl. ¶8, Ex. 2.

The interest rate on the SBA Note is subject to change from time to time based on changes in an independent index which is the daily Wall Street Journal Prime Rate (“Index”) plus 2.25% over the Index. The SBA Note further provides that should any payment not be paid within ten days of its due date, Borrower shall pay a late charge of up to 5.00% of the unpaid portion of the regularly scheduled payment. Tam Decl. ¶9, Ex. 2.

On June 27, 2016, Chu executed and delivered to Bank her written Unconditional Guarantee (“SBA Guaranty”). Tam Decl. ¶11, Ex. 3. Pursuant to the terms of the SBA Guaranty, Chu jointly and severally guaranteed to Bank the full and punctual payment, performance and satisfaction of the indebtedness of the Borrower, then existing or thereafter arising or acquired. Tam Decl. ¶11, Ex. 3. The loan made to Borrower constitutes credit as defined in the SBA Guaranty and was granted in reliance upon Chu’s obligation. Tam Decl. ¶11, Ex. 3.

As the member and manager of Borrower, Chu may enter into any agreements of any nature with Plaintiff on Borrower’s behalf. Tam Decl. ¶12. On June 27, 2016, Borrower provided to Bank its Limited Liability Company Resolution to Borrow/Grant Collateral bearing Chu’s signature. Tam Decl. ¶12, Ex. 4. Chu executed the SBA Loan Documents as the authorized signer for and on behalf of Borrower and also executed the SBA Guarantee in her individual capacity. Tam Decl. ¶12, Exs. 3, 4.

Events of monetary and non-monetary defaults under the SBA Loan Documents have occurred and continue to occur, including but not limited to: (a) Borrower’s failure to make the payment due on June 1, 2019, or any subsequent payment due thereafter; (b) a material adverse change in Borrower’s financial condition; and (c) Bank in good faith believes itself insecure. Tam Decl. ¶13. Pursuant to the SBA Loan Documents, Bank accelerated the unpaid balance due on the SBA Note and made demand upon Borrower and Chu for payment, but Borrower and Chu failed and refused and continue to fail and refuse to pay the sums due. Tam Decl. ¶13.

As of August 8, 2019, there was and still is owing from Independence and the Guarantors, jointly and severally, in accordance with the terms of SBA Note and SBA Guaranty the principal sum of $2,053,613.50, together with unpaid accrued interest from April 11, 2019 (date interest paid to) of $37,499.54 and late charges of $2,421.42. Interest continues to accrue at the daily rate of $436.04. Tam Decl. ¶15, Ex. 5.

The SBA Loan Documents and the SBA Guaranty, at section 9, provide that Borrower and Chu agree to pay all of Bank’s costs and expenses, including Bank’s attorneys’ fees and legal expenses, incurred in connection with the enforcement thereof. Bank has been required to retain the law firm of Buchalter, A Professional Corporation, to enforce its rights herein. Tam Decl. ¶16.

The SBA Guaranty provides, at Section 6, for certain waivers, including but not limited to, Chu’s waiver of any right to require Bank to proceed against Borrower, or any other guarantor, before proceeding against her, and further provides that Chu waives any right to require Bank to proceed against any collateral that secures Borrower’s obligation before proceeding against Chu. Tam Decl. ¶17.

b. The Non-SBA Loan

On June 27, 2016, Bank, as lender, and Independence, as borrower, entered into the Loan Agreement. Tam Decl. ¶19, Ex. 6. In reliance thereof, on June 27, 2016, Independence executed and delivered to Bank the Note for the sum of $940,000, exclusive of interest, for value received. Tam Decl. ¶19, Ex. 7.

Pursuant to the terms of the Note, Borrower promised to repay to Plaintiff the principal amount of $940,000, together with interest on the unpaid outstanding principal balance, and other charges as more particularly set forth in said Note, payable in monthly installments beginning August 10, 2016, until July 10, 2026, when the entire unpaid balance due shall be due and payable. Tam Decl. ¶20, Ex. 7.

On June 27, 2016, Chu executed and delivered to Bank her written Commercial Guaranty (“Guaranty”), for value received. Tam Decl. ¶22, Ex. 8. Pursuant to the terms of the Guaranty, Chu, jointly and severally, guaranteed to Bank the full and punctual payment, performance and satisfaction of Independence’s indebtedness to Bank, then existing or thereafter arising or acquired. Tam Decl. ¶22, Ex. 8. The loan evidenced by the Note constitute credit as defined in the Guaranty and was granted to Independence in reliance upon the obligations of Chu. Tam Decl. ¶22, Ex. 8.

Chu executed the Loan Documents as the authorized signer for and on behalf of Borrower and further that Chu executed the Guaranty in her individual capacity. Tam Decl. ¶23, Exs. 8, 9.

Events of monetary and non-monetary defaults under the Loan Documents have occurred and continue to occur, including but not limited to, (a) Borrower’s failure to make the payment due on June 10, 2019, or any subsequent payment due thereafter; (b) a material adverse change in the Borrower’s financial condition; and (c) Bank in good faith believes itself insecure. Tam Decl. ¶24.

Pursuant to the terms of the Loan Documents, Bank accelerated the unpaid balance due on the Note and made demand upon Borrower and Chu for payment, but Borrower and Chu failed and refused and continue to fail and refuse to pay the sums due. Tam Decl. ¶24.

There is now owing from Independence and the Guarantors, jointly and severally, the principal sum of $893,643.39, together with unpaid accrued interest from May 14, 2019 (date interest paid to) of $17,274.42. Interest continues to accrue at the daily rate of $186.18. Tam Decl. ¶26, Ex. 10.

The Loan Documents and Guaranty, at Page 3, provide that Borrower and Chu agree to pay all of Bank’s costs and expenses, including Bank’s attorneys’ fees and legal expenses, incurred in connection with the enforcement thereof. Bank has been required to retain the law firm of Buchalter, A Professional Corporation, to enforce its rights herein. Tam Decl. ¶27.

The Guaranty provides, at Page 2, for certain waivers, including but not limited to, Chu’s waiver of any right to require Bank to proceed against Borrower, or any other guarantor, before proceeding against her, and further provides that Chu waives any right to require Bank to proceed against any collateral that secures Borrower’s obligation before proceeding against Chu. Tam Decl. ¶28.

2. Defendants’ Evidence

Although Chu is an investor in Borrower, she does not consider it to be her “trade, business or profession”, but rather an investment. Chu Decl. ¶3. Borrower has engaged a local management company that runs the operation. Chu Decl. ¶3. Chu does communicate with the management on occasion concerning operations and review the financials but has received no income whatsoever from Borrower or the Collateral directly since 2016. Chu Decl. ¶3.

The hotel has been struggling for more than a year and has not been profitable since 2016. Chu Decl. ¶3. In the past few years, Borrower has been a drain on Chu’s resources and her family and Chu have infused money into the property in an effort to keep it operating. Chu Decl. ¶3.

The Collateral is currently being actively marketed for sale and Chu believes that it will be sold within a matter of months. Chu Decl. ¶4. The proceeds of any sale are the only means Chu has to substantially pay down the debt at issue in this litigation. Chu Decl. ¶4. The Collateral remains in the possession and control of the Borrower. Chu Decl. ¶4.

Chu and the other investors have attempted to work with Bank on potential resolutions to avoid litigation, including offering to cooperate with Bank in taking over operations of the Collateral, the appointment of a third party or receiver take over operations, or to diligently move toward a sale in a non-distressed manner in order to maximize proceeds and determine the amount of any deficiency. Chu Decl. ¶5. Bank has largely refused to work with Chu and the other investors. Chu Decl. ¶5.

Chu’s family would be severely harmed by any pre-judgment attachment resulting in any levy against their personal assets because their current earnings are required to maintain a standard of living and to pay their current liabilities as they become due. Chu Decl. ¶7. Chu believes she has no assets subject to attachment, as her sole income is paid earnings from her job as a registered dietitian and her sole real property is her marital homestead. Chu Decl. ¶7. Chu does not actively conduct any other trade, business, or profession from which she receives any steady or consistent income. Chu. Decl. ¶7.

Chu does not possess any assets in any category of property that Bank is seeking for attachment. Chu Decl. ¶8. The monthly expenses for Chu and her family exceed their collective income and they have been forced by the instant litigation to incur additional expenses. Chu Decl. ¶11. Chu also anticipates additional expenses as they are expecting another child. Chu Decl. ¶11.

Chu’s declared homestead is heavily encumbered, and she has no intention or ability to transfer her home during litigation. Chu Decl. ¶12.

3. Reply Evidence

On August 6, 2019, Bank’s counsel, Barry A. Smith (“Smith”), participated in a phone call that included Chu, her husband, and their counsel, John Smaha (“Smaha”). Smith Decl. ¶2. Smith advised them that Bank would be filing a lawsuit, and the parties discussed maintenance of the Collateral. Smith Decl. ¶2. In a subsequent call, Smaha indicated that the prior on-site hotel management company was inept and that Chus decided to hire a replacement, Noble Hospitality, in July 2019 as a replacement. Smith Decl. ¶2.

In subsequent communications with defense counsel, Smith reminded Smaha that the Chu family had previously hired Amber Hotel Company (“Amber Hotel”) as the real estate broker for other of their hotel properties, and Bank would not object to the same broker to market and sell the Collateral. Smith Decl. ¶3. On September 16, 2019, Chu retained Amber Hotel as her broker for the Collateral. Smith Decl. ¶3. Steve Post is the president of Amber Hotel and provided Smith with a copy of the Listing Agreement signed by Chu. Smith Decl. ¶3, Ex. A. Smith compared Chu’s signature on the Listing Agreement with other known examples of her signature on the subject loan documents and verifications of pleadings in the present action, and they appear to be the same and genuine. Smith Decl. ¶3.

Bank is not directing Amber Hotel’s work or making decisions as to the marketing or sale of the Collateral. Smith Decl. ¶4. To date, the Collateral has not yet sold and based upon the valuations that Post has discussed with Smith, there will be a deficiency balance on the loan owed by the borrower when the property does sell. Smith Decl. ¶4.

D. Analysis

Plaintiff Bank seeks a right to attach order against Chu in the amount of $3,035,814.84, which includes estimated costs of $1,000, and estimated attorney fees of $30,362.57.

1. A Claim Based on a Contract

Bank’s claim is based on the SBA Guaranty and the Guaranty, which are express written contracts between Bank and Chu under which Chu is obligated to satisfy the indebtedness of Borrower to Bank. Tam Decl. Exs. 3, 8. Bank has shown that its claim is based on a contract.

2. An Amount Due That is Fixed and Readily Ascertainable

A claim is “readily ascertainable” where the damages may be readily ascertained by reference to the contract and the basis of the calculation appears to be reasonable and definite. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc., (2004) 115 Cal.App.4th 537, 540-41. The fact that the damages are unliquidated is not determinative. Id. But the contract must furnish a standard by which the amount may be ascertained and there must be a basis by which the damages can be determined by proof. Id. (citations omitted).

Bank provides the SBA Guaranty and the Guaranty, which contains the terms and conditions of payment as well as provisions demonstrating Bank’s entitlement to payment. Tam Decl. Exs. 3, 8. Bank provides the relevant invoices and cost summaries that reflect the amount owed by Chu, which demonstrate an amount of $2,053,613.50, together with unpaid accrued interest from April 11, 2019 (date interest paid to) of $37,499.54 and late charges of $2,421.42 due and owing pursuant to the SBA Guaranty, and $893,643.39, together with unpaid accrued interest from May 14, 2019 (date interest paid to) of $17,274.42 due and owing pursuant to the Guaranty. Tam Decl. Exs. 5, 10.

The amount due under the SBA Guaranty and the Guaranty is fixed and readily ascertainable.

3. Probability of Success

Bank asserts a probability of success on its claim for breach of the Guaranties because it has provided the relevant documentation and because Chu’s obligations are not secured by real or personal property and Bank has no security interest in any real or personal property of Chu to secure the Guaranties. App. at 9.

Chu asserts that the instant application is premature because it arises from a claim secured by an interest in real property, the Collateral. Opp. at 6. Chu asserts that the Collateral is a substantial property that remains unliquidated and that any deficiency from the sale of the Collateral has yet to be determined. Opp. at 6-7. Chu argues that the court should refrain from granting attachment pending liquidation and final sale of the Collateral. Opp. at 7.

Chu’s argument is unavailing. As Bank correctly notes (App. at 6, 9; Reply at 7), a guaranty is an obligation separate and independent from that binding the principal debtor, and suit may be maintained upon it without reference to any proceeding against the principal debtor or the security. Coppola v. Superior Court, (1989) 211 Cal.App.3d 484, 865-66; Eisendrath v. Bank of America, (1953) 118 Cal.App.2d 434, 438. Furthermore, both Guaranties contain provisions that confirm this separate obligation and explicitly waive any defense based on or requirement that Bank first proceed against any collateral, as well as all rights and defenses that Chu may have because Borrower’s obligations are secured by real or personal property. App. at 6-7; Reply at 7-8; Tam Decl. Exs. 3, p.2; 8, p.2. The application is not premature and the fact that the Collateral has not yet been liquidated has no bearing on Bank’s ability to pursue the instant application based on Chu’s Guaranties.

Bank also claims estimated costs of $1,000 and attorney fees of $30,362.57 but fails to support these amounts with an attorney declaration and they are denied.

5. Attachment is Based on a Commercial Claim

If the action is against a defendant who is a natural person, an attachment may be issued only on a commercial claim which arises out of the defendant’s conduct of a trade, business, or profession. CCP §483.010(c). Consumer transactions cannot form a basis for attachment. CCP §483.010(c); Kadison, Pfaelzer, Woodard, Quinn & Rossi v. Wilson, (1987) 197 Cal.App.3d 1, 4 (action involving trust property was a commercial, not a consumer, transaction).

The conduct of a trade, business, or profession is generally activity “which occupies the time, attention and effort. . . for the purpose of livelihood or profit on a continuing basis.” Nakasone v. Randall, (1982) 129 Cal.App.3d 757, 764 (quoting Advance Transformer Co. v. Superior Court, (1974) 44 Cal.App.3d 127, 134). “The term ‘business,’ therefore, embraces any activity engaged in for profit or for gain. The phrase ‘engaged in business,’ however, generally is held to imply business activity of a frequent or continuous nature.” Id. There is a distinction between one who spends his time and effort in carrying on an activity for livelihood or profit on a continuing basis and one who merely conserves his personal investments. Id.

In Security Pacific National Bank v. Matek, (“Matek”) (1985) 175 Cal.App.3d 1071. In Matek, the defendant was a general partner in the business of retrofitting a fishing vessel who personally borrowed money from the plaintiff bank and tendered the loan proceeds to the partnership. Id. at 1073, 1076. Although the defendant contended that he was a real estate broker and did not spend time on the business, the court found that he “had a voice in many vital partnership affairs” and was actively engaged in the partnership business when he borrowed the money. Id. at 1076-77.

Bank’s claim for attachment is based on the Guaranties, which are commercial agreements. Chu is the 90% owner and Managing Member of Borrower and was, and still is, engaged in the ownership, management and operation of Borrower’s business. Tam Decl. ¶¶ 6, 12, 23, Exs. 4, 9. She signed SBA Loan Agreement, the SBA Note, Borrower’s resolution to borrow, the Loan Agreement, the Note, and the resolution to borrow the non-SBA Loan. Tam Exs. 1-2, 4, 6-7, 9. She participated in an August 13, 2019 conference call with Bank to discuss Borrower’s indebtedness. Tam Decl. ¶6. She subsequently participated in an August 6, 2019 phone call that included Chu, her husband, their counsel (Smaha), and Bank’s representative in which the parties discussed maintenance of the Collateral. Smith Decl. ¶2. In a subsequent call, Smaha indicated that the prior on-site hotel management company was inept and the Chus decided to hire a replacement in July 2019 Smith Decl. ¶2. On September 16, 2019, Chu retained Amber Hotel as her broker to sell the Collateral, and her signature is on the Listing Agreement. Smith Decl. ¶3, Ex. A.

Chu argues that the claim does not arise out of her conduct of a trade, business, or profession. Opp. at 7-8. Chu asserts that she is a dietician at a university who invested in a business and guaranteed an SBA loan for that purpose. She was not engaged in the business of guaranteeing for consideration the debts of others, and her involvement with Borrower was not frequent or continuous and did not provide her with a livelihood or any distribution since 2016. Rather, she invested in a hotel managed for a short period by her father and then an outside professional manager under Bank’s oversight with full cooperation of Borrower. As a result, Chu argues that she was not engaged in a trade, business, or profession within the meaning of CCP section 483.010(c). Opp. at 9.

The court does not agree. Chu focuses on the wrong business when she contends that she does not manage the hotel. The question is her involvement in Borrower. She is Borrower’s 90% owner and managing member. She admits that she is involved in the management of Borrower. Chu Decl. ¶3. Chu also admits to infusing funds into the hotel owned by Borrower. Chu Decl. ¶3. The fact that Chu has a separate, primary occupation and has not profited from her involvement with Borrower is irrelevant for the purposes of attachment. Chu’s conduct qualifies business of a frequent or continuous nature. She is the majority owner of a business to which Bank extended credit in reliance on her Guaranties, she occupied herself in Borrower’s business on a continuing basis by providing credit for, and management to, Borrower. Furthermore, she hired a new management company for the Collateral and signed the Listing Agreement to sell it. Smith Decl. ¶¶ 2, 3, Ex. A.

As such, Chu is at the commercial end of the attachment law spectrum. She conducted a trade, business, or profession under CCP section 483.010(c), and Bank’s claim against Chu is a commercial claim.

6. Defendants’ Property Is Adequately Described

Where the defendant is a natural person, the description of the property must be reasonably adequate to permit the defendant to identify the specific property sought to be attached. CCP §484.020(e). Although the property must be specifically described, the plaintiff may target for attachment everything the individual defendant owns. Bank of America v. Salinas Nissan, Inc., (1989) 207 Cal.App.3d 260, 268.

Bank claims entitlement to attach the property of Chu as follows: interests in real property, specifically the property located at 6242 Pasatiempo Avenue, San Diego, CA 92120 (the “Property”), accounts receivable, chattel paper, general intangibles, equipment of a going business, farm products, inventory of a going business, final money judgments arising out of the conduct by the defendant of a trade, business, or profession, money on the premises where a trade, business, or profession is conducted, negotiable documents of title, instruments, securities, and minerals or the like. App. at 10.

The property to be attached is adequately described.

7. Claims of Exemption

a. Exemption Law

All property exempt from enforcement of a money judgment is also exempt from attachment. CCP §487.020(a).[2] So are wages and any property “necessary for support of the defendant or his or her family.” CCP §487.020(b), (c).

If the defendant claims that any personal property described in the application is exempt from attachment, the defendant may include that claim in the notice of opposition to the right to attach order (CCP §484.060(a), or may file and serve a separate claim of exemption for the property. CCP §484.070(b). If the defendant does not do either, the claim of exemption will be barred in the absence of a showing of a change in circumstances occurring after the expiration of the time for claiming exemptions. CCP §484.070(a); Bank of America v. Salinas Nissan, Inc., (“Bank of America”) (1989) 207 Cal.App.3d 260, 268 (plaintiff’s failure to oppose exemption claim concedes its propriety). This waiver applies only to personal property. A homestead exemption for a dwelling is not waived by failing to make a claim for exemption. Martom v. Aboyan, (1983) 148 Cal.App.3d 826, 831.

The defendant also may obtain a determination at the hearing whether real or personal property not described in the application or real property described in the application is exempt from attachment by including an exemption claim for such property in the notice of opposition/separate claim of exemption. The defendant’s failure to claim such property as exempt does not preclude the defendant from raising the issue at a later time. CCP §484.070(b). The claim of exemption shall (1) describe the property claimed to be exempt, and (2) specify the statute section supporting the claim. CCP §484.070(c). The claim of exemption shall be accompanied by an affidavit supporting any factual issues raised by the claim and points and authorities supporting any legal issues raised. CCP §484.070(d). The defendant must file and serve the claim of exemption and supporting papers not less than five court days before the date set for the hearing. CCP §484.070(e).

If the plaintiff opposes the claim of exemption, the plaintiff shall file and serve a notice of opposition to the claim of exemption, accompanied by an affidavit and memorandum of points and authorities on any legal issues, not less than two days before the date set for the hearing. If the plaintiff does not file and serve a notice of opposition, no writ of attachment shall be issued as to the property claimed to be exempt. Bank of America, supra, 207 Cal.App.3d at 270 (plaintiff’s failure to oppose exemption claim conceded its propriety). If the defendant claims an exemption to all of the property described in the plaintiff’s application and the plaintiff does not file and serve a notice of opposition, no hearing shall be held, no right to attach order or writ of attachment shall issue, and any temporary protective order previously issued shall immediately expire. CCP §484.070(f).

If the plaintiff files and serves a notice of opposition to the claim, the defendant has the burden of proving that the property is exempt from attachment. CCP §484.070(g).

b. Homestead Exemption

Chu argues that her residence is her Declared Homestead and is exempt from attachment pursuant to CCP section 704.930.[3] Opp. at 10; Chu Decl. ¶8(a). To the extent that Chu is claiming a homestead exemption pursuant to CCP section 704.720, the following analysis applies.

A homestead exemption exists under certain conditions. The amount of the homestead exemption is $100,000 if the judgment debtor lives in the home at the time of the attempted sale with at least one other member of the family unit. CCP §704.730(a)(1).

Chu provides evidence that she has resided continuously at her residence. Chu Decl. ¶9. Chu’s husband and son live with her at the residence. Ibid. Chu qualifies for a $100,000 homestead exemption. As Bank correctly notes (Reply at 10) the recording of a homestead exemption does not affect the plaintiff’s right to attach the homestead. CCP §487.025. The homestead exemption applies post-judgment, and even then will not prevent sale of Chu’s home unless there are insufficient bids to satisfy all encumbrances and the $100,000 exemption. CCP §§ 487.025, 704.800.

c. Necessities of Life Exemption

Chu also asserts a right to exemption pursuant to CCP section 487.020, which provides an exemption for property necessary for the support of a defendant or the family of a defendant. Opp. at 10-11.

Property which is necessary for the support of a defendant who is a natural person or the family of such defendant supported in whole or in part by the defendant” may be exempt. Code CCP §487.020(b). All property of the defendant is considered when determining the needs of the defendant, his spouse, and his dependents. CCP §703.115. Where property is claimed exempt pursuant to a provision exempting property necessary of the support of the claimant and the claimant’s family, “the claim of exemption shall include a financial statement” which “shall be executed under oath by the [claimant]…” CCP §703.530. The financial statement must detail the names, ages, relationships, earnings, income, assets, and outstanding obligations of all members of the family. CCP §703.530.

Chu asserts that her household’s monthly expenses exceed its combined income and that they rely on dwindling savings and loans to fund routine expenses. Chu Decl. ¶11. Chu fails to otherwise support her claim of exemption with any analysis.

Chu also fails to provide sufficient documentary evidence establishing that her residence and other assets are necessary for the support of herself or her family. Although Chu and Bank refer to a concurrently filed Financial Statement (Opp. at 11; Reply at 12), the court does not have this document. To the extent that Chu’s summary of her and her husband’s monthly income in her declaration (Chu Decl. ¶¶ 9-10) is intended to serve as a financial statement, it does not contain all the information required by CCP section 703.530, such as the assets and outstanding obligations of Chu and all members of her family. Nor is there a detailed financial statement from Chu’s husband beyond her claim that he makes $1,000 a month as an instructor with the Wave Volleyball Club. Chu Decl. ¶9.

Chu has not sufficiently supported her claim for a necessities of life exemption.

d. Other Statutory Exemptions

Chu asserts that all her income is exempt from attachment pursuant to CCP section 487.020(c). Compensation payable by an employer to an employee for personal services performed by such employee, whether denominated as wages, salary, commission, bonus, or otherwise, is exempt from attachment. CCP §487.020(c); CCP §706.011(b). Chu’s income from her occupation as a registered dietician with the UCSD Athletics Department is therefore exempt from attachment. However, Bank disavows any attempt to attach Chu’s earnings until final judgment. Reply at 12.

Chu’s Notice of Opposition also claims an exemption for the motor vehicles of her family pursuant to CCP §704.010, but fails to provide any details regarding the number of vehicles or their value. The court therefore cannot determine the extent of an exemption. In any case, Bank does not seek attachment of either Chu’s wages or motor vehicles. Reply at 13.

As part of her necessities of life exemption, Chu’s Notice of Opposition contends that the balance of her checking accounts and savings accounts are exempt. Although not exempt for necessities of life, these accounts are exempt in the aggregate amount of $1000. CCP §487.010(b)(7).

E. Conclusion

Bank’s application for a right to attach order against Chu is granted in the amount of $3,004,452.27. Chu has a $100,000 homestead exemption for her residence which would apply post-judgment. She also has a $1000 aggregate exemption in deposit accounts. No writ of attachment shall issue until Bank posts a $10,000 bond.

[1] Chu failed to lodge a courtesy copy of her opposition brief in violation of the Presiding Judge’s General Order Re: Mandatory Electronic Filing. Her counsel is admonished to provide courtesy copies in all future filings.

[2]The property exempt from enforcement of a money judgment is listed in CCP section 704.010 et seq.

[3] This statute only states the requirement for a homestead declaration, it does not provide for any exemption.

Filed 12/10/19 P. v. Aldave CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

GABRIEL WILLIAMS ALDAVE, EDER ROJAS AND CARLOS TOVAR-RODRIGUEZ,

Defendants and Appellants.

G055968

(Super. Ct. No. 17CF2746)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed as modified.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant Gabriel Williams Aldave.

Tanya Dellaca, under appointment by the Court of Appeal, for Defendant and Appellant Eder Rojas.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant Carlos Tovar-Rodriguez.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

After a jury convicted defendants Gabriel Williams Aldave, Eder Rojas and Carlos Tovar-Rodriguez (collectively, defendants) of battery with serious bodily injury (Pen. Code, § 243, subd. (d)), the trial court sentenced defendants to prison terms of six, 11 and 11 years, respectively. The Rojas and Tovar-Rodriguez sentences each included a five-year prior serious felony conviction enhancement pursuant to section 667, subdivision (a)(1) (667(a)(1) enhancement), based in part on a separate jury finding that defendants each personally inflicted “serious bodily injury” on the victim in this case.

Rojas and Tovar-Rodriguez contend the trial court erroneously imposed the 667(a)(1) enhancements because the jury was not properly instructed on, and thus never made, the predicate factual finding—that they personally inflicted “great bodily injury,” rather than “serious bodily injury,” on the victim. They also contend that if we disagree we must remand to the trial court so it may exercise its newly authorized discretion to strike the 667(a)(1) enhancements for sentencing purposes pursuant to section 1385.

Aldave makes the same instruction error argument even though his sentence did not include a 667(a)(1) enhancement. He also argues that one of the one-year prison prior enhancements the court imposed on him under section 667.5, subdivision (b) (667.5(b) enhancement), must be stricken because it is not authorized by the statute. And in supplemental briefing allowed by this court, he contends all the 667.5(b) enhancements must be stricken because of recently adopted legislation.

We conclude the instructional error, if any, was harmless beyond a reasonable doubt. As to defendants’ remaining arguments, we disagree remand concerning the Rojas and Tovar-Rodriguez 667(a)(1) enhancements is necessary given the record before us, but we agree all of Aldave’s 667.5(b) enhancements must be stricken. We modify and affirm the judgment accordingly.

FACTS

Defendants were each charged with one count of battery with serious bodily injury (§ 243, subd. (d)), plus an allegation that each personally inflicted serious bodily injury on the victim. The information also alleged: as to Aldave, five 667.5(b) enhancements; as to Rojas, one prior strike, one 667(a)(1) enhancement, and one 667.5(b) enhancement; and as to Tovar-Rodriguez, one prior strike, two 667(a)(1) enhancements, one 667.5(b) enhancement, and one crime-bail-crime enhancement (§ 12022.1, subd. (b)).

A jury found defendants guilty of the battery with serious bodily injury, and found true that they each “personally inflicted serious bodily injury on [the victim], who was not an accomplice.” Defendants waived jury on the remainder of the prior conviction enhancement allegations and the court ultimately found them all to be true, with the exception of one of Aldave’s 667.5(b) enhancement priors, which the parties agreed was pending appeal.

The court imposed the following sentences: six years for Aldave, consisting of three years for the charged offense and three one-year terms for three of the 667.5(b) enhancements; 11 years for both Rojas and Tovar-Rodriguez, consisting of three years for the charged offense, doubled to six years due to their prior strikes, plus the five-year 667(a)(1) enhancement.

Defendants timely appealed.

DISCUSSION

Defendants challenge the jury’s serious bodily injury finding and the trial court’s imposition of the five-year 667(a)(1) enhancements for both Rojas and Tovar-Rodriguez. Rojas and Tovar-Rodriguez separately implore us to remand so the trial court may exercise its “new” discretion to strike their 667(a)(1) enhancements. Aldave argues one of his one-year 667.5(b) enhancements must be stricken because it violates the applicable statute, and also argues all of his one-year 667.5(b) enhancements must be stricken in light of recently adopted legislation. The Attorney General concedes the latter points concerning the one-year enhancements, and we agree, but we find no merit to the remaining arguments.

A. Serious felony allegations and 667(a)(1) enhancements

Rojas and Tovar-Rodriguez assert their five-year 667(a)(1) enhancements must be stricken because the trial court failed to charge the jury with determining the factual basis for the enhancements—that the battery with serious bodily injury conviction is a “serious felony” because they each personally inflicted great bodily injury on the victim in this case. Aldave makes the same underlying legal argument, but contends that in his case the remedy for the instruction error is to strike one of the jury’s findings.

Though we summarize their respective arguments, we do not decide them on the merits because the alleged error, if any, was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)

“‘[F]or criminal sentencing purposes in this state, the term “serious felony” is a term of art. Severe consequences can follow if a criminal offender, presently convicted of a felony, is found to have suffered a prior conviction for a serious felony.’ [Citation.] If the present conviction is also for a serious felony, ‘the offender is subject to a five-year enhancement term to be served consecutively to the regular sentence.’ [Citation.]” (People v. Navarette (2016) 4 Cal.App.5th 829, 842, fn. omitted; see § 667, subd. (a)(1).)

“[S]ection 1192.7, subdivision (c) defines which offenses qualify as serious felonies. While most of the categories of serious felonies set forth in subdivision (c) are based on defined offenses, subdivision (c)(8) . . . include[s] as serious felonies ‘any’ felony in which the defendant ‘personally inflicts great bodily injury’ on a nonaccomplice . . . . [Citation.] Thus, while a robbery, rape or murder conviction is ipso facto a serious felony conviction, a conviction for an offense which does not fall within any of the subsections of subdivision (c) other than[, inter alia,] subdivision (c)(8) . . . is not a serious felony conviction unless it can be established that the offender . . . personally inflicted great bodily injury on a non-accomplice in the commission of the offense.” (People v. Yarbrough (1997) 57 Cal.App.4th 469, 474.)

Here, the information alleged that during commission of the battery, each defendant “personally inflicted serious bodily injury on [the victim] . . . within the meaning of [s]ections 667 and 1192.7 . . . .” Consistent with this allegation and the prosecution’s proposal, and over defendants’ objection, the trial court instructed the jury with a modified version of CALCRIM No. 3160, substituting the term “serious bodily injury for the term “great bodily injury” as follows: “If you find the defendant guilty of the crime charged in Count 1 [(battery)], you must then decide whether the People have proved the additional allegation that the defendant personally inflicted [s]erious bodily injury on [the victim] in the commission of that crime.” The remainder of the instruction employed the standard CALCRIM No. 3160 language, except the trial court substituted the term “great bodily injury” with “serious bodily injury” throughout and omitted the definition of “great bodily injury.”

Defendants claim error because section 1192.7, subdivision (c)(8), refers to “great bodily injury[,]” but that term did not appear anywhere in the jury instructions. Instead, as noted above, the instructions discussed and defined serious bodily injury, which defendants contend has a materially different meaning, as evidenced in sections 243 (battery) and 12022.7 (great bodily injury enhancement). The former defines “serious bodily injury” for purposes of that section as “a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement.” (§ 243, subd. (f)(4).) The latter defines “great bodily injury” for purposes of that section as “a significant or substantial physical injury.” (§ 12022.7, subd. (f).)

The Attorney General contends “serious bodily injury” and “great bodily injury” have identical meanings in this context. Thus, from the Attorney General’s perspective, the jury’s finding each defendant personally inflicted serious bodily injury was sufficient for the court to conclude the present felony was a serious felony within the meaning of section 1192.7, subdivision (c)(8).

The issue arises here, at least in part, because section 1192.7 does not define “great bodily injury[,]” and no other statute clearly supplies the intended meaning. On one hand, case law addressing various 667(a)(1) enhancement situations appears to support the Attorney General’s position there is no meaningful difference between the terms in certain contexts. (See People v. Burroughs (1984) 35 Cal.3d 824, 831 [“‘“[s]erious bodily injury” and “great bodily injury” are essentially equivalent elements’”], abrogated on other grounds as stated in People v. Bryant (2013) 56 Cal.4th 959, 966-967; People v. Johnson, supra, 244 Cal.App.4th at pp. 389-396; People v. Arnett (2006) 139 Cal.App.4th 1609, 1613-1616; People v. Moore (1992) 10 Cal.App.4th 1868, 1870 [“[A] felony battery committed by means of ‘serious bodily injury’ (Pen. Code, § 243, subd. (d)) may be used to enhance a sentence under the ‘serious felony’ provisions of . . . sections 667, subdivision (a), because the term ‘serious bodily injury’ is essentially equivalent to and synonymous with the term ‘great bodily injury,’ as required by . . . section 1192.7, subdivision (c)(8)”]; see also People v. Hawkins (1993) 15 Cal.App.4th 1373, 1376 [concluding great bodily injury is an element of the crime of battery with serious bodily injury].)

On the other hand, the term “serious bodily injury” is defined differently for purposes of other statutes (see, e.g., § 243, subd. (f)(4)), and finding it identical in meaning to “great bodily injury” would essentially render every violation of section 243, subdivision (d), a serious felony under section 1192.7. But the Legislature did not separately include that crime in its lengthy list of specific crimes which are automatically considered serious felonies under section 1192.7, subdivision (c). And in construing a statute, we cannot rewrite it or insert what is omitted. (Camarena v. State Personnel Bd. (1997) 54 Cal.App.4th 698, 702.)

We need not decide, however, whether the two terms are synonymous and interchangeable in the present context because the alleged instruction error, if any, was not prejudicial. Defendants characterize the purported error as a complete failure to instruct the jury on the serious felony sentencing factor. However, the only difference between the court’s instruction and the standard instruction was the substitution of “serious bodily injury” for “great bodily injury” and the omission of the latter’s definition. It still instructed on the need for a determination of whether defendants used substantial force and personally inflicted the injury, as well as whether the victim was an accomplice. Thus, the alleged error is more aptly characterized as a failure to instruct on one aspect of a sentencing factor, not a complete failure to instruct.

Like a failure to instruct on an element of a charged offense, a failure to instruct on an element of a sentencing factor is subject to harmless error analysis because it is not structural in nature. (Washington v. Recuenco (2006) 548 U.S. 212, 219-222; People v. French (2008) 43 Cal.4th 36, 52-53; People v. Cabrera (2018) 21 Cal.App.5th 470, 478-479.) Therefore, we consider “‘whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted [factor].’” (People v. Mil (2012) 53 Cal.4th 400, 417.) If we conclude beyond a reasonable doubt the jury’s finding would have been the same absent the alleged error, then it is considered harmless. (Id. at p. 417; Chapman, supra, 386 U.S. at p. 24.)

“‘A fine line can divide an injury from being significant or substantial from an injury that does not quite meet the description.’” (People v. Escobar (1992) 3 Cal.4th 740, 752.) But the evidence in this case and the jury’s serious bodily injury finding lead us to conclude there was no evidence which could rationally lead to rejection of a great bodily injury finding, meaning the alleged instructional error was harmless.

There was considerable evidence concerning the extent of the victim’s injuries. A law enforcement officer who observed the victim immediately after the altercation testified his face was swollen, there was a significant amount of blood, he was missing a tooth and his hands were red. The nurse who treated the victim before he was transported to the hospital made similar observations and noted the victim was complaining of a lot of pain. A hospital emergency room doctor confirmed the facial swelling and missing tooth, and she further observed a lip laceration, a bruised eye and symptoms consistent with a loss of consciousness and a concussion. Medical reports also indicated a rib fracture and a possible jawbone fracture. The victim spent 11 hours in the hospital and was discharged with antibiotics after being treated.

Defendants argue a properly instructed jury could have found a lack of great bodily injury because some of the testimony presented by the prosecution was equivocal and it was unclear whether many of the victim’s injuries resulted from a previous fight. But defendants made those arguments at trial, and the jury necessarily rejected them given its guilty verdicts on the charge of battery with serious bodily injury and its separate finding of personal infliction of serious bodily injury as to all defendants.

B. Discretion to strike 667(a)(1) enhancements

“Effective January 1, 2019, section 1385 was amended to eliminate the prohibition against striking [667(a)(1)] enhancement[s] . . . . [C]ourts now have discretion to strike [those] enhancement[s]. The amendment applies retroactively to all cases not final on its effective date.” (People v. Dearborne (2019) 34 Cal.App.5th 250, 268.) Rojas and Tovar-Rodriguez argue we must remand for the trial court to exercise its new discretion.

It is undisputed the trial court sentenced defendants prior to the effective date of section 1385’s amendment and that the amendment applies retroactively to their cases. (See In re Estrada (1965) 63 Cal.2d 740, 742; People v. Garcia (2018) 28 Cal.App.5th 961, 972-973.) The Attorney General nevertheless contends we need not remand because “the court’s actions and comments during the sentencing proceeding indicate[] that remand would be futile.” We agree.

“Remand is required unless ‘the record shows that the trial court clearly indicated when it originally sentenced the defendant that it would not in any event have stricken [the] enhancement’ even if it had the discretion. [Citations.] In reviewing whether the trial court made such an unequivocal indication, we consider the trial court’s statements and sentencing decisions. [Citations.]” (People v. Franks (2019) 35 Cal.App.5th 883, 892.)

Although the trial court declined to impose the harshest sentence as to both Rojas and Tovar-Rodriguez, its statements and decisions indicate it would not further reduce their sentences, even if it had discretion to do so. The court noted no mitigating factors and many aggravating factors. The aggravating factors included: (1) the battery was three persons against one involving “great violence and bodily harm[,]” with no rational reason for such behavior; (2) it was an “extremely serious” “group beating, bullying in it’s [sic] highest regard in a situation inside a jail where we are expecting to have compliance, not to have people breaking out and creating crimes within the jail”; and (3) the manner in which defendants carried it out “indicated planning, sophistication and professionalism[.]” In addition, the court found Rojas had a history of conduct posing “a serious danger to society[,]” served prior prison terms and was on probation when the battery occurred. Similarly, it found Tovar-Rodriguez served a prior prison term and had a history of dangerous conduct which was increasing in seriousness.

These factors led the court to conclude, among other things, it would not exercise its discretion to grant defendants probation even if they were eligible. In conjunction with that determination, the court emphasized defendants’ “conduct [was] so exceptionally dangerous that for them to be permitted to live within a probation condition in a civilized society . . . would be a total disregard for the meaning and intent of the law surrounding probation.”

Further, in response to Tovar-Rodriguez’s request the court exercised its discretion under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to strike his prior strike conviction, the court clearly expressed doing so would not be appropriate given the circumstances. As the Attorney General points out, the newly authorized discretion under section 1385 to strike the five-year 667(a)(1) enhancements obligates a trial court to consider factors similar to those it considered when it rejected Tovar-Rodriguez’s Romero request. Thus, the trial court’s evaluation of his Romero request speaks beyond what was before the court at that time.

In sum, the record affirmatively demonstrates the trial court was not inclined towards leniency and would not exercise its new discretion to strike the Rojas and Tovar-Rodriguez 667(a)(1) enhancements. Accordingly, we decline to remand for resentencing. (People v. Franks, supra, 35 Cal.App.5th at p. 893.)

C. 667.5(b) enhancements

In the initial round of briefing on appeal, Aldave contends, and the Attorney General concedes, one of his 667.5(b) enhancement terms must be stricken because the trial court improperly imposed two of them for prior convictions occurring on the same day which had resulted in concurrent sentences. We agree. (People v. Jones (1998) 63 Cal.App.4th 774, 747.)

The sentencing adjustment, however, must reach all of the 667.5(b) enhancements imposed on Aldave. In supplemental briefing allowed by this court, Aldave and the Attorney General agree that those enhancements must be stricken due to the passage of Senate Bill 136 (S.B. 136).

Signed by the Governor on October 8, 2019, and effective January 1, 2020, S.B. 136 amends section 667.5, subdivision (b), to eliminate the one-year prior prison term enhancement for most prior convictions. (Sen. Bill No. 136, 2019-2020 Reg. Sess. § 1.) An exception, not applicable here, is made for a qualifying prior conviction on a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b).

Because S.B. 136 will become effective before Aldave’s judgment becomes final, we agree with the parties that the amended law will apply to him retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 744-745 [absent evidence of contrary legislative intent, ameliorative criminal statutes apply to all cases not final when statute takes effect].) Accordingly, all three of Aldave’s 667.5(b) enhancements must be stricken.

DISPOSITION

The judgment is modified as to Aldave to strike all three of the one-year 667.5(b) enhancements, reducing Aldave’s total sentence from six years to three years. The judgment is affirmed as modified. The clerk of the superior court is directed to prepare an amended abstract of judgment concerning Aldave and to forward a certified copy to the Department of Corrections and Rehabilitation.

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.

Filed 12/10/19 P. v. Perera CA4/2

See Concurring Opinion

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

WILBERT PERERA,

Defendant and Appellant.

E069946

(Super.Ct.No. CR64853)

OPINION

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.

Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant Wilbert Perera is a Mexican citizen seeking asylum in the United States because he was kidnapped, tortured, and held for ransom by cartel members in Mexico. To that end, he challenges the trial court’s denial of his motion to set aside his 1995 guilty plea to a robbery count (Pen. Code, § 211 ), an aggravated felony offense that will prevent the granting of his asylum petition. (8 U.S. Code, §§ 1101(a)(43), 1158(b)(2)(B)(i).)

BACKGROUND

Defendant was an infant when he entered the United States from Mexico sometime in 1974. He acquired permanent resident status in 1989.

In 1995, defendant and another man began using abusive language toward customers and an employee of a gas station store, including calling the victim, an elderly white man, “white trash” and calling the black clerk “nigger.” When the victim left the store, defendant and the other man followed him, asking how much money he had. Defendant said he had a gun in the car, and went to retrieve it. When defendant returned, his hands inside his waistband with the butt of a gun in his hand, the other man grabbed the victim’s wallet, ran with it, and then returned it to the victim with the remark, “We could have taken it all, next time remember us Mexicans.”

Defendant was arrested and charged with second degree robbery (§ 211) and three enhancements: committing a hate crime in concert with others (§ 422.75, subd. (b)), personally using a firearm in the commission or attempted commission of a felony (former § 12022.5, sub. (a) & § 1192.7, subd. (c)(8)), and being armed with and personally using a firearm (former § 12022, subd. (a)(1)).

Defendant entered a plea of guilty on the robbery count in exchange for a low-term sentence of two years and the dismissal of the three enhancements. The agreement was set forth in a County of Riverside plea form signed by defendant and his counsel.

Upon his release from prison, defendant lost his permanent resident status and was deported to Mexico in 1998 on account of his conviction on the section 211 count. Not wanting to be separated from his family, he reentered the United States. After his wife left him, he went through a period of drug abuse until he settled down with another woman who was to become his wife and the mother of his second child. He became a dedicated stepparent and father.

In 2013, defendant was again deported to Mexico after being arrested for driving under the influence of alcohol. While living in Tijuana, he was kidnapped, tortured, and held for ransom by cartel members. Fearing for his life, he reentered the United States, turned himself in to immigration authorities, and requested asylum. The United States Department of Homeland Security determined defendant demonstrated a credible fear of torture or persecution. He was released on bond in February 2015, and in May 2016, he was advised of an immigration hearing date of March 8, 2019.

On August 29, 2017, after learning his conviction would render him ineligible for asylum, he filed a motion pursuant to sections 1016.5 and 1473.7 to withdraw his 1995 plea and vacate his conviction on the grounds that he did not understand the consequences of his plea and the court and his counsel had not told him the plea could result in deportation or exclusion from the United States. The reporter’s notes of the 1995 plea had been destroyed because more than 20 years had elapsed since the proceeding but the plea form executed by defendant and the court’s minutes from the 1995 hearing were submitted to the court.

The motion was denied after hearing. Defendant appealed.

DISCUSSION

On appeal, defendant argues the trial court erred when it found the 1995 court properly advised him of the adverse immigration consequences of his plea in accordance with section 1016.5, that his 1995 attorney’s performance had not been deficient, that section 1473.7 was not retroactive, and that his arguments made pursuant to section 1473.7 were not timely. In addition, defendant argues the trial court should have decided his section 1473.7 claim on its merits and in his favor. We will affirm the court’s finding as to section 1016.5 advisement and counsel’s performance. We will reverse the finding that defendant’s section 1473.7 motion was not timely and remand with instructions that a hearing be conducted on the merits of that issue.

I. The 1995 Court Properly Advised Defendant Pursuant to Section 1016.5

Defendant contends that the denial of his section 1016.5 motion requires reversal because he established that the 1995 court did not properly advise him that his plea could have adverse immigration consequences. We do not agree.

Section 1016.5 provides in relevant part that before the trial court accepts a guilty plea, it must advise the defendant on the record that, if defendant is not a citizen, conviction of the charged offense may result in deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. (§ 1016.5, subd. (a).) The advisement need not be given orally but may be recited in a plea form. (People v. Araujo (2016) 243 Cal.App.4th 759, 762.) Substantial compliance with the statute is all that is required. (Ibid.)

If the court fails to advise a defendant who may suffer an adverse immigration consequence as a result of the plea, it must, on the defendant’s motion, vacate the judgment and permit the defendant to withdraw the guilty plea and enter a plea of not guilty. (§ 1016.5, subd. (b).) If there is no record that the court provided the required advisement, it will be presumed that defendant did not receive it. (Ibid.)

To prevail on a section 1016.5 motion, a defendant must establish that the required advisements were not given, that the conviction may result in adverse immigration consequences, and that defendant would not have pled guilty or no contest had the court complied with the statute. (People v. Arriaga (2014) 58 Cal.4th 950, 957-958.)

We review the trial court’s decision on a section 1016.5 motion for abuse of discretion. (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192.) That standard is not a unified one. Rather it varies depending upon the aspect of the ruling under review. (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.) Findings of fact are reviewed for substantial evidence, conclusions of law are reviewed de novo, and the trial court’s application of the law to the facts will be reversed only if it is done in an arbitrary, capricious, or patently absurd manner. (Ibid.)

In this case, the trial court did not abuse its discretion when it denied defendant’s claim made pursuant to section 1016.5 because substantial evidence supports its finding that the 1995 court properly advised defendant that his guilty plea may have adverse immigration consequences, including deportation and exclusion from admission to the United States. Although there is no reporter’s transcript of the hearing, the minute order recites the court’s finding that defendant knew and understood the consequences of his plea. Moreover, the filed-endorsed plea form executed by defendant includes a recital that he understood that, if he is not a United States citizen and he pleads guilty, the plea might have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States. Defendant initialed an acknowledgement that he read and understood that statement. He also signed a statement on the form that the initials are his, and that he read and understood each of the statements he initialed.

In addition, the plea form includes the signature of defendant’s counsel acknowledging his satisfaction that defendant understood his rights, that defendant had an adequate opportunity to discuss his case with counsel, and that defendant understood the consequences of his guilty plea.

Defendant argues that denial of his section 1016.5 claim was error because the trial court’s conclusion that he was properly advised by the 1995 court was almost certainly based upon its mistaken recollection that the 1995 minutes of the plea hearing reflected discussion of immigration consequences. The record does not support that premise. Although the trial court said the 1995 minutes might have mentioned those consequences, its finding that section 1016.5 was satisfied was bottomed on the plea form initialed and executed by defendant.

Defendant also contends denial of his section 1016.5 claim was error because there is no evidence that the 1995 court ensured the advisement was competently explained by counsel or that defendant understood that the warning applied to him. Those contentions are unavailing. Section 1016.5 imposes a duty on the trial court to advise a defendant of immigration consequences and authorizes that court to set aside a plea and vacate a conviction when it fails to fulfill that duty. (People v. Aguilar (2014) 227 Cal.App.4th 60, 71 (Aguilar).) It does not require counsel to give advice. (Ibid.) Nor does it confer jurisdiction on the court to vacate a conviction or set aside a plea based upon counsel’s ineffective assistance with respect to advising a defendant of a plea’s adverse immigration consequences. (Ibid.)

II. Defendant Has Not Established that the Assistance of His 1995 Counsel

Was Ineffective

Although defendant may not bolster his section 1016.5 argument with an ineffective assistance of counsel claim, he properly raised that claim as an independent nonstatutory ground for his motion to withdraw his guilty plea and vacate his conviction. (Aguilar, supra, 227 Cal.App.4th at p. 72.)

To prevail on a claim of ineffective assistance of counsel, a defendant must show that trial counsel’s performance fell below an objective standard of reasonableness as measured against the then prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 688.) The defendant must also establish prejudice by showing it was reasonably probable that a more favorable outcome would have been obtained had counsel not been ineffective. (Id. at pp. 694-695.) We find the trial court did not abuse its discretion when it rejected defendant’s ineffective assistance of counsel claim and, therefore, do not reach the issue of prejudice.

Here, defendant claims the trial court should have found his 1995 counsel was ineffective because counsel failed to ascertain defendant’s status as a noncitizen who needed, but did not receive, advice concerning the adverse immigration ramifications of his plea. We are not persuaded.

First of all, even if counsel knew of defendant’s immigration status, when defendant’s plea was entered in 1995, defense counsel’s duty to a criminal defendant did not include volunteering advice about adverse immigration consequences, which were then considered a noncriminal collateral matter not falling within the ambit of the Sixth Amendment. (Chaidez v. United States (2013) 568 U.S. 342, 347-354.)

Second, there was no reason for defendant’s 1995 counsel to know that defendant was a noncitizen in need of advice concerning immigration consequences. Counsel, who has no recollection of his representation of defendant, speculated that he likely assumed defendant was a citizen if defendant did not need an interpreter (no interpreter was used) and spoke English well (he does).

Moreover, there is no indication that defendant informed his counsel of his noncitizen status even though the importance of disclosing that status and the potential for adverse immigration consequences would have been apparent at least twice in the course of the plea hearing. An opportunity for disclosure was presented when the court gave the section 1016.5 advisement. As explained in Patterson, one of the purposes of the section 1016.5 advisement is to alert a noncitizen defendant to ask counsel about the risk of immigration consequences. (People v. Patterson (2017) 2 Cal.5th 885, 896-897.) Another opportunity for defendant to disclose his noncitizen status to counsel and seek advice with respect to the consequences of his plea was presented when defendant was reviewing and executing the plea form with the assistance of his counsel. That form includes a notice to defendants of the potential impact of a guilty plea on a noncitizen’s immigration status. Even if counsel had not gone into detail but “glossed over” the immigration consequences portion of the plea form as he speculates may have happened, the language in the plea form clearly signaled the importance to defendant of revealing to counsel his citizenship status. Defendant—who grew up in the United States, has a high school education, and speaks English very well—indicated by his initials and signature that he had read and understood that his conviction may result in deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.

Defendant’s efforts to establish that counsel had a duty to inquire about his citizenship status are unavailing. He points to Justice Mosk’s dissent in In re Resendiz, which states that section 1016.5 requires counsel to ask a defendant if he is a citizen. (In re Resendiz (2001) 25 Cal.4th 230, 255 (conc. & dis. Opn. of Mosk, J.) (Resendiz), abrogated in part in Padilla v. Kentucky (2010) 559 U.S. 356, 370-371 (Padilla).) Even if Resendiz had been decided before defendant’s plea instead of six years after, Justice Mosk’s dissent would not have imposed on counsel an affirmative duty to ask defendant whether he was a United States citizen. (See People v. Lopez (2012) 55 Cal.4th 569, 585 [dissenting opinions are not binding precedent].)

Defendant also posits that his 1995 counsel had a duty to inquire about his citizenship status because, by then, California attorneys had been put on notice of the need to provide counseling concerning immigration consequences with the enactment of section 1016.5 and the issuance of the opinions in People v. Soriano (1987) 194 Cal.App.3d 1470 (Soriano) and People v. Barocio (1989) 216 Cal.App.3d 99. Those authorities did not impose a duty on counsel to ask defendants about their citizenship status or to advise them that a plea may have immigration consequences. As discussed ante, section 1016.5 imposed a duty of advisement on the court, not counsel. (Aguilar, supra, 227 Cal.App.4th at p. 71.) Soriano stands for the proposition that, if a defendant raises a specific question concerning collateral consequences of a plea, then counsel must fully and correctly advise the defendant on the subject. (Soriano, at pp. 1481-1482.) Barocio, which involved a sentencing issue, confirmed the then prevailing rule that counsel had no duty to warn of the possible adverse immigration impact of a plea because those consequences were considered to be collateral matters. (Barocio, at p. 110.)

III. Section 1473.7 is Retroactive and Defendant’s Motion was Timely

Defendant argues the trial court erred when it denied his section 1473.7 claim on the grounds that it was not timely and the statute is not retroactive.

The People concede the statute is retroactive but argue defendant’s claim was too late and lacked merit. We find the court erred when it failed to apply the statute retroactively and found the motion untimely.

In relevant part, section 1473.7 authorizes a person who is no longer in criminal custody to move to vacate a conviction or sentence that is legally invalid due to a prejudicial error resulting in damage to the person’s ability to understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of entering a guilty plea. (§ 1473.7, subd. (a)(1).) A finding that the conviction or sentence is legally invalid may, but need not, include a finding of ineffective assistance of counsel. (Ibid.)

If a section 1473.7 motion is made with reasonable diligence and if the error and resulting prejudice are established by a preponderance of evidence, the court must grant the motion to vacate and allow the defendant to withdraw the plea. (§ 1473.7, subds. (b), (e)(1), & (e)(3).)

In this case, when the trial court found that section 1473.7 did not apply to defendant’s plea because it was entered prior to the statute’s enactment, it did not have the benefit of authority establishing the provision’s retroactivity. Cases decided since then make clear that the statute is retroactive. (People v. Espinoza (2018) 27 Cal.App.5th 908, 912-913; People v. Perez (2018) 19 Cal.App.5th 818, 827 [the statute’s language indicates that, if the moving party satisfies its requirements, it can be applied retroactively].)

The trial court also found that defendant’s motion was not timely. It pointed to subdivision (b) of section 1473.7, which provides in pertinent part that a motion must be filed with reasonable diligence after the defendant’s receipt of notice to appear in immigration court or other notice from immigration authorities asserting the conviction as a basis for removal. It concluded that, because defendant was first deported in 1998 but did not attempt to vacate his conviction until 2017, he did not act with reasonable diligence. The difficulty with that reasoning is section 1437.7, which gave rise to defendant’s motion, did not take effect until January 1, 2017. The measure of defendant’s diligence in pursuing relief is properly measured by the date it became available to him.

Here, defendant was reasonably diligent in pursuing his remedy. The statute was enacted on September 28, 2016. (Stats. 2016, ch. 739, § 1 (Assem. Bill No. 813).) The following week, defendant’s counsel started the process of gathering exhibits for the motion. The completed motion was filed in August 2017. The motion was timely.

DISPOSITION

We reverse the trial court’s finding that defendant’s section 1473.7 motion was not timely and remand the matter for a hearing on the merits of that issue. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

I concur:

FIELDS

J.
[People v. Perera, E069946]

Slough, J., Concurring.

I agree with the majority’s disposition and their decision to remand this case to the trial court so that it can consider the merits of William Perera’s Penal Code section 1473.7 motion. I write separately because there has been an amendment to section 1473.7 since the trial court first considered Perera’s motion. At the time Perera filed his motion, section 1473.7 required defendants to demonstrate that their failure to meaningfully understand the negative immigration consequences of their guilty pleas was a result of ineffective assistance of counsel. While Perera’s appeal was pending, the Legislature amended section 1473.7 to expand the circumstances under which noncitizen defendants can obtain relief from the adverse immigration consequences of their guilty pleas. Now, noncitizen defendants are entitled to have their convictions vacated under section 1473.7 if they show by a preponderance of the evidence (i) they didn’t “meaningfully understand” the “actual or potential” immigration consequences of their pleas and (ii) had they so understood, it’s “reasonably probable” they would have “instead attempted to ‘defend against’ the charges.” (People v. Mejia (2019) 36 Cal.App.5th 859, 862, 866 (Mejia); see also People v. Camacho (2019) 32 Cal.App.5th 998 (Camacho).) The majority do not discuss this legal development, but I think it’s important to do so because the evidentiary hearing is necessary to address the factual issues the amended section 1473.7 puts into play.

I

LEGAL BACKGROUND

It is helpful to understand the legal context in which Perera brings his section 1473.7 motion to vacate his conviction, as the last several decades have seen a steady trend of increasing procedural safeguards for noncitizen criminal defendants. “The current rules and procedures regarding noncitizens—and their respective rights within the criminal justice system—are based on decades of changes and advancements within the legislative, executive, and judicial branches of government, at both the state and federal levels.” (Mejia, supra, 36 Cal.App.5th at p. 866.)

In the beginning, the law considered the immigration ramifications for noncitizen defendants to be indirect or collateral consequences of a guilty plea, and thus didn’t require courts to advise them of those consequences before taking their guilty pleas. (Mejia, supra, 36 Cal.App.5th at p. 866.) In 1977, the Legislature enacted a law requiring courts to advise defendants: “If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States.” (§ 1016.5, subd. (a).) At that time, defense attorneys were under no duty to discuss the potential adverse immigration consequences of pleading guilty with their clients. However, in some cases, an attorney’s affirmative misrepresentation about immigration consequences could constitute ineffective assistance (IAC). (In re Resendiz (2001) 25 Cal.4th 230, 247.) But unless the defendant actually inquired about immigration consequences thereby prompting affirmative advice, “counsel could generally rely on the court’s immigration advisement.” (Mejia, at pp. 866-867.)

That changed in 2010, when the United States Supreme Court decided Padilla v. Kentucky (2010) 559 U.S. 356 (Padilla) and imposed a duty on defense counsel to understand and accurately explain the immigration consequences of a guilty plea. “The landscape of federal immigration law has changed dramatically over the last 90 years. While once there was only a narrow class of deportable offenses . . . , immigration reforms over time have expanded the class of deportable offenses. . . . The ‘drastic measure’ of deportation or removal . . . is now virtually inevitable for a vast number of noncitizens convicted of crimes.” (Id. at p. 360.) “Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.” (Id. at p. 374.)

In 2016, the California Legislature enacted two new Penal Code provisions to codify and expand the Padilla protections for noncitizen criminal defendants. (§§ 1016.2, 1016.3.) Those provisions state in relevant part: “The immigration consequences of criminal convictions have a particularly strong impact in California. One out of every four persons living in the state is foreign-born. One out of every two children lives in a household headed by at least one foreign-born person. The majority of these children are United States citizens. It is estimated that 50,000 parents of California United States citizen children were deported in a little over two years. Once a person is deported, especially after a criminal conviction, it is extremely unlikely that he or she ever is permitted to return.” (§ 1016.2, subd. (g).) “It is the intent of the Legislature to codify [Padilla] and related California case law and to encourage the growth of such case law in furtherance of justice and the findings and declarations of this section.” (§ 1016.2, subd. (h), italics added.)

II

SECTION 1473.7

In 2017, the Legislature enacted section 1473.7, further expanding the protections for noncitizen criminal defendants. That provision afforded noncitizens who had pled guilty without understanding the immigration consequences of their convictions a chance to have those convictions vacated in the interests of justice. “A person no longer imprisoned . . . may prosecute a motion to vacate a conviction . . . : [¶] (1) . . . [that] is legally invalid due to a prejudicial error damaging the moving party’s ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty.” (§ 1473.7, subd. (a).) The defendant’s burden of proof when bringing a section 1473.7 motion to vacate is a preponderance of the evidence. (§ 1473.7, subd. (e)(1) [“The court shall grant the motion to vacate the conviction or sentence if the moving party establishes, by a preponderance of the evidence, the existence of any of the grounds for relief”].)

Finally, effective January 1, 2019—while Perera’s appeal was pending in this court—the Legislature amended section 1473.7 to add: “A finding of legal invalidity may, but need not, include a finding of ineffective assistance of counsel.” (§ 1473.7, subd. (a)(1).)

A. Camacho and Mejia

At the time the parties had fully briefed this appeal, there were no published decisions interpreting the 2019 amendment to section 1473.7. However, before we held oral argument, the Second District decided Camacho and Division Three of the Fourth District decided Mejia, which agrees with and follows Camacho.

As the court explained in Mejia, newly amended section 1473.7 now allows a noncitizen defendant to vacate a guilty plea if they ‘“did not understand the true implications of the plea deal before accepting it”’ and ‘“suffered prejudice”’ as a result of their misunderstanding. (Mejia, supra, 36 Cal.App.5th at pp. 865-866.) “The key to the statute is the mindset of the defendant and what he or she understood—or didn’t understand—at the time the plea was taken, and not whether their attorney technically provided IAC.” (Id. at p. 866, italics added.) In other words, the 2019 amendment broadened the circumstances under which noncitizen defendants can obtain relief from the adverse immigration consequences of their guilty pleas. Before the amendment, defendants were required to prove IAC on the part of their attorneys. After the amendment, defendants could obtain relief by demonstrating their own subjective misunderstanding of the immigration consequences.

In Camacho, the defendant, John Camacho, pled no contest to possession of marijuana for sale in 2009. (Camacho, supra, 32 Cal.App.5th at p. 998.) In his declaration supporting his section 1473.7 motion to vacate his conviction, Camacho said he had been living in the United States since he was two years old. He was married to a United States citizen and they had two young children. (Camacho, at p. 1001.) He said when he entered his plea he “heard the judge say the conviction could lead to deportation,” however, he relied on his defense attorney’s statement that “everything would be fine” if he pled. (Ibid.)

At the hearing on his motion, Camacho testified he had been married to his wife for 12 years and had not left the country since he arrived at age two. (Camacho, supra, 32 Cal.App.5th at p. 1002.) He said his attorney did not tell him the marijuana conviction “would subject him to mandatory deportation . . . [and] would prevent him from ever becoming a legal permanent resident.” (Ibid.) Camacho’s attorney testified he could not remember discussing immigration consequences with Camacho, but was sure he had mentioned that the conviction could subject Camacho to deportation because he discusses immigration consequences with all his clients. (Ibid.)

The trial court denied Camacho’s motion to vacate on the ground he had not proven IAC. Noting the 2019 amendment to section 1473.7 took effect after the trial court made its ruling, the appellate court reviewed the evidence from Camacho’s hearing under the new standard for relief—whether Camacho had demonstrated his own misunderstanding of the immigration consequences. (Camacho, supra, 32 Cal.App.5th at pp. 1008-1009.) The appellate court concluded Camacho’s declaration and hearing testimony demonstrated by a preponderance of the evidence his “own error” in “not knowing that his plea would subject him to mandatory deportation and permanent exclusion from the United States.” (Id. at p. 1009.) The fact the trial court had advised him the conviction “could” lead to deportation was not dispositive. The court found Camacho’s claim he misunderstood the consequences was “supported by his former attorney’s undisputed testimony that he told [Camacho] only that the charge could subject him to deportation.” (Ibid.)

Turning to prejudice, the court observed that element could be satisfied by evidence that a defendant “‘would have rejected any plea leading to deportation—even if it shaved off prison time—in favor of throwing a “Hail Mary” at trial.’” (Camacho, supra, 32 Cal.App.5th at p. 1011, citing Lee v. United States (2017) 582 U.S. __ [137 S.Ct. 1958].) The court concluded Camacho had demonstrated prejudice by a preponderance of the evidence because his strong ties to our country—e.g., his family ties and the fact “[h]e was brought to the United States over 30 years ago at the age of two, has never left this country, and attended elementary, middle, and high school in Los Angeles County”—supported an inference that he “would never have entered the plea if he had known that it would render him deportable.” (Camacho, at pp. 1011-1012.) The court reversed the order denying Camacho’s motion and remanded with instructions to vacate the conviction. (Id. at pp. 1004, 1012.)

In Mejia, as in Camacho, the 2019 amendment to section 1473.7 took effect while the defendant’s appeal was pending. In 2017, Fernando Mejia sought to vacate three drug offense convictions he had pled guilty to in 1994. In his supporting declaration, he said his attorney had never informed him of the immigration consequences of his plea, even though all their conversations occurred through a Spanish interpreter. (Mejia, supra, 36 Cal.App.5th 859.) He said he had come to the United States when he was 14 years old. (Id. at p. 863.) When he pled, he had been living in the United States for eight years along with a significant portion of his family—his wife and infant son, as well as his mother and his six siblings. (Id. at p. 872.) He said, “Had I known that the charges would result [i]n imminent deportation and would have precluded any defense to deportation, I would have chosen to fight the charges or try to negotiate a result that would not destroy my chances of staying in the United States. By this point, I had already spent 8 years in the United States and I already considered this country my home. I never would have simply accepted responsibility if I knew I’d be deported.” (Id. at pp. 863-864.)

Like in Camacho, the trial court denied the motion on the ground Mejia had not demonstrated IAC. (Mejia, supra, 36 Cal.App.5th at p. 865.) And, like the appellate court in Camacho, the Mejia court reviewed the evidence from the hearing under the new standard and concluded Mejia had shown, by a preponderance of the evidence, that he did not “‘meaningfully understand’” the mandatory deportation consequences of his conviction when he pled. (Mejia, at p. 872.) The fact Mejia had initialed the immigration advisement on the plea form (as Perera did in this case) didn’t alter the court’s conclusion, because the standard is subjective and asks whether the defendant actually and meaningfully understood the immigration consequences—and Mejia’s testimony that he did not understand those consequences was undisputed. As to prejudice, the court concluded the evidence of Mejia’s strong ties to the United States demonstrated a “reasonable probability” he would not have pleaded guilty but instead would have risked going to trial (even if only to figuratively throw a “Hail Mary”). (Id. at p. 871.)

B. Perera’s Motion

As in both Mejia and Camacho, Perera presented evidence through his and his attorney’s declarations that (i) he did not meaningfully understand his conviction would result in a mandatory deportation, (ii) his attorney did not explain the immigration consequences to him (his attorney said he didn’t remember discussing deportation with Perera and likely “glossed over” the immigration consequences), and (iii) he had been in the United States for most of his life, considered it home, and thus would have taken his chances going to trial if he knew the conviction would lead to deportation.

Viewed in light of Camacho and Mejia, Perera’s declarations suggest he may have a meritorious claim for relief. Though Perera asks us to apply Camacho and Mejia now, I believe the better route is to remand so the trial court can consider Perera’s testimony (and any other evidence the parties present) in light of the 2019 amendment to section 1473.7 and the case law interpreting it. We can’t do the same thing here, because, unlike the courts in Camacho and Mejia, the trial court did not hold a hearing on the merits. We’re fixing that, but determining whether Perera qualifies for relief depends on the quality of the evidence presented at the hearing.

SLOUGH

J.

Filed 12/10/19 P. v. Revillas CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RUDY VALENTINO REVILLAS,

Defendant and Appellant. H045760

(Monterey County

Super. Ct. No. SS170914A)
Rudy Valentino Revillas was convicted after a court trial of one count of simple stalking (Pen. Code, § 646.9, subd. (a)) ; vandalism causing damage over $400 (§ 594, subd. (b)(1)); stalking after issuance of a restraining order (§ 646.9, subd. (b)); dissuading a witness by force or threat (§ 136.1, subd. (c)(1)); three counts of dissuading a witness (§ 136.1, subd. (a)(2)); possession of a firearm by a felon (§ 29800, subd. (a)(1)); two counts of disobeying a court order (§ 273.6, subd. (a)); and 18 counts of violating a criminal protective order (§ 166, subd. (c)(1)).

On appeal, Revillas asserts that he should have been convicted of only one count of stalking rather than two because his conduct occurred over a continuous period of time with no interruption. He also argues that he should not have been convicted of two counts of dissuading a witness because those counts alleged the same offense against the same victim on the same date. Finally, Revillas argues that if we reverse any of his convictions, his fines and fees for those convictions also should be stricken.

We agree with Revillas that the trial court erred when it convicted him of two counts of stalking for his continuous conduct toward the victim. We will vacate his conviction and concurrent sentence for simple stalking (§ 646.9, subd. (a)), and strike the fees associated with this conviction. In all other respects, we will affirm the judgment.

I. STATEMENT OF THE FACTS AND CASE
II.
The trial court considered the following evidence at a court trial on an amended information: Revillas and Jane Doe have a son together and were in an intimate relationship for 12 years, which ended in late 2013. After the relationship ended, Doe attempted to restrict her interactions with Revillas to those necessary to raise their son. Between 2014 and 2016, Revillas began to harass and threaten Doe. This conduct included incidents in which Revillas came to Doe’s home uninvited, left threatening messages on her voicemail, and placed pictures and letters on the windshield of her car. Revillas also vandalized Doe’s car.

Doe sought a restraining order against Revillas on October 4, 2016, and the court issued the order on October 27, 2016. Revillas continued to harass Doe after the issuance of the restraining order. In November 2016, Doe drove to a bar. As she traveled to the bar, she saw Revillas riding his bike toward her house. Revillas followed Doe; when she arrived at the bar, she got out of her car to find Revillas standing in front of her, attempting to block her path. After a short period of time, Revillas moved out of Doe’s way and she was able to walk into the bar. Doe left the bar an hour later and found the tires of her car had been slashed. Shortly thereafter, Doe saw Revillas again, and he threw a street sign at her car, causing damage to the body of the automobile. Doe encountered Revillas a third time that night; he threw a rock at her windshield.

In February 2017, Revillas came to Doe’s home and knocked on her garage door. When Doe told Revillas she was going to call the police, Revillas knocked the cell phone out of her hand, and then grabbed the phone and threw it on the roof of the neighbor’s house. Doe quickly found the paperwork for the restraining order and drove to the police station. Revillas followed on his bicycle, but rode away once Doe arrived at the station. In March 2017, Revillas threw a phone at Doe’s car while their son was sitting in the passenger’s seat. In May 2017, Revillas came to Doe’s house at 1:45 a.m. and banged on the garage door.

Following the May 2017 incident, Revillas was arrested. Revillas called Doe 86 times while he was in jail between June and August 2017. In June 2017, Revillas called Doe’s friend, who was aware of his harassment of Doe, and told her: “Don’t show up to court, okay.” Revillas also called Doe’s phone and spoke to their son, telling him: “If she [Doe] don’t go to court next week, I’ll be able to go home next week.” Revillas further stated, “Well, tell your mom though. Just tell your mom, ‘Don’t go to court.’ ” After he was done talking to his son, Revillas asked to talk to Doe. While talking to Doe, he directed her not to attend court. He indicated that if she did go to court, he would “do what I gotta do too, I will, dude.” He further stated, “And like if you wanna incriminate me, I will incriminate you, dude.”

After Revillas was arrested, police searched his home and found a stolen firearm. Police also reviewed Revillas’s cell phone records which showed that he had texted Doe 500 to 600 times before his arrest.

Revillas testified that commencing in October 2016, he and Doe shared joint custody of their son. Revillas said that he sent text messages and left voicemails for Doe out of frustration or, on some occasions, because he and Doe were arguing. Revillas denied ever vandalizing Doe’s car or throwing her cell phone onto her neighbor’s roof. Revillas said that when he encountered Doe at the bar in November 2016, he was trying to ask her about their son. He denied slashing her tires, throwing a rock or throwing a street sign at Doe’s car. Revillas indicated that when he knocked on Doe’s garage door in May 2017, he was trying to ask about his son. Revillas testified that he did not know there was a gun in his room and did not know where it came from. Revillas stated that when he told Doe and her friend not to testify in court, he meant that he did not want them to lie.

In November 2017, Revillas was charged by amended information with 34 crimes; 10 of the charged crimes were felonies, and the remainder were misdemeanors. The 10 felonies were: stalking (§ 646.9, subd. (a) – count 1); vandalism causing damage in excess of $400 (§ 594, subd. (b)(1) – count 2); stalking after issuance of a restraining order (§ 646.9, subd. (b) – count 3); dissuading a witness by force or threat (§ 136.1, subd. (c)(1) – count 4); two counts of failure to appear while on bail (§ 1320.5 – counts 5-6), with a special allegation for each count that the offense was committed while he was on bail (§ 12022.1, subd. (b)); three counts of attempting to dissuade a witness (§ 136.1, subd. (a)(2) – counts 7-9); and possession of a firearm by a felon (§ 29800, subd. (a)(1) – count 10). The misdemeanor offenses were as follows: two counts of disobeying a court order (§ 273.6, subd. (a) – counts 11 & 13); and 22 counts of violating a criminal protective order (§ 166, subd. (c)(1) – counts 12, 14-34). The court dismissed counts 14, 15, 24, and 25, misdemeanor violations of a criminal protective order (§ 166, subd. (c)(1).)

Revillas waived his right to a jury trial based on the understanding that he would be tried by the court, and that if convicted, he would be sentenced within a range of five to eight years. Following a court trial, Revillas was found not guilty of counts 5 and 6, felony failure to appear while on bail (§ 1320.5.) The court found Revillas guilty of the remaining counts: stalking (§ 646.9, subd. (a) – count 1); vandalism causing damage over $400 (§ 594, subd. (b)(1) – count 2); stalking after issuance of a restraining order (§ 646.9, subd. (b) – count 3); dissuading a witness by force or threat (§ 136.1, subd. (c)(1) – count 4); three counts of dissuading a witness (§ 136.1, subd. (a)(2)- counts 7-9); possession of a firearm by a felon (§ 29800, subd. (a)(1) – count 10); two counts of disobeying a court order (§ 273.6, subd. (a) – counts 11 & 13); and 18 counts of violating a criminal protective order (§ 166, subd. (c)(1) – counts 12, 13, 16-23, 26-34).

The court sentenced Revillas to seven years eight months in prison. The court selected count 3, the conviction for section 646.9, subdivision (b) as the principal term and imposed four years in prison. The court imposed a consecutive term of three years for count 4 (§§ 136.1, 1170.15) and eight months consecutive for count 10 (§ 29800, subd. (a)(1)) to reach the sentence of seven years eight months in prison. In addition to fines and fees, the court sentenced Revillas to concurrent sentences on the remaining charges, including three years concurrent for simple stalking for count 1 (§ 646.9, subd. (a)). Revillas filed a timely notice of appeal.

III. DISCUSSION
IV.
A. Stalking as a Continuing Offense
B.
Revillas was convicted of two counts of stalking. In count 1, Revillas was found guilty of stalking between September 13, 2014, and October 27, 2016, in violation of section 646.9, subdivision (a), and in count 3, he was found guilty of stalking after the issuance of a restraining order between October 27, 2016, and August 12, 2017, in violation of section 646.9, subdivision (b). He asserts that because the stalking occurred over a single period of time between 2014 and 2017, it is a continuing crime and he should have been convicted of only one count.

Whether a violation of law is considered a continuing crime is primarily a question of statutory interpretation, which we review de novo. (People v. Chilelli (2014) 225 Cal.App.4th 581, 586 (Chilelli).) “In construing a statute, our role is to ascertain the Legislature’s intent so as to effectuate the purpose of the law. [Citation.] In determining intent, we must look first to the words of the statute because they are the most reliable indicator of legislative intent. [Citation.] If the statutory language is clear and unambiguous, the plain meaning of the statute governs. [Citation.]” (Ibid.)

It is well established that stalking is a continuous offense, and the parties do not dispute this point. “The Legislature has defined stalking as a crime requiring a continuous course of conduct. [Citations.] Section 646.9, subdivision (a) states, ‘Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking….’ (Italics added.) Section 646.9, subdivision (e) defines ‘harasses’: ‘For the purposes of this section, “harasses” means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.’ (Italics added.) Section 646.9, subdivision (f) defines ‘course of conduct’: ‘For the purposes of this section, “course of conduct” means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of “course of conduct.” ’ (§ 646.9, subd. (f), italics added.) The clear and unambiguous language of section 646.9 defines stalking as a continuous course of conduct crime.” (Chilelli, supra, 225 Cal.App.4th at p. 586.)

Conceding that stalking is a continuous course of conduct offense, the Attorney General nonetheless argues that Revillas was properly convicted of two counts of stalking because each count charged here covered a separate time period and harassing behavior. Count one, charging a violation of section 646.9, subdivision (a), addressed Revillas’s harassing conduct between September 13, 2014, and October 27, 2016, prior to the issuance of a restraining order protecting Doe from him. That section provides: “Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.” (§ 646.9, subd. (a).) Count 2, charging a violation of section 646.9, subdivision (b), was directed to the period after the restraining order was in effect, between October 27, 2016, and August 17, 2017. That section provides: “Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years.” (§ 646.9, subd. (b).) As posed by the Attorney General, “the issue is whether appellant committed a separate offense when he stalked Doe after the court issued a restraining order prohibiting that conduct.”

The issue of whether section 646.9, subdivision (b) constitutes a separate substantive offense or, to express it differently, whether section 646.9, subdivision (b) defines a crime with its own elements, was addressed in People v. Muhammad (2007) 157 Cal.App.4th 484 (Muhammad). The First District Court of Appeal considered whether the defendant was erroneously convicted of four separate counts of stalking including simple stalking (§ 646.9, subd. (a)), stalking in violation of a restraining order (§ 646.9, subd. (b)), stalking with a prior terrorist threats conviction (§ 646.9, subd. (c)(1)), and stalking with a prior felony stalking conviction (§ 646.9, subd. (c)(2)). Each of the four counts was based on the same course of harassing conduct committed against the victim between December 17, 2003, and December 10, 2004. (Id. at pp. 486, 489.) Muhammad asserted that he was erroneously convicted of all but one count of stalking “because subdivisions (a), (b), (c)(1) and (2) of section 646.9 do not describe four separate offenses but describe alternative punishments for the single offense of stalking.” (Id. at p. 486.) The Attorney General argued that the subdivisions described separate substantive offenses with separate elements and therefore the defendant was properly convicted on all counts.

The appellate court cited People v. Kelley (1997) 52 Cal.App.4th 568 (Kelley), to conclude that section 646.9, subdivision (b) does not define a separate substantive offense. Kelley held, in the context of a defendant’s challenge to a conviction for sections 646.9, subdivision (b) under the double jeopardy clause of the Fifth Amendment, “[The defendant] incorrectly assumes section 646.9 defines the crime of stalking in violation of a restraining order. The section merely defines stalking. The provisions relating to the violation of a restraining order do not define a crime. They merely create a punishment enhancement.” (Id. at p. 576, fn. omitted.)

Although it agreed with Kelley that section 646.9, subdivision (b) did not describe a substantive offense, the court in Muhammad further refined the statutory analysis of section 646.9. “Our conclusion that subdivisions (a), (b) and (c) of section 646.9 do not create separate offenses is confirmed by examining the definition of the terms ‘offense,’ ‘enhancement,’ and ‘penalty provision.’ [¶] A substantive ‘crime or public offense’ is defined as ‘an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed, upon conviction, either of the following punishments: [¶] 1. Death; [¶] 2. Imprisonment; [¶] 3. Fine . . . .’ (§ 15.) [¶] ‘By definition, a sentence enhancement is “ ‘an additional term of imprisonment added to the base term.’ [Citations.]” (Muhammad, supra, 157 Cal.App.4th at p. 492.) The court determined that “subdivisions (b), and (c)(1) and (2) of section 646.9 are not sentence enhancements; they clearly do not add an additional term of imprisonment to the base term.” (Ibid.) Rather, these subdivisions of section 646.9 are penalty provisions. “ ‘The California Supreme Court has recognized, however, that statutory provisions which are not “enhancements” in the strict sense are nevertheless “penalty provisions” as opposed to substantive offenses where they are “separate from the underlying offense and do[] not set forth elements of the offense or a greater degree of the offense charged. [Citations.]” ’ [Citations.]” (Ibid.) “[A] penalty provision does not define a substantive offense, but ‘ “ ‘focus[es] on an element of the commission of the crime or the criminal history of the defendant which is not present for all such crimes and perpetrators and which justifies a higher penalty than that prescribed for the offenses themselves.’ [Citation.]” [Citations.]’ [Citation.]” (Id. at pp. 492-493.)

After considering the structure and language of section 646.9, the court concluded that subdivisions (b) and (c) of section 646.9 do not define separate substantive offenses; rather, section 646.9, subdivision (a), sets out the elements of the crime of stalking, and section 646.9, subdivisions (b) and (c), “are penalty provisions triggered when the offense of stalking as defined in subdivision (a) . . . is committed by a person with a specified history of misconduct.” (Muhammad, supra, 157 Cal.App.4th at p. 494.) Although the defendant in Muhammad was charged in four separate counts, he could only be convicted of a single count of stalking for his continuing conduct; the appellate court vacated three of the defendant’s four stalking convictions. (Id. at pp. 494-495.)

The Attorney General acknowledges that Muhammad holds that stalking is a continuing offense, and that section 646.9, subdivision (b), defines a penalty provision rather than a substantive offense. However, he argues that Muhammad does not apply in a case such as this, where each count of stalking is alleged to define a separate time period. In Muhammad, the four counts of stalking “involved the identical course of conduct committed against [the victim] between December 17, 2003, and December 10, 2004.” (Muhammad, supra, 157 Cal.App.4th at p. 489.) Here, the Attorney General asserts that Revillas’s conduct was delineated by the issuance of the restraining order on October 27, 2017, and that as a result, he committed a separate substantive stalking offense on that date and for the continuous time period thereafter.

The Attorney General cites People v. Meeks (2004) 123 Cal.App.4th 695 (Meeks), in support of its arguments. In Meeks, the defendant was convicted of two counts of violating the continuing offense of failing to register as a sex offender (§ 290). The two counts alleged that the defendant failed to register as required by law within five days of changing his address, and within five days of his birthday. (Meeks, supra, pp. 699-700.) The Third District Court of Appeal held that while the crime of failing to register is a continuing offense, the defendant could be convicted of two counts because he violated section 290 in two different ways. (Id. at pp. 702-703.) In reaching its conclusion, the court explained that prohibiting multiple convictions under the circumstances was inconsistent with the intent of the statute. “[S]imply because the Legislature intended that a violation of section 290 be a continuing offense does not mean that a defendant cannot be convicted and punished for new and separate violations of section 290 as he continues to ignore the law. [¶] . . . By requiring defendants to register annually and with every change of residence, it was no doubt the Legislature’s intent to treat each violation of the registration requirements as a separate, continuing offense in order to encourage compliance with the law and to ensure to the extent possible that a sex offender’s whereabouts remain known.” (Id. at pp. 702-703.) By analogy, the Attorney General argues here that by stalking Doe, Revillas violated section 646.9 in one way; by stalking Doe after a restraining order was issued by the court, he violated section 646.9 in another. As a result, if Revillas were punished for only one violation of section 646.9, he would not be punished for the period of time he stalked Doe before the restraining order issued.

We are not persuaded. Meeks is inapposite here because section 290 and the Sex Offender Registration Act are structured to define multiple substantive continuous crimes, not to define a continuous crime with attendant penalty provisions. Section 290 sets forth the duty of a defendant convicted of certain crimes to register as a sex offender. As described in the Sex Offender Registration Act, which includes sections 290 to 290.024, the registration requirement is triggered by numerous life events, including the defendant’s birthday, change of address, release from county jail or state prison, or transient status. Failure to register after each defined event creates a separate, continuing offense. As stated in Meeks, “Under section 290, a failure to register when one moves to a different residence is a continuing offense; a failure to register on the event of the defendant’s birthday is a separate continuing offense. . . . Had the prosecution charged a separate offense for each day of defendant’s failure to register when he changed his address, the defendant would then have been subjected improperly to multiple convictions for a single criminal act.” (Meeks, supra, 123 Cal.App.4th at p. 702.)

Nothing in the analysis of Meeks causes us to reconsider the conclusion of Muhammad that as a matter of law, section 646.9 “sets out in several subdivisions the definition of stalking as well as alternate penalties for the offense that depend upon the stalker’s criminal history.” (Muhammad, supra, 157 Cal.App.4th at p. 486.) The legislative drafters of section 290 and the Sex Offender Registration Act addressed the intent to monitor sex offenders by targeting their release from custody (§§ 290; 290.011; 290.015), entry into a community or change of address (§§ 290; 290.011; 290.012), transient status (§ 290.011), and birthday (§ 290.012). But notably, the statute contains no additional or enhanced penalties for failing to register under certain circumstances.

With respect to stalking, as described in Muhammad, the Legislature elected to draft section 646.9 differently, by defining simple stalking, and providing that a higher sentence should be imposed if an offender commits that defined crime when a restraining order has issued or after suffering certain convictions. (§ 646.9, subds. (b), (c).) Indeed, the increased penalty dictated for stalking when a restraining order has been issued precludes the possibility that a trial court could grant probation and mandates a state prison sentence, as the offender “shall be punished by imprisonment in the state prison for two, three or four years.” (§ 646.9, subd. (b).) By structuring the stalking statute as one continuing criminal offense with attached penalty provisions, the Legislature expressed its determination to severely punish persons who stalk after the issuance of a restraining order. But as a matter of legislative election, section 646.9, subdivision (b) does not qualify as a separate continuous crime with its own defined elements.

Neither are we persuaded by the Attorney General’s argument that Revillas’s conduct occurred in two separate and distinct time periods that legally justified two separate continuous stalking charges. It was the prosecutor’s discretionary act that divided the period of criminal conduct spanning September 13, 2014, to August 17, 2017 into two counts. But under the facts of this case, there was no interruption in Revillas’s harassment of Doe for almost three years; it continued unabated with the same intent and purpose. These facts are consistent with the definition of “course of conduct” as “two or more acts occurring over a period of time, however short, evidencing a continuity of purpose” in section 646.9, subdivision (f), and thus of the continuous crime of stalking. The prosecutorial decision to charge two counts rather than one, where the two counts addressed an unbroken period of criminality and where the charged counts shared an offense date (October 27, 2016), did not create two separate continuous criminal offenses, but improperly produced two convictions for one continuous crime.

We conclude that Revillas could only be convicted of one count of stalking. Because Revillas’s ongoing harassment was not deterred by the court’s issuance of a restraining order during that period of continuous criminal conduct, he was subject to the increased penalty provisions established in section 646.9, subdivision (b). These increased penalties provide that Revillas could not be granted probation with an attendant jail sentence, but “shall be punished by imprisonment in the state prison for two, three, or four years.” (§ 646.9, subd., (b).) Here, the trial court selected the count 3 conviction for section 646.9, subdivision (b) as the principal term and imposed the maximum sentence allowed under that section. We affirm that conviction and vacate the conviction and lesser concurrent sentence imposed by the trial court on count 1 for simple stalking. (§ 646.9, subd. (a).)

C. Dissuading a Witness
D.
Revillas was convicted in counts 8 and 9 of attempting to dissuade a witness (§ 136.1, subd. (a)(2)). Revillas argues that the trial court erred when it convicted him of both counts of attempting to dissuade a witness because the two counts described “exactly the same offense [dissuading a witness], on the same date, against the same victim.”

Counts 8 and 9 are based on a phone call Revillas made from jail to Doe’s home with the intent of dissuading her from going to court to testify against him. At the beginning of the call, Revillas spoke to their son, telling him about Doe, “If she don’t go to court next week, I’ll be able to go home next week.” Revillas went on to say, “Well, tell your mom though. Just tell your mom, ‘Don’t go to court.’ ” After he was done talking to his son, Revillas asked to talk to Doe. While talking to Doe, he told her not to go to court, and stated if she did go to court, he would “do what I gotta do too, I will, dude.” He further stated, “And like if you wanna incriminate me, I will incriminate you, dude.”

Whether section 136.1, subdivision (a)(2), allows multiple convictions for “exactly the same offense [dissuading a witness], on the same date, against the same victim,” is a question of statutory interpretation, which we consider de novo. (See, Chilelli, supra, 225 Cal.App.4th at p. 586.) We consider the plain language of the statute to determine the Legislature’s intent. (Ibid.) Section 136.1, subdivision (a)(2) defines attempted witness dissuasion as follows: “(a) [A]ny person who does any of the following is guilty of a public offense . . . (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.” We note that there is no language in the statute indicating that multiple acts committed with the same intent to persuade the same victim cannot be separately charged nor is there any language suggesting dissuading a witness is a continuing crime.

In People v. Kirvin (2014) 231 Cal.App.4th 1507, 1519 (Kirvin), the Second District Court of Appeal found that multiple convictions for violating section 136.1, subdivision (a)(2) against the same victim were proper when the defendant committed discrete acts attempting to dissuade the victim from testifying against him. In Kirvin, the alleged counts were based on separate phone calls the defendant made to his sister urging her to persuade a specific witness not to testify in an upcoming case. The court held that the defendant was properly charged with multiple counts of violating the statute because “[a] separate violation of section 136.1, subdivision (b)(2), was completed each time [the defendant] placed a call to his sister urging her to persuade [the witness] not to go to court.” (Id. at p. 1519.) Observing that all of the defendant’s calls were directed toward the goal of persuading his sister to convince the witness not to testify, the court found that common intent irrelevant to the analysis of whether multiple counts could be alleged against the defendant. (Ibid.)

Although Revillas made only one call attempting to dissuade Doe from testifying, the analysis of Kirvin is applicable to this case. The evidence supports the conclusion that Revillas committed two discrete acts of dissuasion during the single phone call to Doe’s home. Although Revillas dialed one phone number from the jail, he engaged in two separate conversations with two different people. In the first, he pressured his son to tell Doe not to come to court; in the second, he threatened Doe herself to deter her from testifying. Revillas first attempted to dissuade Doe from cooperating with the prosecution of his case by using his son as his emissary; thereafter Revillas himself threatened the victim with consequences if she testified in court. We further observe that Revillas’s use of their child to dissuade Doe was an act of manipulation, both of the child and of Doe, designed to appeal to Doe’s parental emotions. It was thus distinct in character from the blunt threats Revillas directed to Doe herself later in the telephone call that were designed to frighten her. Although the conversations shared the same objective, which was to deter Doe from attending court, the two conversations were distinct, utilizing separate and powerful approaches to Doe, that increased Revillas’s culpability here. “ ‘A person who commits separate, factually distinct, crimes, even with only one ultimate intent and objective, is more culpable than the person who commits only one crime in pursuit of the same intent and objective. [Citation.]’ ” (People v. Correa (2012) 54 Cal.4th 331, 341.) We conclude that although Revillas made only one call from the jail with the single intent of dissuading Doe, he was properly convicted of two counts of attempting to dissuade a witness because he committed two separate acts to achieve his intent.

E. Reduction of Fines and Fees
F.
Revillas argues, and the Attorney General concedes that if we reverse any of the convictions, the criminal fines and fees associated with those convictions must be stricken. We are vacating Revillas’s conviction on count 1 for simple stalking in violation of section 646.9, subdivision (a). As a result, Revillas’s fees for that count must be stricken.

The record shows the court did not impose any fines for Revillas’s conviction on count 1; however, the court did order Revillas to pay a court operations fee of $40 (§ 1465.8), and a court facilities fee of $30 (Gov. Code, § 70373), for each of his convictions. The total court operations fee ordered was $1,120, and court facilities fee was $840. These totals will be reduced by $40 and $30 respectively to reflect the reversal of count 1.

V. DISPOSITION
VI.
The conviction in count 1 of stalking in violation of Penal Code section 646.9, subdivision (a), and the concurrent sentence of three years in state prison imposed for that count, are vacated. The court operations fee pursuant to Penal Code section 1465.8, is ordered reduced by $40 for a new total of $1,080. The court facilities fee pursuant to Government Code section 70373, is ordered reduced by $30 for a new total of $810. The abstract of judgment shall be corrected to reflect these changes. In all other respects, the judgment is affirmed.

_______________________________

Greenwood, P.J.

WE CONCUR:

_____________________________________

Grover, J.

______________________________________

Danner, J.

The People v. Revillas

No. H045760

Filed 12/11/19 P. v. Thomas CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

BYRAN ANTOINE THOMAS,

Defendant and Appellant.

C081884

(Super. Ct. No. 14F02325)

Defendant Byran Antoine Thomas attended a birthday party on March 21, 2014. He shot and killed one of the other partygoers, who was a member of a rival gang. Defendant claimed at trial that he was not the shooter, even though three witnesses, including two of the people accompanying him to the party, testified he was the shooter.

The jury found defendant guilty of first degree murder, and found true the allegations that defendant personally discharged a firearm causing death, and committed the murder for the benefit of, at the direction of, or in association with the Zilla street gang. The trial court found true the allegations that defendant had previously been convicted of two serious and violent felonies. The trial court tripled the term for the current conviction because of defendant’s two prior felonies, sentencing him to a term of 75 years to life plus a consecutive 25-year-to-life term for the firearm enhancement.

Defendant argues the trial court should have instructed the jury that two witnesses, Shedrick Attaway and Danny Boston, were accomplices whose testimony was required to be corroborated. We conclude the trial court was not obligated to give such an instruction because there was no evidence defendant’s associates were accomplices.

Defendant argues the gang expert’s testimony was based on inadmissible hearsay in violation of his right to confront the witnesses against him. We conclude most of the expert’s testimony was not a violation of the hearsay rule and no showing has been made the statements were testimonial. The small amount of testimony that was a hearsay violation constituted harmless error.

We conclude the trial court did not abuse its discretion in failing to declare a mistrial when the expert gave testimony about a photograph on defendant’s phone that the parties had agreed to exclude. The testimony was brief and was not prejudicial. We will affirm the judgment, but will remand for the trial court to consider whether to strike defendant’s firearm enhancement, because the trial court had no discretion at the time of sentencing to strike the enhancement. A subsequent change in the law has bestowed such discretion upon the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant, Danny Boston, Shedrick Attaway, and Mack Ballard took a light rail train together to a party hosted by Areanna Nunnelly, Attaway’s ex-girlfriend. Around 35 people were at the party. Some were dancing, and some were smoking outside. Two men, murder victim Davon Brown and Douglas Livingston, arrived with two other people. Attaway described them as “flexing” and “big-dogging.” He said they were on a “different hype” than everybody else, and were acting tough. They changed the whole vibe of the party. Attaway testified his group let each other know to stay on their toes, because the two men did not give a good vibe to the party. They were bumping people and looking the men in their face.

Brown went inside the apartment and back out a few times. Nunnelly testified she heard Boston ask Brown, “You from out here?” Brown said, “No.” Boston then told Brown that he looked like the guy from Starz. Brown said, “No” and turned his back. He seemed mad he had been asked the question.

One of the songs being played at the party was Third World, which was associated with the Starz gang. Defendant asked Nunnelly if he could play a song. The song he played was by Little Tim, who is a member of the FAB (Fourth Avenue Bloods) street gang. A friend of Nunnelly’s turned off the song, told defendant he could play the song in his car or at his house, but not at the party. Defendant asked if someone was mad that he was playing the song. Brown said he wanted to hear the Third World song again.

One time when Brown and Livingston were outside smoking, they were approached by defendant, Attaway, Ballard, and Boston, who had their hoods tied down over their heads. Defendant asked Brown and Livingston where they were from. That question could mean “who are you banging with,” or “what street [do] you stay on,” or “who is your family?” Livingston said he was from Oakland and Brown said he was from Fresno. A woman came out then and told them all to either leave or go back inside the apartment. They went back to the house. Livingston stood by the back door, and Brown went inside. Later, Livingston heard gunshots.

Attaway and Boston both testified that defendant fired the shots that killed Brown. Defendant argued at trial that he was not the shooter, but that Attaway did the shooting. Defendant was about six feet tall with dreadlocks, and was wearing a black top and black hoodie. Attaway was roughly defendant’s height, but was wearing gray shorts, a black shirt, glasses, and was heavier. Attaway had closely cropped hair. Boston testified he recognized defendant because he was wearing a hoodie, because of his hair, and because he was about six feet tall. In addition to Boston and Attaway, Shacoya Yates testified she saw defendant shooting Brown. She recognized defendant because he had been trying to get her to dance with him that night.

Domonique Smith was sitting in her car outside the party and talking to a friend when she heard gunshots. People scattered, and she saw one person in a black hoodie and jeans with a gun running from the direction of the party. The person she saw was approximately 5 feet 10 or 11 inches tall, and had an average build and dreadlocks. The man touched her car.

After the shooting, Boston, Attaway, Ballard, and defendant met at a nearby apartment where Boston’s friend, Devonte Wilkins, lived. The next morning, they walked back to the light rail station and went home. Defendant was arrested and his apartment was searched. In the apartment officers found a black hoodie sweatshirt that was tested for gunshot residue. Particles consistent with gunshot residue were found on the front upper right chest, front upper left chest, front right forearm and cuff, and side right forearm and cuff.

Detective Jonathon Houston testified as the prosecution’s gang expert. He testified that Oak Park Bloods are an African-American street gang. The main rivals of the Oak Park Bloods are G-MOB and its various subsets, which include BAY (Bad Ass Youngsters), Starz, Guttah, Del Paso Heights Bloods, and Trigga Mob. Oak Park Bloods are the parent or umbrella gang, to which all subsets have allegiance. The subsets are Zilla, Guns Up, and FAB. Under the subsets are cliques, or tight-knit groups of people that hang out together. Zilla members are Oak Park Bloods that rise above and beyond the regular members, and are more violent, commit more crimes, and are more tight-lipped about their involvement.

The Seavey Circle area, where the crime took place, is not claimed by any particular gang. It is common for both G-MOB and Oak Park Bloods to come together in a violent way in that neighborhood because it is low-income housing. Zilla claims the color red, in common with the Oak Park Bloods.

The primary criminal activities of Zilla are narcotics possession and trafficking, weapons possession and trafficking, felony assault with a deadly weapon likely to produce great bodily injury, and homicide. Detective Houston testified to two predicate offenses of the Zillas, a felony assault, robbery, and sexual assault that occurred at the county jail against G-MOB members, and a mayhem conviction with a gang enhancement. Both cases resulted in convictions, and certified copies of both convictions were admitted into evidence.

Detective Houston testified about the process of validating gang members. He testified that he had known defendant since 2005, when he was a school resource officer at Hiram Johnson High School. Houston testified that in preparation for his testimony, he had reviewed 13 different reports, and had checked defendant’s Facebook accounts and the pictures posted to the accounts. Houston’s opinion was that defendant was a validated member or current member of the Zilla street gang. One of the reports Houston reviewed was a police report from 2009 indicating defendant admitted to detectives that he was a member of FAB, which is a subset of Oak Park Bloods, and that he had been a member for about two years. Houston explained that if defendant was associated with FAB in 2009, it meant he had not yet risen to the level of being a Zilla member. Zilla members also use the word “Uzzy” in their monikers. It is shorthand for Underworld Zilla. Defendant’s monikers are “Uzzy Twin,” “Twin,” “Hands,” and “T-Raw.”

Also in 2009, Detective Houston was patrolling the Oak Park neighborhood and came into contact with defendant. Houston and his partner asked defendant if he was still a Blood member, and defendant admitted he had been a FAB member for approximately four years. Defendant showed Houston several gang-related photographs in which he was displaying FAB gang hand signs. Defendant was with two other known members of Oak Park Bloods.

In 2013 defendant was contacted while he was a passenger in a vehicle. He had gang-related photographs on his phone, he was wearing a red hat, and he had red ink tattoos, red being the color of the Oak Park Bloods and Zilla. He was also in the company of another gang member during that contact. Again in 2013 defendant was contacted during a traffic stop as a passenger, and he was again in the company of a validated member of the Oak Park Bloods.

One of defendant’s tattoos says “Only God can judge me” in red ink. Both the red ink and the phrase are common among Oak Park Bloods. Another tattoo says “Royalty and respect.” Respect is extremely important among gang members. One of his tattoos is of a star with bullet holes in it. This shows disrespect toward the Zilla’s and Oak Park Bloods’ rival gang–Starz. Defendant has “Shootah Gang” tattooed on his hand to pay tribute to Nicholas Newsome, who is in prison. Defendant also has the words “World” and “Bitch” tattooed on his middle fingers, signifying “fuck the world” and “fuck a bitch.”

Detective Houston testified that several of defendant’s Facebook posts showed him displaying gang signs. Houston also identified defendant in a photograph holding a firearm.

In the gang culture, asking someone where they are from is basically asking them what gang they are from. It is an attempt to find out if they are a friend or rival.

The victim had been a validated member of G-MOB at the time of the shooting. He was validated as a G-MOB Starz associate in 2012. The victim had tattoos of stars on both of his hands, something Starz members commonly have tattooed on themselves in visible places. Livingston was also affiliated with the Starz criminal street gang.

DISCUSSION

I

No Duty to Instruct on Accomplice Testimony

The Supreme Court has “held that ‘[w]hen there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices,’ including the need for corroboration.” (People v. Tobias (2001) 25 Cal.4th 327, 331.) Defendant argues Boston and Attaway were accomplices, and that the trial court had a sua sponte duty to give instructions on accomplice testimony. We disagree.

Penal Code section 1111 provides: “A conviction can not be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.” An accomplice is defined by statute as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.” (Ibid.) “To be chargeable with an identical offense, a witness must be considered a principal under section 31. . . . An accomplice must have ‘ “guilty knowledge and intent with regard to the commission of the crime.” ’ [Citation.]” (People v. Lewis (2001) 26 Cal.4th 334, 368-369.) The trial court need not instruct the jury on accomplice testimony where the evidence is insufficient as a matter of law to support a finding that the witness is an accomplice. (Ibid.)

Thus, the trial court is not required to instruct the jury on accomplice testimony unless there is evidence the witness: (1) personally committed the crime, or (2) knew of the criminal purpose of the person who committed the crime, and intended to and did in fact aid, facilitate, promote, encourage, or instigate the commission of the crime. (CALCRIM No. 334.) There was no evidence that either Boston or Attaway personally committed the crime, even though defendant argued Attaway was the shooter. Nor was there evidence they knew of defendant’s criminal purpose and aided him in the commission of the crime. The only evidence defendant points to is that Attaway and Boston were friends, that they went to the party with defendant, that they were members of the same gang, that they had concerns about the presence of Livingston and Brown at the party, that Boston asked Brown where he was from, that they talked to Livingston and Brown at the party, that defendant told Boston to see if Brown and Livingston were still at the party, and that they all fled after the shooting. None of these facts are evidence that Boston or Attaway knew defendant intended to kill Brown or that they aided defendant in the murder. Thus, the trial court had no duty to give the instruction on accomplice testimony.

Moreover, the instruction “is not necessary when the witness does not claim firsthand knowledge of how the crime was committed, but merely testifies to what he or she saw or heard.” (People v. Mackey (2015) 233 Cal.App.4th 32, 123.) Boston and Attaway did not testify to anything defendant said about his intentions prior to the murder, and did not testify that defendant confessed after the murder. The only inculpatory part of Boston’s and Attaway’s testimony was their statement that they saw defendant shoot Brown.

Also, there was corroborating evidence that defendant was the shooter. This fact was corroborated by the testimony of Yates and the fact that gunshot residue was found on a sweatshirt seized from defendant’s apartment. Defendant argues the corroborating evidence was insufficient, but “ ‘[c]orroborating evidence may be slight, may be entirely circumstantial, and need not be sufficient to establish every element of the charged offense. [Citations.]’ [Citation.] The evidence ‘is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth.’ ” (People v. Lewis, supra, 26 Cal.4th at p. 370.) Thus, even assuming the trial court erred by failing to give an accomplice instruction, the error was harmless.

II

Gang Hearsay Testimony

Defendant was charged with a gang enhancement pursuant to section 186.22, subdivision (b)(1). The jury found the charge true. Section 186.22, subdivision (b)(1) imposes additional punishment where a defendant commits a felony “for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” Defendant argues the gang expert’s testimony consisted of inadmissible hearsay to the extent the gang allegation must be reversed. Defendant further argues the hearsay evidence to which the expert testified was testimonial in nature, and violated defendant’s Sixth Amendment right to confront the witnesses against him.

Defendant’s argument is based on People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which was decided a few months after defendant’s trial. Sanchez held that an expert’s case-specific statements concerning a defendant’s gang membership constituted inadmissible hearsay where they were presented as true statements of fact without the requisite independent proof. (Id. at pp. 670-671.) The court held that such hearsay statements that were also testimonial should have been excluded for violation of the Sixth Amendment right to confront and cross-examine witnesses. (Ibid.) The court explained that “[c]ase-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried.” (Id. at p. 676.) An expert may rely on hearsay in forming an opinion and may tell the jury of that reliance in general terms. (Id. at p. 685.) An expert may also help the jury understand the significance of case-specific facts, and may give an opinion about what such facts mean. (Id. at p. 676.) But, an expert may not supply case-specific facts unless: (1) the expert has personal knowledge of such facts, (2) the facts are independently proven by competent evidence, or (3) the statement is covered by a hearsay exception. (Id. at pp. 676, 686.)

Case-specific facts are to be distinguished from “generally accepted background information.” (Sanchez, supra, 63 Cal.4th at p. 676.) An expert may testify to background information without violating the hearsay rule. For example, the fact that a person has a tattoo is case-specific information that may be established by a witness or a photograph. (Id. at p. 677.) That the tattoo is the symbol of a particular gang, and that it shows the person tattooed belongs to the gang is generally accepted background information. (Ibid.)

The People argue defendant forfeited the issue by failing to raise an objection. As defendant makes an alternate claim of ineffective assistance of counsel, we shall address the issue. We examine each objection defendant now raises.

A. Police Reports

1. Arguments on Hearsay Grounds

Detective Houston relied on four police reports in forming his opinion. There was no expert hearsay violation as to three of the reports, because the officers involved testified. In one case, Houston was the officer involved. As Sanchez explained, experts are given more latitude than lay witnesses when relating information to the jury. (Sanchez, supra, 63 Cal.4th at p. 675.) An expert may testify concerning his or her general knowledge, even if the testimony is hearsay. (Id. at p. 676.) Additionally, an expert may testify to case-specific facts about which he has personal knowledge, and if a witness with personal knowledge of case-specific facts testifies at trial, the expert may rely on those facts and give an opinion about what those facts mean. (Ibid.) That is what happened here.

The reports that were admissible without a hearsay violation were: (1) a July 2009 contact in which Officer Scott MacLafferty, who testified at trial, contacted defendant and validated him as a gang member based upon defendant’s admission and the fact that the number 2126 was required to unlock defendant’s phone ; (2) a 2009 case Detective Houston worked where defendant admitted to Houston that he had been a FAB member for approximately four years, in which defendant showed Houston several gang-related photographs, and where defendant was in the company of two other known members of Oak Park Bloods; and (3) a February 2013 contact in which Officer Nicholas Knoblock (who testified at trial) contacted defendant (who wore gang-related clothing and sported gang-related tattoos) and searched defendant’s cell phone, which contained gang-related photographs. Specifically with regard to the third contact, Knoblock testified that defendant wore the color red (which was associated with Blood gangs), admitted being a member of the Oak Park Bloods and affiliated with Zilla, sported red tattoos, and was with another member of the Oak Park Bloods. Houston used these reports as the basis for his expert opinion that defendant was a member of the Zilla street gang.

The fourth police report was also from 2013. Detective Houston’s testimony regarding the contact was a single sentence: “[Defendant] was contacted during a traffic stop as a passenger in a vehicle, and he was in the company of another validated member of the Oak Park Bloods.” The report was part of the evidence Houston relied on to support his expert opinion that defendant was a member of the Zilla subset of the Oak Park Bloods. While this report technically was inadmissible under state hearsay rules, its admission was harmless. Improper admission of a hearsay statement is subject to the harmless error test set for in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Seumanu (2015) 61 Cal.4th 1293, 1308.) Thus, we examine whether it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (Watson, at p. 836.)

We conclude it is not reasonably probable that the omission of this evidence would have resulted in a more favorable outcome for defendant. The testimony from the report was much less specific than the other three incidents that did not violate the hearsay rule, and did not add any information that was not already properly in evidence.

2. Arguments on Sixth Amendment Grounds

Defendant argues all 13 contacts based on police reports were testimonial hearsay offered without the opportunity to cross-examine the witnesses in violation of his Sixth Amendment right to confront the witnesses and evidence against him. As we have already indicated, in the case of nine of the police reports, no hearsay statements were admitted, thus no testimonial hearsay was admitted in violation of defendant’s confrontation rights. As to two of the police reports that were introduced by the officers involved, we also concluded there was no state law hearsay violation because Sanchez indicates an expert may testify about case-specific facts that are established by witnesses with personal knowledge of those facts. (Sanchez, supra, 63 Cal.4th at p. 676.) A third police report did not violate state hearsay law because Detective Houston had personal knowledge of the facts. Defendant argues that because the police reports were produced in the course of an ongoing criminal investigation, they were testimonial evidence that violated his Sixth Amendment right to confront the witnesses and evidence against him.

“Testimonial statements are those made primarily to memorialize facts relating to past criminal activity, which could be used like trial testimony. Nontestimonial statements are those whose primary purpose is to deal with an ongoing emergency or some other purpose unrelated to preserving facts for later use at trial.” (Sanchez, supra, 63 Cal.4th at p. 689.)

The first contact was memorialized in a police report indicating defendant had been “contacted” by gang detectives and admitted to them that he was a gang member. The contacting officer, MacLafferty, testified he was working enforcement on the light rail trains. He testified he made contact on the train with defendant and validated defendant based on defendant’s admission to being a gang member, his use of a gang symbol to unlock his phone, and gang-related photographs on his phone. Defense counsel did not cross-examine MacLafferty. Sanchez indicates police reports are testimonial if they are “compiled during police investigation of . . . completed crimes.” (Sanchez, supra, 63 Cal.4th at p. 694.) There is insufficient evidence from MacLafferty’s testimony to conclude the police report related to the investigation of past criminal activity. It is defendant’s burden to affirmatively demonstrate error. (People v. Ochoa (2017) 7 Cal.App.5th 575, 585.) Because defendant did not object to the admission of the evidence, or cross-examine the officer, the record is not clear enough to conclude whether the expert’s testimony involved testimonial hearsay. No confrontation clause violation has been demonstrated.

The second contact was memorialized in a police report, but the facts were related by Detective Houston, who had firsthand knowledge of the contact. Defendant’s statement to Houston that he was still a gang member was not hearsay because it was an admission. The other occurrences during the contact—being with other gang members and having gang-related photographs on his phone—do not constitute out-of-court statements. As there was no hearsay involved in the second contact, there was no Sixth Amendment violation.

The third contact was recorded in a police report which stated that defendant was contacted when he was a passenger in a vehicle. The contacting officer, Knoblock, testified he was on patrol when he contacted defendant. Knoblock saw that defendant had gang-related photographs on his phone, wore gang-related clothing, displayed gang-related tattoos, and was with another gang member. Defendant admitted he was a gang member. Defense counsel did not cross-examine Knoblock. The record is not clear enough to conclude whether the police report on which the expert relied involved testimonial hearsay. No confrontation clause violation has been demonstrated.

The fourth and final contact was taken from a police report. The only statement made by the expert was that defendant “was contacted during a traffic stop as a passenger in a vehicle, and he was in the company of another validated member of the Oak Park Bloods.” The record is insufficient to determine whether testimonial hearsay was involved. Defendant has not established a confrontation clause violation.

In any event, the admission of the evidence was harmless beyond a reasonable doubt. The police reports on which the expert testimony relied were admitted to show that defendant was a gang member. Defendant’s theory of the case did not contest that fact, but instead argued he did not pull the trigger. In closing argument, defense counsel admitted defendant’s gang membership: “Now, let’s just be honest. Mr. Thomas is a gang member. I have never, ever said he wasn’t. He has never said he wasn’t. It’s in his pictures. It’s in his tattoos. That’s not really an issue in this case. What is at issue is who pulled the trigger.”

B. Monikers

Defendant argues Detective Houston said he had “seen” monikers for defendant of “Uzzy Twin, Twin, Hands, and T-Raw.” Defendant claims this information was obtained from outside sources and is classic hearsay. Hearsay is a statement that is: (1) made by someone other than the testifying witness, and (2) offered to prove the truth of the matter stated. (Evid. Code, § 1200, subd. (a).) Defendant’s monikers are not an out-of-court statement, thus not hearsay. Had Houston testified that he had read a report stating that defendant used the monikers Uzzy Twin, et cetera, that would be an out-of-court statement offered to prove the truth of the matter stated, but that is not what Houston said.

C. Pictures on Facebook

The prosecutor showed Detective Houston defendant’s photograph. Houston testified the photograph accurately reflected the way defendant looked when Houston had contact with him and upon his arrest. Houston then identified a picture of defendant and the tattoos on his forearms, pictures of defendant’s forearms and hands, a photograph of defendant on Facebook, a picture of Oak Park Bloods members with a caption, a Facebook photograph of defendant displaying gang hand signs, two Facebook photographs of defendant with captions, and a photograph of defendant holding a gun. Defendant argues these were all hearsay.

The photographs of defendant’s tattoos and of defendant holding a gun were admitted to show defendant’s gang membership. They were properly authenticated by Detective Houston for this purpose. Pictures of tattoos are a case-specific fact that can be established by a witness who saw the tattoo, or by an authenticated photograph. (Sanchez, supra, 63 Cal.4th at p. 677.) The foundation required for the photographs was merely sufficient evidence for a trier of fact to find that the photograph was what it purported to be, i.e., that it was a photograph of defendant or of other gang members. (See People v. Goldsmith (2014) 59 Cal.4th 258, 267.) Houston was able to identify defendant and his tattoos, thus the pictures were not inadmissible hearsay. To the extent those pictures also contained captions, the captions, too, were introduced to show that defendant was a gang member. As such, the captions were not admitted to establish that what was said was true, but merely that the statements were made. To the extent some of the content consisted of defendant declaring himself to be a Zilla, such statements were not hearsay because they fell under the exception for an admission of a party. (Evid. Code, § 1220.)

D. Gang Validation of Victim

Detective Houston testified he had researched the victim’s background and determined that he was a validated G-MOB member, who had been validated in 2009. Houston stated that Brown’s “jail classification remarks indicated that he needed to be separated from Zilla, Oak Park Bloods, and Crips because they were his enemies. [¶] Then in classification, it also indicated that he was validated as a G-MOB Starz associate in 2012.” Houston also testified generally that members of Starz commonly have star tattoos. Houston was then shown two autopsy photographs of the victim showing star tattoos on his hands. The autopsy photographs were properly authenticated by the forensic pathologist.

Defendant argues the testimony that Brown was a validated member of G-MOB in 2009 and 2012 and that his jail classification indicated he should be separated from rival gangs was hearsay. Detective Houston’s expert testimony about the 2009 validation of Brown was not a hearsay violation because the officer who validated Brown testified at trial. As previously indicated, an expert may not supply case-specific facts about which he has no personal knowledge, but if a witness with personal knowledge of case-specific facts testifies at trial, an expert my give an opinion about what those facts mean. (Sanchez, supra, 63 Cal.4th at p. 676.) That is what happened here. Officer Neil Cybulski testified that he transported Brown to juvenile hall in 2009, and once there completed a gang validation of Brown. Cybulski testified he determined Brown was a validated member of Starz based on his star shaped earring and Brown’s acknowledgement that he was a member of Guttah Boyz, and that Guttah Boyz was a younger subset of the Starz gang. On the basis of this information, Houston opined that the instant killing was motivated by gang rivalries.

Detective Houston’s testimony regarding Brown’s 2012 validation from his jail classification was improperly admitted hearsay. However, given the testimony regarding Brown’s earlier validation that was properly admitted, as well as the tattoos from Brown’s autopsy photos, the admission of this statement was harmless.

III

Motion for Mistrial

As indicated, Detective Houston testified regarding four instances of police contact with defendant. While testifying as to the third contact, he was asked to describe the contact, and he responded that defendant had a photograph of a handgun on his phone. Defense counsel immediately asked to approach. Outside the presence of the jury and of Houston, defense counsel stated that she and the prosecutor discussed what evidence the expert would testify about to prove defendant’s gang membership. They agreed there would be no discussion of the gun photograph listed in the report Houston had just testified about. Defense counsel asserted Houston had intentionally mentioned the gun picture, and asserted the statement was “incredibly prejudicial.”

The prosecutor acknowledged that she and defense counsel had reached an agreement regarding the introduction or omission of several items of evidence and that she had reviewed all of those items with Detective Houston just prior to the jury coming in. The prosecutor did not know why Houston had described the picture, but stated that she had given him a lot of information right before the jury came in. The prosecutor also argued the mistake was not serious enough to warrant a mistrial, since the jury would be seeing a much more recent photograph of defendant with a gun.

The court found that Detective Houston’s mistake was not intentional and did not rise to the level of a mistrial because it was one statement and there was no description of the gun. The court also found the statement was not prejudicial because another more recent gun photograph would come into evidence. The court noted the witness’s statement had been in violation of an agreement between the parties, but indicated the evidence might well have come in over an objection, had there been an objection to it. Although defense counsel never specifically asked for a mistrial, both the prosecutor and the court agreed the testimony in violation of the parties’ agreement did not warrant a mistrial.

Defendant now argues that the trial court abused its discretion when it denied the mistrial motion. Assuming defendant did in fact make a mistrial motion, we agree with the People that the trial court did not abuse its discretion in finding the testimony did not warrant a mistrial.

“A motion for mistrial presupposes error plus incurable prejudice.” (People v. Gatlin (1989) 209 Cal.App.3d 31, 38.) Neither is present here.

As indicated there was no court order excluding testimony regarding the gun photograph found on defendant’s phone in 2013. Defense counsel and the prosecutor merely had an agreement that the witness would not divulge the content of the photograph. The court indicated it may or may not have allowed the testimony had a motion to exclude been made.

A trial court should not declare a mistrial unless it is apprised of prejudice that is incurable by admonition or instruction. (People v. Lewis (2008) 43 Cal.4th 415, 501.) “ ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. . . .’ [Citation.] A motion for a mistrial should be granted when ‘ “ ‘a [defendant’s] chances of receiving a fair trial have been irreparably damaged.’ ” ’ [Citation.]” (People v. Collins (2010) 49 Cal.4th 175, 198-199.)

The statement defendant argues was incurably prejudicial is Detective Houston’s statement regarding a police contact in 2013: “He had a photograph of a handgun on his phone.” Defendant argues the statement was highly prejudicial because the murder was committed with a gun and the testimony “was devastating to appellant’s defense that Attaway fire[d] the shots.” We disagree.

The jury did not see the gun photograph, but only heard Houston’s brief statement. Another photograph of defendant holding a gun shortly before the murder was properly introduced. There was overwhelming evidence of defendant’s gang involvement, defense counsel conceded defendant’s gang involvement, and there were three eyewitnesses who testified he was the shooter. The brief comment was not prejudicial, and the trial court did not abuse its discretion when it decided not to declare a mistrial.

IV

Discretion to Strike Firearm Enhancement

The jury found true the allegation that defendant personally discharged a firearm causing death within the meaning of section 12022.53, subdivision (d). For the enhancement the court sentenced defendant to a consecutive term of 25 years to life. At the time defendant was sentenced, section 12022.53 did not allow the trial court to strike the firearm enhancement in the interest of justice. (See former § 12022.53, subd. (h); Stats. 2010, ch. 711, § 5.) Effective January 1, 2018, Senate Bill No. 620 amended section 12022.53 to provide that the court may strike or dismiss an enhancement in the interest of justice. (Stats. 2017, ch. 682, §§ 1 & 2.)

Defendant argues the amended statute is retroactive, and remand is appropriate to permit the trial court to exercise its discretion to strike the firearm enhancement. The People agree that the amended section is retroactive, but argue remand is not appropriate because the record shows the trial court would not have exercised its discretion to strike the enhancement. The People point to the trial court’s remarks during sentencing calling out defendant’s “disrespectful” attitude, lack of remorse, and the “cruel, callus vicious” nature of the crime. The People argue the trial court’s remarks indicate a remand would be futile.

“Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) We will follow the general rule and allow the trial court the opportunity to exercise its discretion in the first instance, however unlikely it may be that the trial court will exercise that discretion.

DISPOSITION

We remand to allow the trial court to exercise its sentencing discretion under Penal Code section 12022.53, subdivision (h) concerning whether to strike the firearm enhancement. The judgment is otherwise affirmed.

/s/

BLEASE, Acting P. J.

We concur:

/s/

HULL, J.

/s/

DUARTE, J.

Filed 12/11/19 Tavorn v. Shiomoto CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

XAVIER TAVORN,

Plaintiff and Appellant,

v.

JEAN SHIOMOTO, as Director, etc.,

Defendant and Respondent.

F076994

(Super. Ct. No. BCV-17-101412)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. Thomas S. Clark, Judge.

Middlebrook & Associates, Richard O. Middlebrook and Patrick R. Bowers for Petitioner and Appellant.

Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Kenneth C. Jones and Jaclyn V. Younger, Deputy Attorneys General, for Defendant and Respondent.

-ooOoo-

Appellant Xavier Tavorn filed a petition for writ of mandate to challenge the one-year suspension of his driver’s license by respondent Department of Motor Vehicles (Department). The superior court denied the petition. Tavorn appealed.

Tavorn contends the traffic stop that lead to his refusal to complete a blood-alcohol test was made without a reasonable suspicion that a crime was being committed. He contends the initial detention violated his rights under the Fourth Amendment and, therefore, the administrative decision suspending his license must be vacated. The superior court’s decision addressed this issue by stating “Officer Plotner had probable cause to contact [Tavorn]” and “[t]his was not contested in this proceeding.”

Tavorn’s primary challenge is based on determinations apparently made by a judge in a criminal proceeding. Those determinations are not part of the appellate record and, thus, cannot be considered in deciding this appeal. The appellate record, which includes the certified administrative record of proceedings, contains substantial evidence supporting the findings of fact underlying the superior court’s conclusion that Officer Plotner had a particular and objectively reasonable ground for stopping Tavorn’s vehicle. Consequently, the superior court did not commit reversible error. As to Tavorn’s secondary challenge, we conclude the statutory provision setting forth the consequences of failing to complete a chemical test need not be read verbatim to arrestees. Here, the warnings given to Tavorn adequately advised him the consequences of failing to take a test—namely, the suspension of his license for a year.

We therefore affirm the judgment.

FACTS

On Friday, September 30, 2016, Officer Plotner and Officer Avis of the California Highway Patrol were on routine patrol in a fully marked black and white vehicle. At approximately 1:15 a.m., while traveling north in the number one lane of Calloway Drive, south of Hageman Road, Officer Plotner saw a white pickup truck ahead of him in the left turn lane. As the pickup was making a U-turn, Officer Plotner observed the rear passenger in the pickup moving in a manner suggesting he was not wearing a seatbelt. While the pickup was still making the U-turn, Officer Plotner noticed a light on the rear license plate was inoperable. Officer Plotner testified, “And after he completed the u-turn I noticed when he made the turn, completed the turn, in the number 2 lane, the middle lane, his left tires touched over the broken white lines on the left hand side of the lane.” The pickup then slowed down and the driver turned on his right turn signal. Officer Plotner activated his vehicle’s red emergency lights and the pickup pulled into a convenience store parking lot.

Officer Plotner approached the stopped pickup on its driver’s side and smelled the odor of alcohol coming from its rolled down windows. Officer Plotner made contact with Tavorn, identified Tavorn by his driver’s license, and asked him to step out of the pickup. Officer Plotner then asked Tavorn a few questions, went into a driving-under-the-influence investigation, and placed Tavorn under arrest at approximately 1:34 a.m. A Mobile Video Audio Recording System (MVARS) was activated during the stop.

PROCEEDINGS

The administrative hearing on the suspension of Tavorn’s driving privileges took place on May 18, 2017, before Hearing Officer L. Williams. At the start of the hearing, Hearing Officer Williams stated the scope of the hearing was limited to the following issues: (1) Did Officer Plotner have reasonable cause to believe that Tavorn had been driving a motor vehicle in violation of Vehicle Code sections 23152 or 23153? (2) Was Tavorn lawfully arrested? (3) Was Tavorn told that if he refused to submit to a chemical test or failed to complete a chemical test his driving privilege would be suspended for one year or revoked for two or three years? (4) Did Tavorn refuse to submit to, or fail to complete, a chemical test after being requested to do so by Officer Plotner?

Hearing Officer Williams introduced four exhibits into evidence. Exhibit No. 1 was Officer Plotner’s “Age 21 and Older Officer Statement” dated September 30, 2016. This exhibit contained his statement of probable cause that lead to the stop of Tavorn’s vehicle, which included the following: “I observed a white pickup ahead of my patrol vehicle in the left turn lane. I observed a passenger in the rear middle seat moving around and possibly not wearing a seatbelt. The pickup made a u-turn and I observed the rear license plate light was inoperable. As the pickup completed the turn, the left tires of the pickup crossed over the broken white lines.” Exhibit No. 3 was a driving under the influence arrest—investigation report on form CHP 202, which included six pages of narrative to supplement the form CHP 202. In a paragraph describing his first observations, Officer Plotner included the same description quoted from Exhibit No. 1. Tavorn’s exhibit at the administrative hearing was the MVARS recording.

During the administrative hearing, Officer Plotner confirmed he completed the documents marked as Exhibits Nos. 1 and 3 while the events were fresh in his mind and the information in the reports was true and correct to the best of his knowledge. He also testified to the events leading up to the vehicle stop and subsequent arrest of Tavorn. Under cross-examination, Officer Plotner was asked about the first thing that drew his attention to the pickup—that is, the movement in the backseat that caused him to believe the passenger in the back might not be belted in. He replied:

“It appeared that he was—when I drew closer to the rear of the vehicle, the rear of the pickup, he was on the right side of the rear seat. He moved almost completely within the middle of that bench seat and then moved back which, you know, made me—you know, it’s hard for me to believe that he was wearing any kind of seatbelt with that much movement.”

When asked about the amount of time that passed between seeing the passenger’s movement until he approached the pickup, Officer Plotner stated it was less than a minute. Officer Plotner did not recall if the passenger was wearing a seatbelt when he shown his light into the back of the vehicle.

On June 2, 2017, Hearing Officer Williams issued a five-page notification of findings and decision. The decision suspended Tavorn’s driving privilege for one year, beginning June 11, 2017. The decision’s findings of fact about probable cause for the vehicle stop accepted the testimony of Officer Plotner as accurate, found probable cause existed, and listed the evidentiary support as Officer Plotner’s testimony, the Department exhibits, and the MVARS recording offered by Tavorn.

On June 23, 2017, Tavorn filed a petition for writ of mandate requesting the superior court to set aside the Department’s order suspending his driver’s license. Tavorn also requested a stay of the operation of that order. Tavorn’s petition alleged, among other things, that Officer Plotner did not properly advise him, as required by Vehicle Code section 23612, that his driving privilege would be suspended or revoked if he refused or failed to complete a required chemical test to determine his blood-alcohol content. In addition, the petition alleged the Department failed to meet its burden of demonstrating Tavorn “was fully advised under Vehicle Code section 23612.”

In August 2017, after the certified administrative record was lodged and the parties completed their briefing, the superior court held a hearing on the petition. After discussing the court order staying the suspension, the court asked counsel if there was a criminal case “waiting for my ruling on this?” Tavorn’s counsel answered, “Yes, Your Honor.”

The primary issue at the hearing was whether Tavorn had been advised as required by Vehicle Code section 23612 of the consequences of failing to submit to a chemical test. During argument, the superior court stated, “it seems to me the legal issue is the interpretation of Vehicle Code section 23612, whether it requires verbatim reading of the card or whether it suffices to substantively advise as to the matters that are covered by the card. [¶] Then it sounds like there may be a contention that there’s a factual issue as to whether or not the driver was advised, specifically advised, that his license would be suspended if he refused. [¶] Am I overlooking any issues?” Counsel for Tavorn responded, “I think that’s it, Your Honor.”

On August 28, 2017, the superior court issued a written ruling denying the petition for writ of mandate. The superior court found “Officer Plotner observed that a passenger in the vehicle appeared to be unseatbelted,” determined Officer Plotner had probable cause to stop the pickup, and noted “[t]his was not contested in this proceeding.”

With respect to the advisement, the superior court found that after the arrest Officer Plotner began to read to Tavorn from Form DS-367, but did not complete reading the form on that occasion. The court found there was no evidence Officer Plotner completed reading the entire contents of Form DS-367 or advised Tavorn of all the matters referenced in Vehicle Code section 23612, subdivision (a)(1)(D). However, the court found Officer Plotner advised Tavorn of the consequences of refusing to perform a chemical test at the scene and subsequently at the hospital. Tavorn was informed he would lose his license for at least a year if he did not take a test. The court supported its findings by noting the audio recording on the MVARS captured numerous statements to Tavorn that his driving privilege would be suspended for one year if he did not submit to a test.

The superior court concluded there was no legal requirement that the entire Form DS-367 be read as a precondition to license suspension. Similarly, the court concluded each and every provision in Vehicle Code section 23612, subdivision (a)(1)(D) need not be read to an arrestee as a precondition to license suspension.

On October 10, 2017, the superior court filed a judgment denying the petition for writ of mandate. The register of actions included in the clerk’s transcript shows no filing of a notice of entry of judgment. On February 6, 2018, Tavorn filed a notice of appeal, which was within the 180-day period specified by California Rules of Court rule 8.104(a)(1)(C). Thus, the appeal is timely.

DISCUSSION

I. LEGAL PRINCIPLES

A. Suspension of Licenses

Chapter 1 of division 6 of the Vehicle Code governs the issuance, expiration and renewal of drivers’ licenses. Chapter 2 addresses the suspension or revocation of licenses and is divided into four articles: (1) general provisions, (2) suspension or revocation by court, (3) suspension of revocation by Department, and (4) procedure. The article on procedure addresses both the administrative process and judicial review.

A final administrative decision by the Department to suspend an individual’s driver’s license is subject to judicial review in the superior court by means of a petition for writ of mandate. (Bussard v. Department of Motor Vehicles (2008) 164 Cal.App.4th 858, 862 (Bussard).) “The review shall be on the record of the hearing and the court shall not consider other evidence.” (Veh. Code, § 13559, subd. (a), italics added.) In conducting its review, the court considers whether “the department [1] exceeded its constitutional or statutory authority, [2] made an erroneous interpretation of the law, [3] acted in an arbitrary and capricious manner, or [4] made a determination which is not supported by the evidence in the record.” (Veh. Code, § 13559, subd. (a).) If the court finds one or more of these errors occurred, it “may order the department to rescind the order of suspension.” (Ibid.)

“A driver’s license is a fundamental right for the purpose of selecting the standard of judicial review of an administrative decision to suspend or revoke such license.” (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 398.) The superior court must exercise its independent judgment when reviewing the Department’s decision to suspend a driver’s license. (Bussard, supra, 164 Cal.App.4th at p. 863.) In comparison, the appellate court’s review of the superior court’s decision generally is limited to determining whether its factual findings are supported by substantial evidence. (Ibid.) In some appeals, questions of law are presented, such as a question of statutory interpretation. In deciding questions of law, the appellate court exercises its independent judgment. (Ibid.)

B. Fourth Amendment

The Fourth Amendment of the United States Constitution guarantees “[t]he right of the people to be secure in their persons … against unreasonable searches and seizures .…” The Fourth Amendment protects the people from arrest without probable cause and from investigatory detention without a reasonable suspicion. (Bailey v. United States (2013) 568 U.S. 186, 192; Terry v. Ohio (1968) 392 U.S. 1, 6–7.)

The Fourth Amendment permits brief investigatory detentions, such as a traffic stop, when the law enforcement officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (United States v. Cortez (1981) 449 U.S. 411, 417–418.) Determining whether a reasonable suspicion exists requires a consideration of “the totality of the circumstances—the whole picture” (id at p. 417) and depends “upon both the content of information possessed by police and its degree of reliability” (Alabama v. White (1990) 496 U.S. 325, 330). A mere “hunch” is not the equivalent of a reasonable suspicion. (Terry v. Ohio, supra, 392 U.S. at p. 27.) However, “the level of suspicion the standard requires is ‘considerably less than proof of wrongdoing by a preponderance of the evidence,’ and ‘obviously less’ than is necessary for probable cause, [citation].” (Navarette v. California (2014) 572 U.S. 393, 397.)

C. Blood-Alcohol Testing

Pursuant to Vehicle Code section 23612, anyone who drives a motor vehicle and is lawfully arrested for allegedly driving under the influence of alcohol is deemed to have consented to chemical testing of his or her blood or breath to determine his or her blood-alcohol level. (See Veh. Code, §§ 23152 [driving under the influence], 23153 [driving under the influence and cause bodily injury to another].) Pursuant to subdivision (a)(1)(D) of Vehicle Code section 23612, “[t]he person shall be told that his or her failure to submit to, or the failure to complete, the required breath or urine testing will result in a fine and mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153. The person shall also be told that his or her failure to submit to, or the failure to complete, the required breath, blood, or urine tests will result in (i) the administrative suspension by the department of the person’s privilege to operate a motor vehicle for a period of one year, (ii) .…”

II. REASONABLE SUSPICION FOR THE STOP OF TAVORN’S VEHICLE

A. Sufficiency of the Evidence

California’s Motor Vehicle Safety Act (Veh. Code, § 27315) makes the use of seatbelts by the driver and passengers of a motor vehicle mandatory. “A person shall not operate a motor vehicle on a highway unless that person and all passengers 16 years of age and over are properly restrained by a safety belt.” (Veh. Code, § 27315, subd. (d)(1).) An occupant is “‘properly restrained by a safety belt’” if “the lower (lap) portion of the belt crosses the hips or upper thighs of the occupant and the upper (shoulder) portion of the belt, if present, crosses the chest in front of the occupant.” (Veh. Code, § 27315, subd. (d)(2).)

Here, Officer Plotner’s testimony at the administrative hearing constitutes substantial evidence supporting the finding that he had a reasonable suspicion that the rear passenger in Tavorn’s pickup was not wearing a safety belt and, thus, was violating Vehicle Code section 27315. (See Evid. Code, § 411; In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [testimony of single witness may constitute substantial evidence].) Therefore, the superior court did not make an erroneous finding of fact when it impliedly determined the potential violation of the seatbelt requirement justified Officer Plotner’s decision to stop Tavorn’s pickup.

In addition, the superior court’s reference to “probable cause” for the investigative stop, rather than the reasonable suspicion standard, does not constitute prejudicial legal error. The evidence needed to create a “reasonable suspicion” is less than that needed for “probable cause.” (Navarette v. California, supra, 572 U.S. at p. 397.) Therefore, the superior court’s references to the more rigorous standard caused Tavorn no harm.

B. Procedural Matters

1. Forfeiture

As a second and independent ground for upholding the superior court’s denial of the petition for writ of mandate, we conclude Tavorn forfeited the Fourth Amendment claim by failing to raise it in the trial court. (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799–800.)

2. Scope of the Record

The proper scope of the record presented to the superior court is defined by Vehicle Code section 13559, subdivision (a). The statute provides that judicial “review shall be on the record of the [administrative] hearing and the court shall not consider other evidence.” (Veh. Code, § 13559, subd. (a).) Here, the superior court complied with this requirement. At the start of the hearing, the court asked if “this is going to be argued and submitted based on the transcript and the record” and received an affirmative answer from counsel. Also, to the extent that Tavorn contends the superior court should have considered the findings made by the judge handling the criminal case, that was impossible because the criminal case was still pending at the time of the superior court’s hearing on the petition for writ of mandate.

Alternatively, assuming for purposes of this appeal that the findings of the judge who handled the criminal case would be relevant to appellate review, those findings are not part of the appellate record. (See Christ v. Schwartz (2016) 2 Cal.App.5th 440, 450, fn. 5 [documents that are not part of the superior court’s record cannot be considered on appeal].) As a result, the description of those findings in Tavorn’s appellate briefs are not supported by cites to the record. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [references to matters in the record].) Accordingly, this court cannot accept Tavorn’s description of what happened in the criminal proceeding because that description is not supported by matters in the appellate record. Based on Vehicle Code section 13559, subdivision (a) and the basic principles of appellate procedure, we cannot overturn the superior court’s decision based on determinations that might have been made in the criminal proceeding against Tavorn.

III. SUFFICIENCY OF ADVISEMENT

At oral argument, counsel for Tavorn asserted the record established part of the advisement set forth in Vehicle Code section 23612, subdivision (a)(1)(D) was not read to Tavorn and the defective advisement prevented the Department from suspending his license. The deputy attorney general argued the issue has been waived because it was not raised in the administrative hearing.

On the question of statutory interpretation presented by Tavorn’s argument, we conclude substantial compliance with the requirements of Vehicle Code section 23612, subdivision (a)(1)(D) is all the law requires. We reject the interpretation that the contents of the statutory provision or Form DS-367 must be read verbatim to the arrestee. In People v. Harris (2015) 234 Cal.App.4th 671, the Fourth District stated that, “although Deputy Robinson inaccurately advised defendant that refusing to submit to a blood test would automatically result in a two- or three-year license suspension, he correctly informed defendant that his license would in fact be suspended if he refused to submit to a blood test. As the appellate division recognized in its opinion, failure to strictly follow the implied consent law does not violate a defendant’s constitutional rights. [Citations.]” (Id. at p. 692; see People v Brannon (1973) 32 Cal.App.3d 971 [failure to advise defendant charged with drunk driving of his statutory right to choose among three blood-alcohol tests did not render results of breathalyzer inadmissible in prosecution for misdemeanor drunk driving].) Here, we conclude Tavorn was adequately advised of the consequences of his failure to complete a blood-alcohol test when Officer Plotner specifically told him that he was going to lose his license for at least a year if he did not take a test.

DISPOSITION

The judgment denying Tavorn’s petition for writ of mandate is affirmed.

Filed 12/11/19 Oliver v. Worldwide Corporate Housing, L.P. CA2/5

(unmodified opinion attached)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

SHIRLEY OLIVER,

Plaintiff and Respondent,

v.

WORLDWIDE CORPORATE HOUSING, L.P.,

Defendant and Appellant. B291230

(Los Angeles County

Super. Ct. No. BC516791)

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

[There is a change in the judgment]

BY THE COURT:

Appellant’s Request for Clarification was filed November 25, 2019. After the court’s review, it is being treated as a Petition for Rehearing.

It is ordered that the opinion filed herein on November 14, 2019 is modified as follows:

On page 1, first paragraph last sentenced “Reversed.” Should be deleted and replaced with “Reversed and remanded with direction.”

On page 8, under DISPOSITION, delete the entire paragraph and replace with “The judgment is reversed and remanded for entry of judgment in favor of appellant Worldwide Corporate Housing, L.P. Appellant is awarded its costs on appeal.

______________________________________________________________

RUBIN, P. J. BAKER, J. MOOR, J.

Filed 11/14/19 Oliver v. Worldwide Corporate Housing, L.P. CA2/5 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

SHIRLEY OLIVER,

Plaintiff and Respondent,

v.

WORLDWIDE CORPORATE HOUSING, L.P.,

Defendant and Appellant. B291230

(Los Angeles County

Super. Ct. No. BC516791)

APPEAL from a judgment of the Superior Court of Los Angeles County, Paul A. Bacigalupo, Judge. Reversed.

Moranga & Morgenstern and Paul Andrew Elkort; Greines, Martin, Stein & Richland, Robert A. Olson and Mark J. Poster for Defendant and Appellant.

Grassini & Wrinkle, Roland Wrinkle and Robert B. Reagan, Jr. for Plaintiff and Respondent.

Fred J. Hiestand, General Counsel for Amicus Curiae, The Civil Justice Association of California.

__________________________

The question presented by this appeal is whether a landlord of a furnished apartment is strictly liable for injuries to a tenant caused by a latent defect in one of the furnishings. The Supreme Court in Peterson v. Superior Court (1995) 10 Cal.4th 1185 (Peterson) addressed this question with respect to a fixture in a hotel room in which the injured party was staying. The Court concluded that hotel owners/operators are not strictly liable for injuries resulting from defects in their premises. We find that the reasoning in Peterson applies as well to defective furnishings in a leased residence. While landlords that breach the applicable standard of care may be held liable under other tort principles for injuries resulting from defective furnishings, they are not strictly liable for such damages.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Worldwide Corporate Housing, L.P. (landlord) appeals from a judgment holding it liable for the death of a tenant, Lauren Humphrey, caused by a television that caught fire. Landlord leased a fully furnished studio apartment to Humphrey. The television was installed in the apartment when Humphrey moved in.

On November 13, 2012, a fire broke out in Humphrey’s apartment. When the firefighters arrived, the apartment was filled with smoke and Humphrey was deceased. The cause of death was determined to be carbon monoxide poisoning.

Humphrey’s mother, Shirley Oliver (plaintiff), sued Landlord and others for wrongful death based on theories of negligence and strict liability. Plaintiff settled with the television manufacturer for $1,000,000, and the court found the settlement to be in good faith. Landlord moved for summary judgment and for a directed verdict on strict products liability. The trial court denied the motions.

At trial, plaintiff proceeded on the theory that Landlord was strictly liable for injuries caused by the defective television. The jury found in favor of plaintiff and awarded her $3 million in damages. The jury further apportioned liability as follows: 80 percent to Landlord and 20 percent to the decedent. The net judgment, after apportioning liability and crediting the manufacturer’s $1,000,000 settlement with plaintiff was $1,400,000. In a motion for judgment notwithstanding the verdict, Landlord argued it was not strictly liable for plaintiff’s damages. The court denied the motion, and Landlord timely appealed.

DISCUSSION

California’s products liability doctrine “provides generally that manufacturers, retailers, and others in the marketing chain of a product are strictly liable in tort for personal injuries caused by a defective product.” (Peterson, supra, 10 Cal.4th at p. 1188.) Strict liability “is not imposed even if the defendant is technically a ‘link in the chain’ in getting the product to the consumer market if the judicially perceived policy considerations are not satisfied. Thus, a defendant will not be held strictly liable unless doing so will enhance product safety, maximize protection to the injured plaintiff, and apportion costs among defendants. [Citations.]” (Arriaga v. CitiCapital Commercial Corp. (2008) 167 Cal.App.4th 1527, 1537.)

The Peterson court was confronted with an injury caused by a fall in a hotel bathroom. The present appeal involves related, but not identical facts—a wrongful death caused by a television that caught fire in a rented apartment. The parties, understandably, have different views on whether this factual distinction has any legal significance. Landlord argues that the principles articulated in the Supreme Court’s opinion in Peterson mandate that landlords not be held strictly liable for such injuries. Plaintiff relies on Fakhoury v. Magner (1972) 25 Cal.App.3d 58 (Fakhoury) for the argument that a landlord is not the same as a hotel proprietor, and that a landlord that furnishes a large number of televisions should be considered a distributor of that product to which strict products liability applies. We decline to follow Fakhoury but rather conclude, under the reasoning of Peterson, strict liability does not apply here.

In Peterson, a hotel guest was injured when she slipped and fell in the bathtub. (Peterson, supra, 10 Cal.4th at p. 1189.) Our Supreme Court held that “neither landlords nor hotel proprietors are strictly liable on a products liability theory for injuries to their respective tenants and guests caused by a defect in the premises.” (Id. at pp. 1188–1189.) Instead, liability was limited to premises liability based on a breach of the standard of care. (Id. at pp. 1189.)

The Peterson court explained why imposing strict liability on retailers in the chain of distribution did not support the extension of strict liability to the case before it. “In some cases the retailer may be the only member of that enterprise reasonably available to the injured plaintiff. In other cases the retailer himself may play a substantial part in insuring that the product is safe or may be in a position to exert pressure on the manufacturer to that end . . . . Strict liability on the manufacturer and retailer alike affords maximum protection to the injured plaintiff and works no injustice to the defendants, for they can adjust the costs of such protection between them in the course of their continuing business relationship.” (Peterson, supra, 10 Cal.4th p. 1198.)

The court observed that most of the “reasons for imposing strict liability upon a retailer of a defective product do not apply to landlords or hotel proprietors who rent residential premises.” (Peterson, supra, 10 Cal.4th at pp. 1198–1199.) “A landlord or hotel owner, unlike a retailer, often cannot exert pressure upon the manufacturer to make the product safe and cannot share with the manufacturer the costs of insuring the safety of the tenant, because a landlord or hotel owner generally has no ‘continuing business relationship’ with the manufacturer of the defective product.” (Id. at p. 1199.) “The mere circumstance that it was contemplated customers of these businesses would use the products . . . or be benefited by them does not transform the owners of the businesses into the equivalent of retailers of the products. [Citation.]” (Id. at pp. 1199–1200.)

Peterson expressly overruled Becker v. IRM Corp. (1985) 38 Cal.3d 454 (Becker). (Peterson, supra, 10 Cal.4th at p. 1190.) The plaintiff in Becker was injured by a shower door in an apartment he rented from the defendant. (Becker, at p. 458.) The Supreme Court held the defendant strictly liable, reasoning that “a lease for a dwelling contains an implied warranty of habitability” and, thus, a landlord makes an “implied assurance of safety.” (Id. at pp. 462, 465.)

The Becker court relied on Fakhoury in support of its holding. (Becker, supra, 38 Cal.3d at p. 464.) In Fakhoury, a couch in a furnished apartment injured the plaintiff, and the court held the landlord strictly liable for the defective piece of furniture. (Fakhoury, supra, 25 Cal.App.3d at p. 63.) The Becker court concluded that “the rationale” of Fakhoury “establishing the duties of a landlord and the doctrine of strict liability in tort, requires us to conclude that a landlord engaged in the business of leasing dwellings is strictly liable in tort for injuries resulting from a latent defect in the premises . . . .” (Becker, at p. 464 (emphasis added).)

We find significant that when the Peterson court framed the issue before it, the court stated it could treat Becker in one of two ways. “We granted review in the present case to decide whether Becker was wrongly decided and should be overruled, or, if Becker is not overruled, whether the principles underlying that decision apply outside the landlord-tenant context and warrant the imposition of strict products liability upon the proprietor of a hotel for an injury to its guest caused by a defect in the hotel premises.” (Peterson, supra, 10 Cal. 4th at p. 1188.) If the court had taken the second path, Peterson and Becker could have coexisted with different rules for landlords and hotel proprietors. But it did not. “Upon reexamining the basis for Becker’s holding with regard to the proper reach of the products liability doctrine, we conclude that we erred in Becker in applying the doctrine of strict products liability to a residential landlord that is not a part of the manufacturing or marketing enterprise of the allegedly defective product that caused the injury in question.” (Ibid.)

Plaintiff attempts to draw a distinction between defects in the premises (the bathtub in Peterson) and a defective furnishing (television in the present case) provided by a landlord. We see nothing in Peterson that would allow for different treatment.

The purpose of strict liability “ ‘is to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.’ [Citation.]” (O’Neil v. Crane Co. (2012) 53 Cal.4th 335, 348.) By contrast, landlords are not obligated insure the safety of their tenants. Nor, on this record, would holding landlords strictly liable lead to safer products or the spreading of loss through the chain of commerce. Whether the defect is with a fixture or a furnishing, it does not always follow that landlord has the ability to exert pressure upon the manufacturer to make the product safe. A defendant landlord often has no continuing business relationship with manufacturers that would allow it to share the costs of insuring the safety of the tenant. The Peterson court cited one commentator who predicted that, in fact, the “cost of insuring risk will not be distributed along the chain of commerce but will probably be absorbed by tenants who will pay increased rents.” (Peterson, supra, 10 Cal.4th at p. 1199.)

We hold that Peterson precludes strict liability against a landlord of a furnished apartment where, as on the facts here, a tenant is injured by a defective furnishing. The trial court erred in denying Landlord’s motion for judgment notwithstanding the verdict.

DISPOSITION

The judgment is reversed. Appellant Worldwide Corporate Housing, L.P. is awarded its costs on appeal.

RUBIN, P. J.

WE CONCUR:

BAKER, J.

MOOR, J.

Filed 12/12/19 P. v. Daniels CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ARLANCE DION DANIELS,

Defendant and Appellant.

E073099

(Super.Ct.No. BAF1800757)

OPINION

APPEAL from the Superior Court of Riverside County. Becky Dugan and Randall Donald White,† Judges. Reversed.

Garrick Byers, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

I

INTRODUCTION

Following a search of his vehicle by law enforcement, defendant and appellant Arlance Dion Daniels was found with a gun and ammunition in his car. After the trial court denied defendant’s motion to suppress the gun and ammunition discovered in his vehicle, defendant pleaded guilty to being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1); count 1)) and being a felon in possession of ammunition (§ 30305, subd. (a); count 2). He also admitted that he had suffered one prior strike conviction (§§ 667, subds. (c) & (e)(1); 1170.12, subd. (e)(1)). The trial court subsequently granted defendant’s motion to strike his prior strike conviction and sentenced him to a total term of 16 months in state prison with 34 days of credit for time served.

On appeal, defendant contends the trial court erred in denying his suppression motion because: (1) the impoundment of his vehicle was not authorized; (2) the good faith exception to the exclusionary rule did not apply; (3) the impoundment of his vehicle was not achieved pursuant to a policy concerning the exercise of discretion; and (4) the impoundment of the vehicle did not serve a community caretaking function. The People concede that defendant’s suppression motion should have been granted because the officers did not have probable cause to search the vehicle, and the inventory search conducted by the officers was a pretext for an investigatory search and did not serve a community caretaking function. We agree with the parties and reverse the judgment.

II

FACTUAL AND PROCEDURAL BACKGROUND

On June 13, 2018, at 8:35 p.m., a Hemet Police officer, J.F., was dispatched to a gas station on North State Street in Hemet in response to a call reporting a Black male adult, approximately 25 years old, wearing a white shirt, black pants, and a bandage on his right hand, trying to sell a gun. Dispatch reported that the man was in a dark gray Ford Explorer, with a particular license plate number, and was parked along the curb of north Alessandro Avenue. When Officer J.F. arrived at the gas station, he did not see the Ford Explorer. However, Hemet Police corporal, I.B., located the Ford Explorer and a man, later identified as defendant, who matched the description provided by dispatch, two blocks west of the gas station.

Officer J.F. and Corporal I.B. approached defendant and advised him why they were contacting him. Corporal I.B. asked defendant whether he had a gun, and defendant responded, “No.” The officers asked defendant if they could search his vehicle, and defendant responded in the negative and refused to provide consent. At some point, dispatch informed the officers that defendant’s vehicle registration for his Explorer had expired on January 12, 2018. The dispatcher did not tell the officers the registration had been expired for more than six months. The dispatcher simply gave the officers the expiration date of the vehicle registration. Officer J.F. and Corporal I.B. both mistakenly believed (purportedly due to a mathematical calculation error) that defendant’s registration had expired six months and one day earlier, rather than five months and one day earlier. Based on this mistaken belief, the officers decided to impound defendant’s vehicle under Vehicle Code section 22651.

Officer J.F. and Corporal I.B. had been police officers for approximately 10 years. Officer J.F. explained that they chose to impound defendant’s vehicle, not based upon a belief that it was a danger to the community, but rather to bypass the requirement of getting a warrant to search it. Officer J.F. acknowledged that the vehicle was not a danger to the community. He also stated that once defendant declined to give consent, the “normal procedure” at that point was to “[s]end him on his way.” When defense counsel asked Officer J.F., “Couldn’t you have gotten a warrant,” Officer J.F. answered, “We could’ve.” Officer J.F. also stated, “In this type of situation, we wouldn’t generally get a warrant.” When defense counsel asked Corporal I.B. if there was an option to get a search warrant, the officer answered, “It is an option. But that would’ve been an unreasonable amount of time to detain him.” When defense counsel asked Corporal I.B. if the vehicle was towed to avoid having to get a search warrant, he responded, “It was an option. I don’t know that it was the ultimate reason.” Corporal I.B. also stated that anytime a vehicle’s registration is expired for more than six months “we have the option to tow it” and “it is liable to be towed.”

Before the officers had the vehicle towed and impounded, Corporal I.B. conducted an inventory search of defendant’s car pursuant to department policy and procedure to document the items inside the vehicle on a “CHP 180 Form” for liability reasons. Officer J.F. explained that “Any time we tow a vehicle, we’re mandated to do an inventory search,” that it is a policy and procedure of the Hemet Police Department, and it is “[m]ore of a liability issue.” Officer J.F. also stated, “We need to inventory everything in the vehicle and then write it down—if anything of importance is in there in the vehicle.” Corporal I.B. asserted that the Hemet Police Department’s policy regarding inventory searches is that “we need to make a count of vehicle damage, high-dollar items, and fill out the CHP 180 form.”

During the search, Corporal I.B. found a 9 mm semiautomatic handgun and a magazine containing 11 unexpended rounds inside a blue bag. Thereafter, the officers ran defendant’s criminal rap sheet and determined that he had previously been convicted of four or five felonies. The officers then placed defendant under arrest for being a felon in possession of a firearm.

After finding the gun and ammunition, Officer J.F. contacted the reporting party “Teresa.” Teresa informed Officer J.F. that she was sitting in her vehicle when a male transient by the name of “John” walked up to her, and told her that a Black male adult standing next to a Ford Explorer had asked him if he wanted to buy a gun. “John” pointed out the man and the vehicle to Teresa, and she called 911. Teresa identified defendant as the person John had pointed out to her.

On July 2, 2018, defendant filed a motion to suppress the gun and ammunition evidence found in his vehicle.

On July 25, 2018, the People filed opposition to defendant’s suppression motion, arguing the search was a lawful inventory search and the officers made a mistake of fact and did not act in bad faith.

A hearing on defendant’s suppression motion was held on July 25, 2018, along with the preliminary hearing. At that time, defense counsel argued that the officers had conducted an improper inventory search because: (1) defendant’s registration had been expired for only five months rather than six, as required by Vehicle Code section 22651; and (2) the inventory search was not performed for a community caretaking purpose.

The prosecutor argued that the officers had the statutory authority to tow the vehicle, regardless of whether they were acting for a community caretaking purpose, if six months had elapsed. The prosecutor also argued that although the officers were incorrect about how many months the registration had been expired, they did not act in bad faith and therefore the court should deny the suppression motion under the good faith exception to the exclusionary rule.

The trial court acting in its capacity as magistrate inquired whether the officers had probable cause to search based upon Teresa’s call to police, explaining: “[T]he facts are such that somebody reports to the police that there’s a man trying to sell a gun on the streets. And it’s a very, very specific description. It seems to be very consistent with the defendant’s appearance. And then there’s a car that’s described with a very specific license plate. And it’s clear that the gun is being sold without following any of the federal regulations for the gun sales because he’s just offering it on the street. So I think that’s a fair inference. So what about the argument that the police just had a right based on all that information that was consistent to just search the car?”

Defense counsel argued there was no probable cause because the call to police was based upon an anonymous tip, which did not allow the officers to evaluate the tipster’s credibility. The trial court then opined that it would have endangered the public for the officers to just send defendant on his way when they knew he might have a gun in his car that he was trying to dispose of in an illegal fashion and that might “just be [an] exigent circumstance.” Thereafter, the court then denied defendant’s motion to suppress, explaining: “Well, I don’t think there was any bad faith with the officers. I think it was poor counting, I guess, as you might call it. And I don’t think that—I’m almost convinced that they could’ve searched the car anyway under those circumstances because of the specificity to the description of what was going on. So the motion in this case is denied.”

On November 19, 2018, defendant renewed his suppression motion before the superior court (§ 1538.5, subd. (i)). He also filed a motion to set aside the information (§ 995). Following argument, the superior court denied defendant’s renewed motion to suppress and motion to set aside the information.

On May 2, 2019, defendant pleaded guilty to being a felon in possession of a firearm (§ 29800, subd. (a)(1)) and being a felon in possession of ammunition (§ 30305, subd. (a)). He also admitted that he had suffered one prior strike conviction (§§ 667, subds. (c) & (e)(1); 1170.12, subd. (e)(1)).

On June 17, 2019, the trial court granted defendant’s motion to strike his prior strike conviction and sentenced him to a total term of 16 months in state prison.

On June 27, 2019, defendant filed a timely notice of appeal from the denial of his suppression motion.

III

DISCUSSION

Defendant argues the trial court erred when it denied his motion to suppress the gun and ammunition found in his car. Specifically, he argues (1) Vehicle Code section 22651, subdivision (o)(1)(A), did not give the officers authority to impound his car since his registration had been expired for only five months, rather than six, as required by the statute; and (2) the court improperly determined that the good faith exception to the exclusionary rule applied because the officers used the investigatory search as a pretext to conduct a warrantless search of the car. The People agree that defendant’s motion to suppress the evidence should have been granted because the inventory search was a pretext to conduct an investigatory search and did not serve a community caretaking function, and the officers did not have probable cause to search defendant’s vehicle.

A. Standard of Review and General Principles

We evaluate challenges to the admissibility of a search or seizure solely under the Fourth Amendment. (People v. Carter (2005) 36 Cal.4th 1114, 1141; People v. Evans (2011) 200 Cal.App.4th 735, 742 (Evans).) When reviewing the denial of a suppression motion, we defer to the trial court’s express or implied findings if supported by substantial evidence, but independently assess, as a matter of law, whether the challenged search or seizure was reasonable under the Fourth Amendment. (People v. Lomax (2010) 49 Cal.4th 530, 563; People v. Hughes (2002) 27 Cal.4th 287, 327.) “Thus, while we ultimately exercise our independent judgment to determine the constitutional propriety of a search or seizure, we do so within the context of historical facts determined by the trial court.” (People v. Tully (2012) 54 Cal.4th 952, 979.)

The Fourth Amendment protects individuals against unreasonable searches and seizures by law enforcement and other government officials. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1, 8-9.) A search conducted without a warrant is presumed to be illegal. (People v. Williams (2006) 145 Cal.App.4th 756, 761 (Williams).) At trial, the “prosecution has the burden of establishing the reasonableness of a warrantless search” (People v. Jenkins (2000) 22 Cal.4th 900, 972), and it is the prosecutor’s burden to establish the officers’ actions were justified by an exception to the warrant requirement. (Williams, at p. 761.) A prosecutor can justify a warrantless search of an automobile on a variety of grounds, including: (1) the search was part of the inventory of a lawfully impounded vehicle (South Dakota v. Opperman (1976) 428 U.S. 364, 375-376 (Opperman)); and (2) the vehicle was readily mobile and there was probable cause to believe it contained contraband (Maryland v. Dyson (1999) 527 U.S. 465, 466-467). On appeal, it is defendant’s burden to demonstrate error. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549.)

B. Inventory Search

The United States Supreme Court has recognized that automobiles are frequently impounded as part of a local police agency’s community caretaking function, and police agencies will routinely secure and inventory a vehicle’s contents in that process. (Opperman, supra, 428 U.S. at pp. 368-369.) The Supreme Court has deemed such warrantless inventory searches reasonable under the Fourth Amendment. (Id. at p. 373.) “As part of their ‘“community caretaking functions,”’ police officers may constitutionally impound vehicles that ‘jeopardize . . . public safety and the efficient movement of vehicular traffic.’ [Citation.] Whether ‘impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and the police officers’ duty to prevent it from creating a hazard to other drivers or being a target for vandalism or theft.’ [Citation.] If officers are warranted in impounding a vehicle, a warrantless inventory search of the vehicle pursuant to a standardized procedure is constitutionally reasonable. [Citation.] . . . Although a police officer is not required to adopt the least intrusive course of action in deciding whether to impound and search a car [citation], the action taken must nonetheless be reasonable in light of the justification for the impound and inventory exception to the search warrant requirement. Reasonableness is ‘[t]he touchstone of the Fourth Amendment.’ [Citation.]” (Williams, supra, 145 Cal.App.4th at pp. 761-762, quoting Opperman, supra, 428 U.S. at pp. 368-369, 372.)

The prosecution must prove the existence of a standard policy governing searches following the impoundment of a vehicle and it must also prove that the police followed that policy. (People v. Williams (1999) 20 Cal.4th 119, 138, citing Florida v. Wells (1990) 495 U.S. 1, 4-5.) “Just as inventory searches are exceptions to the probable cause requirement, they are also exceptions to the usual rule that the police officers’ ‘[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.’. . . [C]ourts will explore police officers’ subjective motivations for impounding vehicles in inventory search cases, even when some objectively reasonable basis exists for the impounding.” (People v. Torres (2010) 188 Cal.App.4th 775, 787-788.)

In this case, we agree with the parties that the People did not meet its burden of establishing that the search was authorized by the impound inventory search doctrine. First, it is undisputed that the registration on defendant’s vehicle had expired on January 12, 2018, and the search was conducted on June 13, 2018. It is undisputable that defendant’s vehicle registration had been expired for five months and one day, not six months. Hence, the officers mistakenly relied on Vehicle Code section 22651 to impound defendant’s vehicle. Second, Officer J.F. admitted that he and Corporal I.B. decided to tow defendant’s vehicle, not because it posed a danger to the community, but rather because they could then bypass the search warrant requirement.

Neither officer testified regarding the existence of a standard policy governing impound inventory searches, or that the officers complied with that policy. There is no evidence in the record of a standard police policy governing impound inventory searches, what the policy was, or whether the officers conducted themselves in compliance with the policy. It was the People’s burden to establish the foregoing. (People v. Williams, supra, 20 Cal.4th at p. 138.) Absent such evidence, the trial court’s ruling was erroneous.

Moreover, a reasonably well-trained officer would have known the search was illegal, even if defendant’s registration had been expired for six months. As such, the good faith exception to the exclusionary rule did not apply. (See People v. Harris (2015) 234 Cal.App.4th 671, 700 [the exclusionary rule is inapplicable to evidence obtained by “‘nonculpable, innocent police conduct.’”])

The evidence in this case demonstrates that the inventory search in this case was not done for any community caretaking purpose pursuant to a standard policy governing impound inventory searches and was a pretext for an investigatory search. Accordingly, the search was not a constitutionally valid inventory search.

C. Probable Cause to Search

Under this exception, “police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.” (Evans, supra, 200 Cal.App.4th at p. 753; see United States v. Ross (1982) 456 U.S. 798, 821; People v. Johnson (2018) 21 Cal.App.5th 1026, 1034.) “In this class of cases, a search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained.” (Ross, at p. 809.) “In other words, the police may search without a warrant if their search is supported by probable cause.” (California v. Acevedo (1991) 500 U.S. 565, 579.)

When police have no basis for suspicion other than an anonymous tip, we must decide whether, under the totality of circumstances, the tip “gave the detaining officers a ‘“particularized and objective basis” for suspecting legal wrongdoing.’” (People v. Dolly (2007) 40 Cal.4th 458, 472, Kennard, J., concurring.) Whether an anonymous tip gives police a particularized and objective basis for suspecting illegal activity depends on both the information conveyed by the tip and its degree of reliability. (See Navarette v. California (2014) 572 U.S. 393, 397; Florida v. Harris (2013) 568 U.S. 237, 244-245.)

“[A]n allegation by an informer cannot by itself supply probable cause for a warrant unless it meets the requirements of Aguilar v. Texas (1964) 378 U.S. 108 . . . as refined in Spinelli v. United States (1969) 393 U.S. 410 . . . . Under the Aguilar-Spinelli test, hearsay information of criminal activity will support a search warrant only if affidavits establish that the informant spoke with personal knowledge and that his [or her] information was reliable. [Citation.]” (People v. Kershaw (1983) 147 Cal.App.3d 750, 753-754, fn. omitted (Kershaw).) When probable cause is based upon hearsay, the “‘veracity,’” “‘reliability,’” and “‘basis of knowledge’” of the person supplying the hearsay are relevant factors for the court to consider. (People v. Camarella (1991) 54 Cal.3d 592, 600-601 (Camarella).) Different rules thus apply when determining the reliability and veracity of hearsay statements made by informants, who are agents of the police, “‘citizen informants,’” who are witnesses to or victims of crime, and anonymous tipsters. (People v. Ramey (1976) 16 Cal.3d 263, 268-269 (Ramey); accord People v. Scott (2011) 52 Cal.4th 452, 475-476.)

Private citizens or citizen informants who are witnesses to or victims of a criminal act are generally considered reliable without any corroboration, absent circumstances that would cast a doubt upon their information. Thus, neither a previous demonstration of reliability nor subsequent corroboration is ordinarily required to establish probable cause when a witness to or a victim of criminal activity reports his or her observations in detail to the authorities. (Ramey, supra, 16 Cal.3d at p. 269; Kershaw, supra, 147 Cal.App.3d at p. 756; People v. Brown (2015) 61 Cal.4th 968, 982.) However, this rule presumes that the police are aware of the identity of the person providing the information and of his or her status as a true citizen informant. (Ramey, at p. 269.)

“[U]nverified information from an untested or unreliable informant” is ordinarily insufficient to establish probable cause “unless it is ‘corroborated in essential respects by other facts, sources or circumstances.’” (People v. Johnson (1990) 220 Cal.App.3d 742, 749, disapproved on other grounds in Camarella, supra, 54 Cal.3d at p. 606, fn. 6; see People v. Gotfried (2003) 107 Cal.App.4th 254, 265 [“‘Any rookie officer knows uncorroborated, unknown tipsters cannot provide probable cause for an arrest or search warrant’”]; People v. Spencer (2018) 5 Cal.5th 642, 664.) Corroboration of an anonymous tip may be adequate to support a finding of probable cause if police investigation uncovers probative indications of criminal activity along the lines suggested by the tipster. (Gotfried, at p. 264.) Even observations of seemingly innocent activity can constitute corroboration, if the anonymous tip casts the defendant’s activity in a suspicious light. (Ibid.; see, e.g., Illinois v. Gates (1983) 462 U.S. 213, 225-227 [anonymous letter predicted a detailed travel pattern on a certain date of a couple making a drug run to Florida; the date and travel pattern was corroborated by police surveillance].)

Here, the record demonstrates that a transient named “John” told “Teresa” that defendant tried to sell him a gun. John pointed defendant out to Teresa, who provided a detailed description of defendant and the car he was driving to 911. The fact that Officer J.F. was able to contact Teresa after defendant’s arrest showed that she had provided some type of contact information to police, although the record is unclear as to how that transpired. Nonetheless, Teresa did not personally observe defendant trying to sell the gun, so she was not a witness or a victim, and she had no firsthand knowledge of defendant’s alleged criminal activity. (See People v. Smith (1976) 17 Cal.3d 845, 852 [“An untested citizen-informant who has personally observed the commission of a crime is presumptively reliable”].) Teresa was merely reporting what John had observed, and there was no evidence that the officers or the dispatcher had information relating to John’s identity or his contact information.

In Florida v. J.L. (2000) 529 U.S. 266 (J.L.), an anonymous caller reported to police that a young African-American male standing at a particular bus stop in a plaid shirt was carrying a gun. Some unspecified time after police received the tip, officers were instructed to respond. They arrived at the bus stop about six minutes later and saw three Black males, one of whom, J.L., was wearing a plaid shirt. “Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct.” (Id. at p. 268.) They saw no firearm, “and J.L. made no threatening or otherwise unusual movements.” (Ibid.) The officers approached J.L., frisked him, and seized a gun from his pocket. (Ibid.)

The high court held that the anonymous tip was insufficient to justify the detention and search “absent some independent corroboration of the reliability of the tip and tipster’s assertion of illegal conduct. [Citation.] As the court stated, ‘[a]ll the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.’ [Citation.] The high court stressed that the tip contained no ‘predictive information’ (such as predicting the suspect’s future behavior) that might demonstrate the tipster had inside information of concealed criminal activity.” (People v. Wells (2006) 38 Cal.4th 1078, 1084 (Wells).)

In Wells, supra, 38 Cal.4th 1078 an anonymous caller reported that a blue van was “‘weaving all over the roadway’” on a certain stretch of highway. (Id. at p. 1081.) Police located a van matching the description given, but it was neither weaving nor speeding, and the driver was apparently obeying all relevant traffic laws. However, based solely on information provided in the anonymous tip, police stopped the vehicle, found the driver appeared to be intoxicated, and arrested her. (Ibid.) Our Supreme Court upheld the search and seizure, distinguishing J.L. because a drunk driver weaving on the highway posed “a far more grave and immediate risk to the public than a report of mere passive gun possession [as in J.L.]” (Wells, at p. 1087); the state had a strong interest in preventing drunk driving (ibid.); the anonymous caller had presumably viewed the van weaving, and therefore had personal knowledge of the crime (ibid.); the level of personal intrusion accompanying a traffic stop is considerably less than a patdown search such as that conducted in J.L. (Wells, at p. 1087); drivers have a reduced expectation of privacy when in their cars on public roadways due to the state’s pervasive driving regulations (ibid.); and the anonymous caller’s description of the van was sufficiently detailed to support an inference that it was reliable (id. at p. 1088).

Here, unlike in Wells, Teresa had no personal knowledge of defendant trying to sell the gun. She was not a witness or a victim, and she had no firsthand knowledge of defendant’s alleged criminal activity. And because John was an anonymous tipster, his tip required corroboration to establish probable cause. Neither Officer J.F. nor Corporal I.B. testified to anything they had observed that would have corroborated John’s claim defendant had tried to sell him a gun. Furthermore, Teresa’s accurate description of defendant’s location and appearance was insufficient to establish John’s claim was reliable. (J.L., supra, 529 U.S. at pp. 268, 271-272.) Accordingly, there was no probable cause to support the search of defendant’s car.

Based on the foregoing, we agree with the parties that the trial court erred in denying defendant’s motion to suppress the gun and ammunition found in his vehicle.

IV

DISPOSITION

The judgment is reversed. The parties may file a stipulation for immediate issuance of the remittitur pursuant to California Rules of Court, rule 8.272(c)(1).

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

MENETREZ

J.

Filed 12/12/19 Marriage of Henkel CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re the Marriage of LESTER H. HENKEL and JENNY HARMAN HENKEL. H044147

(Monterey County

Super. Ct. No. DR53024)

LESTER H. HENKEL,

Respondent,

v.

JENNY HARMAN HENKEL,

Appellant.

Appellant Jenny Harman Henkel appeals from the trial court’s August 2016 judgment in this dissolution action. She challenges the court’s decision regarding three offsets or credits against a stipulated $300,000 equalization payment due to her from respondent Lester H. Henkel. Jenny contests the court’s decision that she was responsible for (1) half of the unpaid amount of $54,695.05 due on a line of credit taken against the joint tenancy residence, (2) $41,135.02 in unrepaid loans that Jenny had taken from Lester’s separate property business, and (3) half of $240,000 in cash that Lester had placed in her safekeeping and never seen again. Jenny also contends that the trial court abused its discretion in ordering her to pay $65,000 in sanctions under Family Code section 271. We reject her contentions and affirm the judgment.

I. Background

Jenny and Lester met in 1980. They lived together as a couple for more than 20 years without marrying. They did not share any bank accounts and kept their assets separate. By the mid-1990’s, Lester was experiencing serious health problems. In 1999, Lester bought a three-bedroom house in Pebble Beach as his separate property. In 2000, Lester transferred title to the Pebble Beach house into joint tenancy with Jenny. At some point, Lester took a second mortgage on the Pebble Beach home and used the money to pay off a loan on his separate property real estate. In 2003, Lester was diagnosed with Amyotrophic Lateral Sclerosis (ALS). By that time, he was no longer able to use one of his legs, and he was not able to drive.

After being together for 24 years, Lester and Jenny married in 2004. In December 2004, Jenny pressured Lester into creating a trust and executing a “Spousal Property Agreement” by which he unknowingly transmuted his separate property into community property and placed it in the trust. In 2006, Jenny, without Lester’s consent, hired 24-hour care for Lester (at a cost of $12,000 a month), which Lester did not believe was necessary. Lester and Jenny never shared a bedroom again. At about the same time, Jenny prevented Lester from continuing to go to the office from which he ran his separate property business.

In 2008, without Lester’s knowledge or consent, Jenny declared herself to be the sole trustee of the trust and seized control of all of Lester’s finances and his business by having a friend of hers who was a gastroenterologist declare Lester to be incapacitated. Also without Lester’s knowledge, Jenny obtained $57,000 from a line of credit against the Pebble Beach house.

At some point between 2008 and 2011, Lester withdrew $244,000 in cash from a bank account and gave it to Jenny to put in a safety deposit box. Lester testified that these funds were his separate property. He never saw those funds again. Jenny was the only person with access to the safety deposit box, and the funds were not deposited into any bank account. Jenny told Lester that she spent those funds “[j]ust on expenses.”

Jenny asked multiple doctors to declare Lester to be incompetent, but those doctors concluded that he was mentally competent. She also unsuccessfully tried to have Lester placed in a residential care facility against his will. Lester had become increasingly dependent on Jenny because his ALS was progressing, and he eventually could not even speak. It was only in late 2010 that he acquired the ability to use “text-to-speech software on his computer for communications.”

In 2011, Lester learned that Jenny had wrested control of his assets and business from him. In 2012, Lester engaged an attorney to assist him in reclaiming control over his financial affairs and business. Jenny tried to restrict Lester’s attorney’s access to him and refused to allow a psychiatrist to visit Lester in their home to evaluate his competency. She and her attorney also refused to meet with Lester and his attorney. Lester’s attorney was forced to file a conservatorship petition just to be able to ensure that Lester could meet with his attorneys and the psychiatrist. Jenny responded by filing a competing petition seeking to be named the conservator of Lester’s person and finances. Lester’s attorney’s petition was granted, and a professional conservator was appointed conservator of Lester’s person. Jenny’s petition was denied.

Even after the conservatorship was established, it was “very difficult” to obtain information about Lester’s finances or pay his bills due to Jenny’s interference. Lester incurred $97,000 in fees and costs in the conservatorship proceeding. The conservatorship remained in force until Jenny finally left the Pebble Beach home in May 2013. The conservatorship would not have been necessary if Jenny and her attorney had cooperated with Lester and his attorney.

In June 2012, Lester filed for dissolution of his marriage to Jenny. The issue of the validity of the “Spousal Property Agreement” was bifurcated and tried first. In 2014, the court set aside that agreement and ordered Lester’s property restored to its separate property status. When Lester recovered control of his business in October 2014, he discovered that Jenny had taken $41,135.02 in unrepaid loans from his business for her personal use while she had controlled it. He also learned that $54,695.05 remained unpaid on the line of credit that Jenny had used to obtain funds against the Pebble Beach home.

In 2016, the trial court issued an extensive statement of decision. The parties stipulated that Lester owed Jenny $300,000 as her share of money taken out of a 2006 refinancing of the Pebble Beach home and used to pay off a loan on Lester’s separate property, and the court ordered Lester to make an equalization payment to Jenny of that amount less credits and offsets. The court found that the Pebble Beach home, which was the only community asset, had no equity and decided that Jenny was responsible for half of the line of credit against it, $27,347.53. This was one offset/credit. The court ordered a second offset/credit for the $41,135.02 that Jenny had taken for her personal use from Lester’s separate property business. A third offset/credit was for half of the $240,000 that Jenny had taken and not returned. Although Lester made many other claims against Jenny, the court rejected the remainder of his claims.

In addition to these three offsets/credits, the court concluded that Jenny should pay Lester $65,000 in sanctions under section 271 to partially recompense Lester for the fees and costs he had incurred in the conservatorship proceedings. The court found that Jenny had unreasonably caused him to incur these unnecessary expenses. It concluded that this award would not pose a financial burden to Jenny because it could be paid out of her equalization payment. Overall, Jenny’s equalization payment of $300,000 was reduced by $27,347.53, $41,135.02, $120,000, and $65,000. As a result, her equalization payment was reduced to $46,517.45.

The court ordered Lester to pay Jenny $4,000 a month in spousal support and to pay $6,000 toward her attorney’s fees. Judgment was entered on August 1, 2016. Jenny timely filed a notice of appeal from the judgment. (Cal. Rules of Court, rule 8.108(b).)

II. Analysis

Jenny challenges the sufficiency of the evidence to support the trial court’s findings that there should be credits or offsets against Jenny’s $300,000 equalization payment. She also contends that the court should not have imposed $65,000 in sanctions under section 271.

“In general in reviewing a judgment based upon a statement of decision following a bench trial, ‘any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision. [Citations.]’ [Citation.] In a substantial evidence challenge to a judgment, the appellate court will ‘consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]’ [Citation.] We may not reweigh the evidence and are bound by the trial court’s credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment.” (Estate of Young (2008) 160 Cal.App.4th 62, 75-76.) “We ‘start with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant’s burden to demonstrate otherwise.’ [Citation.] As such, the appellant is required to provide a summary of all of the evidence, not merely his or her own evidence, with citations to the record. [Citations.]” (Carrington v. Starbucks Corp. (2018) 30 Cal.App.5th 504, 518.)

Although she purports to challenge the sufficiency of the evidence to support the court’s decision, Jenny’s opening brief contains no citations whatsoever to the reporter’s transcript of the lengthy trial and cites just one of the dozens of exhibits that were introduced at that trial. The same is true of her reply brief. The only citations in her briefs are to that one exhibit, her own posttrial brief, the trial court’s proposed statement of decision (but not its final statement of decision), and the judgment.

“It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations. [Citations.] Briefs which do not meet this requirement may be stricken.” (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) “ ‘The appellate court is not required to search the record on its own seeking error.’ [Citation.] Thus, ‘[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived. [Citation.]’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; accord Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

Jenny’s appellate briefs do not satisfy her duty to provide appropriate citations to the record in support of her appellate arguments. We could properly deem Jenny’s appellate arguments to be waived due to the inadequacy of her briefing, but we will exercise our discretion to consider the merits of her contentions. That does not mean that Jenny will be relieved of her duty to demonstrate error, as we must begin with the presumption that the record contains substantial evidence to support the trial court’s findings. Jenny still must bear the burden of demonstrating that the court’s findings are not supported by substantial evidence.

Jenny challenges the court’s decision that there should be an offset or credit against the equalization payment for half of a line of credit against the Pebble Beach home. Jenny complains that she “did not at anytime have control of these funds,” that the court did not identify an “account number,” and that the money obtained from this line of credit “was used to lower the encumbrance on [Lester’s] separate property building.” The evidence presented at trial reflected that Jenny obtained funds from this line of credit during a period of time when she controlled all of Lester’s financial affairs. The trial court as the factfinder was entitled to discredit Jenny’s claim that these funds were spent on Lester’s separate property.

Jenny contends that the court should not have credited Lester for $41,135.02 for loans Jenny took from his business and did not repay because the loans “were not corroborated by anything more than a ledger sheet . . . .” She also asserts that these funds were “used to pay community expenses” and were taken from the business to avoid taxes. The business’s financial records showed that Jenny had taken these funds from Lester’s business without his knowledge during the period when she controlled that business. The trial court, as the factfinder, was entitled to discredit Jenny’s claim that she used these funds for community expenses.

Jenny argues that the court should not have credited Lester with $120,000 based on the money withdrawn and placed in a safety deposit box under her control. She acknowledges that “[t]here were emails from [Lester to Jenny] to verify this alleged withdrawal,” but she argues that the court should have rejected Lester’s claim because “[t]here were no bank records to support this.” She states that she testified that there was no such withdrawal (though she does not cite her testimony), and she argues that Lester’s trial brief did not mention this claim.

The evidence presented at trial supported the trial court’s decision that Jenny had taken these funds. Lester testified that he withdrew $244,000 from his bank account and gave it to Jenny to put in a safety deposit box to which only she had access. He never saw those funds again, and Jenny told him that she spent the money “on expenses.” The trial court could reasonably conclude from this evidence that Jenny had taken these funds for her own purposes and require her to reimburse Lester for half of the funds.

Finally, Jenny challenges the court’s decision to award Lester $65,000 in sanctions. She claims that this award was “unreasonable” because “a financial accounting cleared [Jenny] of any misappropriation of funds,” she acted on the advice of her attorney, and the amount of the sanctions award was an “unreasonable financial sanction” on her. She maintains that the sanctions award was inequitable because Lester had more assets and income than she did and was excessive because Lester had already been reimbursed for the conservatorship costs by his settlement with her attorney.

Section 271 provides: “Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates 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. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.” (§ 271, subd. (a).)

“A sanction order under Family Code section 271 is reviewed under the abuse of discretion standard. ‘ “The trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order . . . .” [Citation.]’ [Citation.]” (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82; accord In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.)

Jenny misunderstands the basis for the court’s order. It was not based on financial improprieties of any kind. The sanctions order was based on Jenny’s conduct in interfering with Lester’s attorney’s physical access to him and her refusal to meet with Lester and his attorney to discuss the issues between them. Her conduct frustrated any hope of settling the matter without litigation and increased Lester’s legal costs. The entire conservatorship action would have been unnecessary if only Jenny would have freely allowed access to Lester. The trial court was not obligated to credit Jenny’s claim that everything she did was on the advice of her attorney.

The fact that Lester had settled his elder abuse action against Jenny’s former attorney did not establish that he had been fully compensated for the costs of the conservatorship proceeding. Jenny’s former attorney’s potential liability for elder abuse may have encompassed a variety of things that caused Lester harm, including the creation of the Spousal Property Agreement and the trust. The $75,000 settlement between Jenny’s former attorney and Lester may not have compensated Lester for any of the costs he incurred for the conservatorship proceedings.

Finally, while Lester had more assets and income than Jenny, he was not required to demonstrate a financial need for an award. (§ 271, subd. (a).) And the court could have reasonably concluded that the award would not impose an “unreasonable financial burden” on Jenny since it could be paid out of what remained of her equalization payment.

In sum, we reject Jenny’s challenges to the sufficiency of the evidence to support the court’s decision to allow the credits and offsets against her equalization payment, and we find no abuse of discretion in the court’s award of sanctions under section 271.

III. Disposition

The judgment is affirmed.

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P. J.

_____________________________

Grover, J.

Marriage of Henkel

H044147

Filed 12/12/19 P. v. Petty CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIEL LORENZO PETTY,

Defendant and Appellant.

H045503

(Monterey County

Super. Ct. No. SS152144)

Defendant Daniel Lorenzo Petty was convicted by jury trial of first degree murder (count one; Pen. Code, § 187, subd. (a)), torture (count two; § 206), and felony unlawful driving or taking of a vehicle (count three; Veh. Code, § 10851, subd. (a)). The jury found true allegations, in connection with the murder and torture counts, of intentional discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)). The jury also found true torture (§ 190.2, subd. (a)(18)) and lying in wait (§ 190.2, subd. (a)(15)) special circumstances. The trial court sentenced defendant on the murder count to a term of life without the possibility of parole plus 25 years to life for the firearm enhancement, on the torture count to a term of 25 years to life plus 25 years to life for the firearm enhancement, and on the driving or taking a vehicle count to a consecutive three-year term.

On appeal, defendant argues: (1) the trial court prejudicially erred by admitting his confession because it was obtained after he invoked his right to silence; (2) there was insufficient evidence to support the felony conviction for driving or taking because the prosecution failed to prove the value of the vehicle exceeded $950; (3) in the alternative, the trial court committed prejudicial instructional error by failing to specify that a felony conviction for driving or taking required a showing that the value of the vehicle exceeded $950; (4) the abstract of judgment should be corrected to reflect that the sentence for torture is concurrent to the sentence for murder; and (5) the abstract should be corrected to account for actual time spent in custody.

We agree that the abstract must be corrected to show that the torture and murder terms are concurrent, and to take account of defendant’s custody credit. We also conclude that reversal is required due to prejudicial instructional error as to the driving or taking count, and that a remand is appropriate to allow the prosecution either to accept a reduction to a misdemeanor or to retry the offense as a felony. We reject defendant’s other contentions.

I. Background

On December 12, 2015, a Marina resident discovered Francisco Aguayo’s body near a hiking trail that runs along the sand dunes between the beach and highway. The hiking trail was near Dunes Drive in Marina. Aguayo had been reported missing on December 11, 2015, after he failed to return home.

An autopsy revealed numerous and significant injuries to the body, many of which had been inflicted while Aguayo was alive. There was a gunshot wound to the back of the head. The bullet did not pierce his skull, and Aguayo was alive when he was shot. In addition, Aguayo suffered numerous facial injuries, including blunt force injuries, lacerations, fractures, and a quarter-inch hole in the skull of his forehead. The hole in Aguayo’s forehead caused a laceration and contusion to his brain. Many of the facial injuries occurred while Aguayo was alive. The autopsy also revealed that Aguayo had been stabbed in the neck, while alive, and that he had been strangled, also while alive. Aguayo’s head, neck, and shoulder and his upper right arm were burned. It was unclear if he was alive when he was burned. Aguayo’s clothing had the odor of an accelerant, possibly gasoline. The pathologist opined that Aguayo died from multiple traumatic injuries, and that it took “minutes” for him to die.

Police searched Aguayo’s laptop and discovered that he had responded to several of defendant’s Craigslist ads for “m4m” sexual encounters. A search of Aguayo’s and defendant’s phone records and email accounts showed that they had communicated on November 15, November 27, and December 10. On each occasion, they negotiated a price and a place to meet for sex. In the December 10 exchange, Aguayo and defendant agreed to meet in front of Lucky’s in Marina. A video surveillance tape of the area near Lucky’s showed Aguayo, at around 11:30 a.m., driving his pickup truck into and around the parking lot and then leaving several minutes later. The video did not capture whether anyone entered or exited the truck.

Between 1:00 p.m. and 2:00 p.m. on December 10, 2015, there were at least four phone calls between Aguayo’s cell phone and a cell phone belonging to defendant’s friend, Scotty Johnson. Aguayo and Johnson had never previously communicated with each other. Cell phone and cell tower records showed that Aguayo’s phone contacted Johnson’s phone at 1:36 p.m., while Johnson’s phone was in Salinas. At 2:05 p.m., there was another call, when Johnson’s phone was in Marina. At 2:34 p.m., Johnson’s phone was in Marina, but soon moved back to Salinas. At around 10:00 p.m., Johnson’s phone moved to an area near River Road in Chualar, and then back to Salinas. The next morning, on December 11, Aguayo’s truck was found by a farm worker abandoned near River Road.

On December 21, 2015, police interviewed defendant at a police station. The interview was recorded on video. During the interview, defendant admitted killing Aguayo, and said he had done so because “wanted to see . . . how I would feel.” He said he thought it was “funny,” and he “wasn’t even angry” when he killed Aguayo. He explained, “With the back of the gun, I beat him. He begged and I beat him. He wouldn’t shut up. I zapped him in his throat and I watched his blood pour out.” Defendant said that he threw Aguayo “on the ground and he was crawling and he was crying and he was begging for his life, and I told him I’m gonna kill you, and I was laughing. And he was like why, I thought you loved me. I have money, I have a family. All I do is work. I’m like fuck your family, I don’t care. I don’t care about you.” Defendant claimed that it took Aguayo 30 minutes to die. He said he returned the next day to burn Aguayo’s body because he wanted to “smell his flesh.” He said he took Aguayo’s truck and hid it under a bridge. His plan was to “chop the car” and sell it to buy drugs.

While being transported after his interview, defendant made additional unsolicited statements that were recorded and transcribed. He reaffirmed statements made during his interview, including that Aguayo “begged” him, that he stabbed him in the throat, that he shot him behind the head, and that he repeatedly beat him. He said that Aguayo, at some point, “sounded like he was gasping for air. Then I came back because he tried to get back up. So I kicked him in the gut and he fell back over. And I started whupping him with the gun some more.” Defendant added again that he “beat the dog shit out of him with the fucking strap,” and that he “was cracking his head in.” He said he went back to see “how badly I bruised him. His fucking face was all lumped up.” Defendant said he then spit in Aguayo’s face.

At trial, defendant testified on his own behalf. In general, the defense theory was that defendant did not torture Aguayo and did not commit premeditated murder, but rather defendant killed Aguayo in response to provocation.

Defendant described the circumstances of the killing. After Aguayo picked defendant up, Aguayo asked defendant how he was doing. Defendant replied that he “was not in the mood” because he “just got in an argument with [his girlfriend].” Aguayo asked where defendant wanted to go. Defendant responded, “[i]t’s up to you.” They first drove to the airport, where they had gone before, but defendant said he did not want to have sex there because there were people in nearby cars. They eventually drove to Dunes Drive in Marina. Defendant smoked some methamphetamine, and Aguayo unzipped his pants and told defendant to “suck him up.” Defendant did so. Because joggers were nearby, defendant asked that they go elsewhere. They exited the truck and looked for a more suitable location. Aguayo asked defendant what was wrong, and defendant replied that it was a “personal” issue. Aguayo asked if it involved defendant’s girlfriend, but defendant said, “I just want to chill out.” Defendant told Aguayo to “drop it,” that it was “none of your business,” and that he did not want to talk about it. Because defendant “said it like that,” Aguayo became “upset” and said: “Well, suck me up, you little bitch.” He grabbed defendant’s head and shoulder, but defendant pushed Aguayo away. “It just escalated from there. [Defendant] just started punching him.”

By that point, defendant was “furious,” and the two were grabbing and fighting each other on the ground. They both tried to get up. Defendant pulled out his gun and shot Aguayo. Aguayo said, “You fucking — you stupid bitch,” and then “tried to go for the gun.” Defendant tried shooting Aguayo again, but the gun “clicked,” so he “tried hitting him in the face” with the gun. Defendant then took Aguayo to the ground again and punched him repeatedly. Defendant then took out his knife and “stabbed him.” That was the end of the struggle. Defendant was “shocked.” He “realized [he] just snapped,” that he “was scared,” and that he “literally didn’t know what to do.”

II. Discussion

A. Admission of Confession

Defendant challenges the admission of the confession that he made to police while being interviewed. He contends that he invoked his right to remain silent multiple times, but that the officers ignored him and continued to question him.

1. Factual Background

Detective Oliver Minnig and Sergeant Mike Bruno interrogated defendant. At the beginning of the interrogation, Minnig read the Miranda advisements, which defendant said he understood, and he began speaking with the officers.

During the initial portion of the interrogation, Minnig and Bruno established that defendant knew and had sex with Aguayo. Minnig told defendant that they had arrested him for Aguayo’s murder. Defendant denied killing Aguayo. Defendant expressed concern that Aguayo had been killed. Defendant appeared relaxed and engaged when talking with Minnig and Bruno. The video reflected that defendant was sitting up, alternating between leaning slightly forward and back as he conversed. Defendant eventually asked Minnig and Bruno to tell him “what evidence do you guys have that you guys are charging me with murder.” In response to further questioning, defendant repeated with greater insistence, “What evidence do you guys have?” About 19 minutes into the interview, defendant briefly leaned forward, and appearing frustrated, put his hands on his face and said something unintelligible into his hands. He leaned back in his chair, somewhat slouched in a reclined position, and crossed his arms. Bruno then told defendant that they knew that defendant was the last person to see Aguayo alive before he was murdered. The detectives revealed to defendant that they had read the e-mail exchanges between Aguayo and defendant, and that they knew about the calls to defendant’s friend, Johnson. Defendant denied calling Johnson, and claimed he went back to his girlfriend’s house after the December 10 sexual encounter with Aguayo. Defendant continued to lean back in his chair with his arms crossed.

At about 26 minutes into the interrogation, Bruno revealed to defendant that while defendant was in jail, they were monitoring him, and that they heard defendant admit to killing Aguayo. Minnig added that defendant had provided details that were not public about the murder, and that “only the person who was there would know [those details].” Minnig asked defendant to “help us out” and tell them what happened. Defendant responded, still leaning back in his chair, arms crossed: “I wanna go to sleep.” His only physical movement was crossing his left foot over his right foot. Bruno reminded defendant that “we were listening” to his jail conversation. Defendant responded, “That’s capital murder right there.” Bruno confirmed, “Well, it’s, it’s murder, I mean, and then that’s what we’re here [about], that [sic] what we’re here to talk to you about. We’re gonna talk to you about why did [Aguayo] die that day. What did [he] do . . . .” Defendant responded, “I wanna go to sleep. I don’t wanna talk no more.” Minnig asked again, “help us out. Help yourself out. I mean, that’s what the reality is, I mean, you gave details, like I said, those details aren’t in the news, they aren’t in the press.” Defendant again said, “I wanna go to sleep.” Minnig noted again, “I know what’s in the news and what’s in the press,” and again defendant responded, “I wanna go to sleep.” Minnig said, “Okay.” Defendant then said, “You guys fuckin’ (inaudible).” Bruno asked, “What was that?” Defendant responded, “I’m not sayin’ anything else. I wanna go to sleep.” Minnig then said, “Well . . . .” Defendant continued, “How long you think they’re gonna keep me here?” Defendant leaned forward and started pulling on his shoe. Minnig responded, “Well, it depends, I don’t know.”

Defendant then asked if he was going to “go to County [jail].” Minnig responded that he would. Minnig then said, “Well, let’s . . . ,” but defendant interrupted him to say, “You guys are not hearing nothing from me, um, so . . . .” Minnig continued, telling him, “You’re not denying anything.” Still pulling on his shoe, defendant replied, “I did, I did. I told you I don’t know the fuck you guys are talkin’ about. I didn’t murder [Aguayo]. I went back to my girlfriend’s house. You guys are high as hell, so (inaudible).” Minnig noted again, “There’s a lotta details you know” about the crime. Defendant responded, again while pulling on his shoe, “I don’t know, I love that you guys aren’t listening to me. You guys are probably listening to those other guys talking about whatever they’re talking about in there . . . .” Bruno then said that it was “pretty clear” that defendant was involved. Defendant replied, “Yeah, so, I wanna go back and sleep just ‘cause . . . .” After Bruno interjected by saying defendant’s name, defendant continued, “I don’t wanna talk to you guys.” When defendant said this, he was still leaning forward, looking at his shoes, pulling and fidgeting with them. He then stopped playing with his shoe, sat upright and leaned towards Minnig and Bruno. The detectives asked why defendant tried to burn the body. In response, defendant said, “I wonder what they’re having for lunch. Is that a brush or something, Sir?” Defendant began to reach for his shoe again. Minnig asked again why he tried to burn the body. Defendant said, “I’m gonna take a nap.” Defendant then put his head down on his arms, which were resting on the table, and closed his eyes. Bruno said, “Taking a nap is not gonna . . . bring back [Aguayo]. It’s not gonna change the fact that you’re in here for murder.” Defendant did not respond or move. Minnig then asked again why defendant went back to burn the body. Defendant kept his head down and did not move. Bruno then summarized the charges: “You’re being arrested for murder, you’re being arrested for robbery, you’re being arrested for tryin’ to destroy a dead body . . . those are your charges.” Defendant repositioned his head on his arms. Defendant then opened his eyes and watched as Bruno got up from his chair and left the room.

Minnig then got up from his chair and moved to leave. But before he could take more than a step, with his head still down, defendant said: “Hold on. What’s considered capital murder?” Minnig responded, “That’s really up to, uh, [the] DA and judges and everything. That, I have nothing to do with that.” Defendant asked, raising his head off the table, “Can I get lethal injection for [capital murder]?” Minnig replied, “Yeah,” but added that he “couldn’t even tell you the last time they executed anybody in this state.” He said “that’s not my call,” “it comes down to the judges and the DA’s and defense attorneys and all that stuff,” and “[I] can’t really give you advice on any of that stuff.” Defendant replied, “I want the lethal injection.” Minnig asked why. Defendant said, “I wonder how that (inaudible) feels.” Minnig said, “They say you just go to sleep.” “That’s what they claim, but I don’t know.” Defendant then said, smiling, “I shot him behind the head. That was funny.” Defendant laughed. As described previously, defendant proceeded to confess to murdering Aguayo.

2. Procedural Background

Defendant’s trial counsel moved to exclude defendant’s statements to the police on the ground that they were obtained in violation of Miranda. The prosecution opposed the motion and sought to admit the entire interview.

The trial court held an evidentiary hearing, at which only Minnig testified. The prosecutor asked Minnig why he continued to question defendant after defendant said, “I don’t wanna talk no more.” Defense counsel objected, arguing that the answer would elicit irrelevant information about Minnig’s subjective intent. The court overruled the objection. Minnig answered: “There was a back and forth with him. So he would first say he would go to sleep. And then he kept on asking questions. [¶] I recall, you know, from the interview — I mean, obviously now I have seen the — the video over again. But from my own recall, I just remember hanging up and ‘I want to go to sleep.’ And so I — you know, I already had my questions formulated, and I continued on asking my questions.” Minnig said he continued to interrogate defendant “because, you know, he would come back to us with questions and reengage with us. So I was, you know, thinking we were still conversating. We’re still having an active dialogue.” He concluded there was no more “active dialogue” when defendant put his head down and Minnig moved to leave. However, he continued to question defendant after he “looked at me and said, ‘Hold on.’ ”

The court reviewed the video of the interrogation. The court described defendant’s demeanor, until minute 20 of the video, as “calm,” “casual,” and “comfortable.” The conversation consisted of open-ended questions. To the court, it was “very clear during those first 15 minutes or so, that the conversation [was] actually being controlled by [defendant].” There were “no pointed questions,” and defendant was “making the decision about where the conversation [was] going.” At around 20:32, when Bruno told defendant that he was arrested for murder, the court observed that defendant’s voice became “more animated” and the conversation became “heated,” meaning “the questions [were] becoming more pointed.” From minutes 23 to 28, the court noted that defendant “does try to take over the conversation again.” He asks, several times, “what evidence do you have?” The detectives ask more questions and start providing information to defendant at around the 30-minute mark. They talk about Johnson and about the calls made from Aguayo’s phone. Then, the court noted, at around minute 36, the detectives begin to tell defendant about what they know, and at that point, he begins saying, “I just want to go to sleep” several times.

The court summarized its thoughts: “I wanted to lay this out just to show the — kind of how the inquiry and the communication progresses there. [¶] When the defendant is in control of the conversation, things are — he’s very happy with it. [¶] And when there are more pointed questions that are asked, he’s not as happy. [¶] So with that being the background of this, the law that applies to Mirandized statements — once the defendant has indicated that he will talk to officers, the law is that they can. [¶] So the defendant can re-invoke his right to an attorney or to remain silent. And in doing that, the invocation of the right to silence or to an attorney is a question of fact to be decided in light of all the circumstances. And that’s one of the reasons that I went through and described the circumstances I saw.”

The court made the following factual findings: “One is that the defendant did not by his actions or body language do anything to indicate that he wanted this to stop. He didn’t get up and go to the door. He didn’t stop talking. He didn’t stop engaging. So there was nothing by his body language that indicated that he was invoking. [¶] Two, the defendant did continue to engage each time he made a statement showing his displeasure with the conversation. So each time the defendant said something about wanting to take a nap or wanting to go to sleep, it was followed up by him continuing to engage.” “[E]ach time, they said something to him, he ultimately responded as opposed to shutting down.” “[H]e did not clearly unequivocally invoke. The officers did make attempts to leave, which was even more interesting. One officer got up. And I think that was at about Minute 38 — I’m sorry — Minute 40. The officer gets up to leave. And that’s the officer by the door.” Then, “Minnig . . . goes to get up. And the defendant, the minute he sees Minnig begin to get up, starts reengaging with him. [¶] The Court does find that the defendant was showing — in making these statements — was showing his frustration that he was not able to control the conversation when he was being asked pointed questions.” In summary, the court found that the statements were “voluntarily made,” and “there was no unequivocal, unambiguous invocation of his right to remain silent.”

3. Analysis

“A statement obtained in violation of a suspect’s Miranda rights may not be admitted to establish guilt in a criminal case. [Citation.] ‘In reviewing the trial court’s denial of a suppression motion on Miranda and involuntariness grounds, “ ‘ “we accept the trial court’s resolution of disputed facts and inferences, and its evaluations of credibility, if supported by substantial evidence. We independently determine from the undisputed facts and the facts properly found by the trial court whether the challenged statement was illegally obtained.” ’ ” [Citations.] Where, as was the case here, an interview is recorded, the facts surrounding the admission or confession are undisputed and we may apply independent review.’ [Citation.] We review issues concerning the suppression of such statements under federal constitutional standards. [Citation.]” (People v. Jackson (2016) 1 Cal.5th 269, 339.)

“ ‘[T]he question of ambiguity in an asserted invocation must include a consideration of the communicative aspect of the invocation—what would a listener understand to be the defendant’s meaning. The high court has explained—in the context of a postwaiver invocation—that this is an objective inquiry, identifying as ambiguous or equivocal those responses that “a reasonable officer in light of the circumstances would have understood [to signify] only that the suspect might be invoking the right to counsel.” . . . [¶] In certain situations, words that would be plain if taken literally actually may be equivocal under an objective standard, in the sense that in context it would not be clear to the reasonable listener what the defendant intends.’ [Citation.] ‘A defendant has not invoked his or her right to silence when the defendant’s statements were merely expressions of passing frustration or animosity toward the officers, or amounted only to a refusal to discuss a particular subject covered by the questioning.’ [Citation.]” (People v. Sanchez (2019) 7 Cal.5th 14, 49 (Sanchez).)

In People v. Jennings (1988) 46 Cal.3d 963 (Jennings), the court considered the following purported invocation: “ ‘I’ll tell you something right now. You’re scaring the living shit out of me. I’m not going to talk. You have got the shit scared out of me,’ and ‘I’m not saying shit to you no more, man. You, nothing personal man, but I don’t like you. You’re scaring the living shit out of me . . . . That’s it. I shut up.’ ” (Id. at p. 977.) The court held that, in context, these statements did not amount to an unambiguous invocation of the right to remain silent, explaining: “Were we to base our decision solely on the reporter’s transcript of those portions of the interview on which [the defendant] relies, his claim that he invoked his right to silence would appear meritorious. On a review of the full tape and consideration in context of the words on which [the] defendant relies a different picture emerges.” (Id. at p. 978.) The statements, the court reasoned, were a reflection of the defendant’s temper and an expression of anger toward an officer who was questioning him. The court concluded: “When [the] defendant made the statements he claims were an invocation of his rights he was addressing [that officer]. Viewing the tape, observing [the] defendant’s demeanor before, during, and after the statements, and considering the context in which [the] defendant made the statements on which he relies here, we conclude that the statements reflect only momentary frustration and animosity toward [that officer].” (Id. at p. 978.)

In People v. Martinez (2010) 47 Cal.4th 911 (Martinez), the court concluded that, in context, the statements, “ ‘I don’t want to talk anymore right now,’ ” and “ ‘That’s all I can tell you,’ ” did not amount to an unambiguous and unequivocal invocation of the right to remain silent. (Id. at pp. 949-951.) In Martinez, a detective gave Miranda advisements to the defendant, who agreed to an interview. (Martinez, at pp. 944-945.) When the defendant said, “ ‘That’s all I can tell you,’ ” the detective ended the interrogation. (Id. at p. 944.) The next morning, two other detectives met with the defendant, reminded him that he had previously waived his Miranda rights, and continued to interrogate him. (Martinez, at pp. 944-946.) During the interrogation, the defendant said, “ ‘I don’t want to talk anymore right now.’ ” In response, the detectives said that they intended to take a break, urged the defendant to “ ‘think about it,’ ” and said that they would come back and talk to him. (Id. at pp. 951-952.) The defendant replied, “ ‘Okay,’ ” and the detectives resumed their questioning after a break. (Id. at p. 952.)

In concluding that the defendant did not invoke his right to remain silent during the initial interrogation, the court determined that the defendant’s remark, “ ‘That’s all I can tell you,’ ” was reasonably viewed as merely meaning, “ ‘That’s my story, and I will stick with it.’ ” (Martinez, supra, 47 Cal.4th at pp. 949-950.) The court concluded that the defendant’s statement during the second interview, “ ‘I don’t want to talk anymore,’ ” also did not amount to a clear invocation of his right to silence. (Id. at pp. 951-952.) The court reasoned that the context in which the statement is made matters. This statement came “during the course of an interrogation,” rather than at the beginning of the interrogation or contemporaneous to the initial Miranda advisements. (Martinez, at p. 951.) The court also observed that the detectives employed “ ‘good police practice’ ” aimed at clarifying the defendant’s statement by proposing a break and encouraging him to “ ‘think about it.’ ” (Id. at pp. 951-952.) The court reasoned that the “[d]efendant could have responded negatively and explained that he would not be interested in talking further, even after a break. He did not. Instead, by saying, ‘Okay,’ he in effect agreed to allow the detectives to return for more questioning.” (Id. at p. 952.)

In People v. Thomas (2012) 211 Cal.App.4th 987 (Thomas), the court held that the defendant’s statement, “I ain’t talking no more and we can leave it at that,” was not an unambiguous invocation of his right to remain silent. (Id. at p. 1006.) Rather, in context, “it was merely an expression of momentary frustration both with the detectives’ failure to accept [the defendant’s] repeated insistence that he was not present during the shootings and with Deputy Ramirez’s immediately preceding statement that [the defendant] was ‘hiding something.’ ” (Ibid.) The court explained that the transcript of the interview showed that the defendant “repeatedly expressed frustration during the interview.” (Ibid.) “When viewed in conjunction with his earlier expressions of frustration during the interview,” the purported invocation “was another expression of momentary frustration and, at most, was an ambiguous invocation of the right to remain silent.” (Id. at p. 1007.)

Here, as in Jennings, Martinez, and Thomas, defendant’s statements did not amount to an unambiguous and unequivocal invocation of his right to remain silent. In context, and considering defendant’s demeanor and behavior before, during, and after the statements, we conclude that a reasonable officer would have concluded that the statements reflected defendant’s fatigue or frustration with the course of the questioning and the revelation that officers had listened to him previously discuss details of the murder.

Defendant contends that the detectives “ignored” repeated unambiguous invocations of the right to remain silent. Not so. Defendant’s statement—“I wanna go to sleep. I don’t wanna talk no more”—could reasonably have been interpreted as either fatigue with the fact that his denials had been ineffective or frustration with the revelation that the police knew much more about the murder than defendant initially thought. A request for a break from interrogation, whether due to fatigue or frustration, is not the functional equivalent of an unambiguous invocation of the right to remain silent. (Sanchez, supra, 7 Cal.5th at p. 49; Thomas, supra, 211 Cal.App.4th at p. 1006; Jennings, supra, 46 Cal.3d at pp. 978-979.) Adding to the ambiguity, this statement followed two previous statements where defendant stated that he wanted to sleep. A reasonable officer would have understood defendant’s subsequent statement, “I don’t wanna talk no more,” in context, not as an invocation of the right to remain silent, but rather as an additional expression of frustration or fatigue.

Defendant’s subsequent comments made clear that his prior ambiguous statement did not amount to an unambiguous invocation of the right to remain silent. After defendant stated that he wanted to sleep and not talk anymore, Minnig followed up by asking defendant to “help us out.” Defendant responded, “I wanna go to sleep.” Minnig followed up again, and defendant again responded, “I wanna go to sleep.” Minnig then said, “Okay.” Defendant then continued the conversation, saying, “You guys fuckin’ (inaudible).” Bruno asked, “What was that?” Defendant said, “I’m not sayin’ anything else. I wanna go to sleep.” Minnig then said, “Well . . . .” Again, rather than ceasing the conversation, defendant continued it by asking, “How long you think they’re gonna keep me here?” As in Martinez, defendant “could have responded negatively and explained that he would not be interested in talking further,” but “[h]e did not.” (Martinez, supra, 47 Cal.4th at p. 952.) Instead, immediately after making his statement, “I’m not sayin’ anything else,” defendant continued to talk to police, “in effect agree[ing] to allow the detectives to [continue] questioning.” (Ibid.) A reasonable officer would have understood defendant’s continued questions as confirmation that he did not mean to invoke the right to remain silent. (Sanchez, supra, 7 Cal.5th at p. 49.)

The rest of defendant’s purported invocations were similarly ambiguous. After continuing to engage the detectives in conversation, defendant said, “You guys are not hearing nothing from me, um, so . . . .” Minnig reminded defendant that he was “not denying anything.” Defendant responded, “I did, I did. I told you I don’t know the fuck you guys are talkin’ about. I didn’t murder [Aguayo].” In context, his statement, “You guys are not hearing nothing from me,” appeared to reflect defendant’s frustration that the detectives were not “hearing” that he had denied involvement in Aguayo’s murder. (Cf. Martinez, supra, 47 Cal.4th at pp. 949-952 [statement, “ ‘That’s all I can tell you,’ ” was reasonably seen as meaning, “ ‘That’s my story and I’ll stick with it.’ ”].) It was certainly not an unambiguous invocation of the right to remain silent. Later, defendant said, “I wanna go back and sleep just ‘cause . . . I don’t wanna talk to you guys.” Like defendant’s previous statements that expressed a desire to sleep, this too was ambiguous. A reasonable officer could have interpreted this is as a statement of fatigue or frustration, especially given that defendant’s prior ambiguous invocations of “I wanna go to sleep” resulted in defendant reinitiating conversation.

The video of defendant’s interrogation shows that defendant’s demeanor and body position remained the same for the eight to nine minutes prior to when he first indicated he wanted to sleep. His arms remained crossed, and he remained leaning back in his chair, with no apparent change in his body position or demeanor. (Cf. People v. Villasenor (2015) 242 Cal.App.4th 42, 66 [observing that the defendant’s “demeanor changed dramatically when confronted with the evidence against him,” and that his demeanor “became that of a young man who had decided to end the interrogation”] (Villasenor).) He remained in this position throughout every purported invocation of his right to remain silent, until he put his head down. The video also shows that Minnig and Bruno never raised their voices and remained seated for most of the interview, until Bruno got up to leave and Minnig moved to leave.

Defendant asserts, citing Villasenor, that his “post-invocation question about whether he would go to county jail ‘may not be used to cast retrospective doubt on the clarity of the initial request itself.’ ” First, for the reasons already discussed, we disagree that there was anything approaching “clarity” with respect to defendant’s “initial request.” Standing alone and without reference to subsequent statements, defendant’s initial invocation was objectively ambiguous. Thus, we are not using defendant’s later statements to “cast retrospective doubt” on the “clarity of the initial request,” because the initial request was not objectively clear. Second, Villasenor does not support defendant’s position. The full quote from Villasenor, which is taken from Smith v. Illinois (1984) 469 U.S. 91, does not reference post-invocation questions made by a detainee, but rather post-invocation responses to questions posed by officers. (Villasenor, supra, 242 Cal.App.4th at p. 65 [“ ‘[A]n accused’s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.’ ”].) Here, defendant continued to make unsolicited comments and ask questions in the absence of pending questions, which in combination with his initial ambiguous invocation, further confused the meaning of his statements.

In “the context of a postwaiver invocation,” the inquiry is objective, “identifying as ambiguous or equivocal those responses that ‘a reasonable officer in light of the circumstances would have understood [to signify] only that the suspect might be invoking the right to counsel.’ ” (People v. Williams (2010) 49 Cal.4th 405, 428.) As part of this objective inquiry, a reviewing court may look at a defendant’s conduct “before, during, and after the statements” (Jennings, supra, 46 Cal.3d at pp. 978-979), to determine what “ ‘ “a reasonable officer in light of the circumstances would have understood” ’ ” the statements to mean. (Sanchez, supra, 7 Cal.5th at p. 49.) Here, defendant twice reinitiated conversation, on his own accord, after purported invocations of the right to remain silent. Defendant’s own initiation of further conversation after purported invocations was inconsistent with an invocation of the right to remain silent.

In sum, nothing in defendant’s behavior, demeanor, or statements communicated an unambiguous and unequivocal desire to invoke his right to remain silent. Defendant repeatedly reengaged Minnig and Bruno in conversation, of his own accord, even after he purportedly invoked his right to remain silent. Understood in context, defendant’s statements would not have been understood by a reasonable listener as an attempt to invoke the right to remain silent. Thus, the trial court did not err in denying defendant’s suppression motion.

B. Unlawful Driving or Taking of a Vehicle

Defendant contends that his conviction for driving or taking a vehicle must be reversed for insufficient evidence because the prosecution did not prove the value of the truck exceeded $950. Defendant alternatively contends that the conviction must be reversed for instructional error, because the jury instructions failed to specify that the prosecution must prove the value of the vehicle was greater than $950. The Attorney General concedes that remand is warranted.

1. Background

Aguayo’s truck was a model year 2000 Chevy Silverado. Pictures of the truck’s exterior and interior were introduced into evidence. On December 11, 2015, a farm worker found the truck parked by River Road and reported it to authorities because the truck “was in really good condition.” On December 12, a California Highway Patrol (CHP) officer located the Silverado in a field near the river bed by River Road and Chualar River Road. When the CHP officer found the truck, it was “actually stuck in the mud about a foot down.” The mud was “very close” to the bottom axle of the truck, “if not touching the bottom axle.”

In his videotaped confession, defendant stated that he was “high that day” and “didn’t feel like driving,” so he called Johnson and told him “that [he] just wanted to see if [Johnson] can drive [the] truck for me back to Salinas . . . .” Defendant claimed that he drove the truck to Chualar and took the bus back to Salinas. He did not directly say who drove the truck to Salinas. In another part of the interview, defendant said that Johnson “didn’t come,” so he “drove the truck.” He explained, “I tried callin’ my other friend, too, ‘cause I didn’t know how to drive, I drove the truck.” He said he hoped to hide the truck under the bridge and sell it later for drugs.

At trial, defendant testified that he “took the keys” to Aguayo’s truck and headed back to the truck. He went into the truck and looked for Aguayo’s phone. Because he did not “know how to drive,” he called his friend, Johnson. Johnson came to Marina and saw defendant covered in blood, and asked “What the fuck happened?” Defendant replied, “I just want to get the fuck out of here.” The two headed over to Johnson’s house in Salinas, where defendant changed clothes. While there, they talked “about . . . what to do with the car or with his truck.” Johnson “called a couple of his friends,” who came over. Defendant could not recall their names. They “decided to go drop it off later on in the night in Chualar.” Although defendant did not “know how to drive,” he “did go with them” to Chualar to drop off the truck. When asked by the prosecutor if he had wanted to “destroy evidence,” defendant replied, “I wanted to get rid of the car, yes.”

As to the driving or taking offense, the trial court instructed the jury: “To prove that the defendant is guilty of this crime, the People must prove that one, that [sic] the defendant took or drove someone else’s vehicle without the owner’s consent; and two, when the defendant did so, he intended to deprive the owner of possession or ownership of the vehicle for any period of time.”

During closing arguments, the prosecutor argued that to convict for “unlawful taking of the vehicle,” the prosecution must prove that defendant “took a vehicle without the owner’s consent.” “And when the defendant did so, he intended to deprive the owner of ownership of the vehicle for any period of time. [¶] That’s not his car. That’s Francisco Aguayo’s car or the person that would inherit it from him. He had no right to take it. And when he hid it, his intent was to get rid of it.” The prosecutor observed that the truck was “gone for a day or two, and it got stuck [in the mud].” Thus, according to the prosecutor, the evidence showed defendant “was trying to get rid of that vehicle so that no one would have it,” and that the rightful owner would be “deprived of that vehicle.”

During deliberations, the jury sent a note: “Please define the word ‘took’ in Count 3, Item 1. If a person facilitated the taking of the vehicle, but did not drive it, is that considered taking?” The court discussed the question with the parties and sent the following response: “Words and phrases not specifically defined in these instructions are to be applied using their ordinary everyday meanings. Please refer to this instruction together with all of the instructions already provided as a whole.”

2. Proposition 47

On November 4, 2014, California voters approved Proposition 47, and it became effective the next day on November 5, 2014. (§ 1170.18.) “Proposition 47 [made] certain drug- and theft-related offenses misdemeanors, unless the offenses were committed by certain ineligible defendants. These offenses had previously been designated as either felonies or wobblers (crimes that can be punished as either felonies or misdemeanors).” (People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.) Pursuant to section 490.2, subdivision (a), “Proposition 47 reclassified a variety of grand theft crimes to petty theft offenses when the value of the money, labor, real or personal property taken did not exceed $950.” (People v. Gutierrez (2018) 20 Cal.App.5th 847, 854 (Gutierrez).) “Following passage of Proposition 47, Courts of Appeal disagreed whether [section 490.2] applied to vehicle theft under Vehicle Code section 10851 . . . .” (Ibid.) In 2017, in People v. Page (2017) 3 Cal.5th 1175 (Page), the California Supreme Court resolved the issue, holding that “[b]y its terms, Proposition 47’s new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense.” (Page, at p. 1183, italics added.)

3. Analysis

Vehicle Code section 10851, subdivision (a) “ ‘proscribes a wide range of conduct.’ ” (People v. Garza (2005) 35 Cal.4th 866, 876 (Garza).) “A person can violate section 10851 by ‘[u]nlawfully taking a vehicle with the intent to permanently deprive the owner of possession.’ [Citation.]” (Gutierrez, supra, 20 Cal.App.5th at p. 854.) “Taking a vehicle with the intent to permanently deprive the owner of possession is a form of theft, and a defendant convicted of violating section 10851 with such an intent has suffered a theft conviction.” (Ibid.) “Section 10851 can also be violated ‘when the driving occurs or continues after the theft is complete’ (referred to by the Supreme Court as ‘posttheft driving’) or by ‘ “driving [a vehicle] with the intent only to temporarily deprive its owner of possession (i.e. joyriding).” ’ [Citation.]” (Ibid.) “[P]osttheft driving and joyriding are not forms of theft; and a conviction on one of these bases is not a theft conviction.” (Ibid.)

Defendant makes two claims with respect to the driving or taking conviction. His first claim is that there was insufficient evidence because the prosecution never proved the value of the truck. We disagree. There was more than sufficient evidence that defendant drove or used the vehicle without the owner’s permission and that he intended to at least temporarily deprive the owner of possession of the vehicle. This evidence was sufficient to support a conviction based on a joyriding theory. Since this theory, unlike a theft theory, does not require proof of the vehicle’s value, the real issue in this case is whether the trial court’s instructions were prejudicially erroneous. (Gutierrez, supra, 20 Cal.App.5th at pp. 857-858; People v. Bussey (2018) 24 Cal.App.5th 1056, 1062-1063 (Bussey), review granted Sept. 12, 2018, S250152; People v. Jackson (2018) 26 Cal.App.5th 371, 378, fn. 7 (Jackson).)

We agree with the parties that instructional error occurred. The error in this case was that the jury instructions failed to differentiate between the theft and nontheft theories by which Vehicle Code section 10851 may be violated. The trial court’s instructions “allowed the jury to convict [defendant] of [the theft form of] a felony violation of [Vehicle Code] section 10851” in the absence of proof of the value of the vehicle. (Gutierrez, supra, 20 Cal.App.5th at p. 857.) This was “a legally incorrect theory.” (Ibid.) The instructions also allowed the jury to convict defendant “for a nontheft taking or driving offense—a legally correct [theory].” (Ibid.)

“When a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground.” (People v. Chiu (2014) 59 Cal.4th 155, 167 (Chiu).) “Unlike with other types of instructional error, prejudice is presumed with this type of error.” (Jackson, supra, 26 Cal.App.5th at p. 378.) This presumption is rebutted only if the record permits the conclusion “beyond a reasonable doubt that the jury based its verdict on [a] legally valid theory . . . .” (Chiu, at p. 167.) In some cases, the evidence will leave no reasonable doubt that the jury made the necessary findings under a legally valid theory. Thus, an instruction on a legally invalid theory is harmless “ ‘if it is impossible, upon the evidence, to have found what the verdict did find’ ” without also making the findings necessary under a legally correct theory. (People v. Chun (2009) 45 Cal.4th 1172, 1204.)

On this record, we cannot say beyond a reasonable doubt that the jury based its verdict on a legally valid ground. To be sure, there was strong evidence establishing that defendant engaged in posttheft driving, which was a legally valid ground. Based on defendant’s uncontroverted trial testimony, after taking Aguayo’s truck, defendant and Johnson went to Salinas, where defendant changed his clothes and conferred with Johnson as well as Johnson’s friends about what to do with the truck. They then decided to drive the truck to Chualar to get rid of it. Cell phone data confirmed this timeline, and established that the gap in time between arriving in Salinas and leaving for Chualar was substantial, approximately seven hours.

“[A] defendant who steals a vehicle and then continues to drive it after the theft is complete commits separate and distinct violations of [Vehicle Code] section 10851(a).” (Garza, supra, 35 Cal.4th at p. 880.) “One might also suggest that the taking is complete when the taker reaches a place of temporary safety.” (Ibid.; see also People v. Calistro (2017) 12 Cal.App.5th 387, 402-403 [evidence overwhelmingly supported conclusion that the defendant’s use of the vehicle was distinct from taking, where the defendant had “long since left the locus of the theft, was no longer in the process of escape,” and felt that he could “linger in the stolen car”].) Thus, applied to this case, it is entirely possible that the jury could have found both a posttheft use and a theft, based on the substantial gap in time where, in a place of temporary safety, defendant planned what to do next with the truck. Nevertheless, we cannot say beyond a reasonable doubt that every juror agreed on such a theory, given that the prosecution did not argue such a theory and in light of the jury note that suggested a focus on a taking theory.

Accordingly, we reverse the felony conviction for driving or taking a vehicle and remand the matter to allow the prosecution to accept a reduction of the conviction to a misdemeanor or to retry the offense as a felony. (Bussey, supra, 24 Cal.App.5th at pp. 1062, 1064; Gutierrez, supra, 20 Cal.App.5th at pp. 858, 862; Jackson, supra, 26 Cal.App.5th at p. 381; see also Chiu, supra, 59 Cal.4th at p. 168 [remanding murder conviction based on instructional error and allowing the prosecution to accept a reduction of the conviction or to retry the greater offense].)

C. Section 669

Defendant contends that when the trial court imposed a sentence of 25 years to life for count two, it neglected to state whether the sentence was concurrent or consecutive to the life-without-the-possibility-of-parole sentence for count one. He asserts that the abstract should be corrected to state that the sentence for count two is concurrent to count one. The Attorney General agrees.

Section 669 provides, in pertinent part: “(a) When any person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, . . . the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. . . . [¶] (b) . . . Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently.” (§ 669, subds. (a), (b).) Thus, section 669 imposes an affirmative duty on a sentencing court to determine whether the terms of imprisonment for multiple offenses are to be served concurrently or consecutively. (In re Calhoun (1976) 17 Cal.3d 75, 80-81 (Calhoun).) If the sentencing court fails to make such a designation, then the sentence is, by operation of law, concurrent. (§ 669, subd. (b); Calhoun, at pp. 80-81; People v. Downey (2000) 82 Cal.App.4th 899, 915 (Downey); People v. Caudillo (1980) 101 Cal.App.3d 122, 126-127 (Caudillo).)

In this case, the sentencing court did not indicate whether the term imposed on count two was to be served concurrently or consecutively. The court also did not state on the record any reasons for selecting a consecutive term. Instead, the court stated, “[f]or Count 2, the torture, as a result of the special circumstance of torture by — special circumstance of torture for the 187 that has been stayed, the Court will impose the sentence for torture. It is a life sentence.” The court noted that there were two enhancements for count two—section 12022.53, subdivision (d) [25 years to life], and section 12022.53, subdivision (c) [20 years to life]. The court imposed the greater sentence of 25 years to life and stayed the 20 years to life sentence pursuant to section 654. The probation report did not indicate whether a concurrent or consecutive sentence was recommended for count two. Because the trial court failed to orally pronounce whether the sentence on count two was to be concurrent or consecutive, it is deemed concurrent under section 669 and the abstract of judgment must be modified accordingly. (Downey, supra, 82 Cal.App.4th at p. 915; Caudillo, supra, 101 Cal.App.3d at pp. 126-127.)

D. Custody Credit

Defendant contends that the trial court erred by denying him presentence custody credit of 717 days pursuant to section 2900.5, subdivision (a). The Attorney General concedes this point.

Section 2900.5, subdivision (a), provides in relevant part: “In all felony and misdemeanor convictions, either by plea or by verdict, when the defendant has been in custody, including, but not limited to, any time spent in a jail . . . , all days of custody of the defendant . . . shall be credited upon his or her term of imprisonment.” Section 2933.2 prohibits anyone convicted of murder from receiving work or conduct credit, but does not, by its own terms, preclude a defendant from receiving custody credit.

Defendant was arrested on December 22, 2015, and was sentenced on December 7, 2017. At sentencing, the trial court stated: “The Court will not impose any credits in this matter.” The minutes and abstract reflect that defendant received no custody credit. The probation report calculated that defendant was entitled to 717 days of custody credit and no conduct or work credit.

Defendant was entitled to presentence custody credit. The trial court erred by denying defendant custody credit. “A sentence that fails to award legally mandated custody credit is unauthorized and may be corrected whenever discovered.” (People v. Taylor (2004) 119 Cal.App.4th 628, 646.) We agree with the parties that defendant was in actual custody for a total of 717 days before he was sentenced. The abstract of judgment must be corrected on remand.

III. Disposition

The judgment is reversed. On remand, the trial court shall allow the prosecution to accept a reduction of the conviction for driving or taking to a misdemeanor or to retry the offense as a felony. When the court resentences defendant (either after a reduction or after a retrial), the sentence for count two shall be concurrent to the sentence for count one, and defendant shall be awarded the appropriate amount of presentence custody credit.

_______________________________

Mihara, Acting P. J.

I CONCUR:

_____________________________

Grover, J.

I CONCUR IN THE JUDGMENT ONLY:

_____________________________

Danner, J.

People v. Petty

H045503

Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Matthew P Quirk et al vs Berl Golomb et al
Case No: 17CV00966
Hearing Date: Fri Dec 13, 2019 9:30

Nature of Proceedings: Motion: Leave to File First Amended Cross-Complaint

TENTATIVE RULING: The motion is granted. The Towbes defendants are directed to separately file their First Amended Cross-Complaint forthwith.

Background: This action arose as a result of personal injuries sustained by Trader Joe’s customer Matthew P. Quirk when an elderly driver, defendant Berl Golomb, drove his vehicle through the entrance of the store and struck plaintiff. His complaint, filed March 6, 2017, asserted claims against Golomb, Trader Joe’s Company, Earl M. Hill Family Limited Partnership, and The Towbes Group. Defendant Golomb settled out of the action in late 2017, and the court granted a good faith determination with respect to the settlement.

The remaining parties unsuccessfully attempted to mediate the action in early 2018. A conflict arose after the mediation between the remaining defendants, which caused new attorneys to substitute in for Trader Joe’s, and for the Limited Partnership and Towbes Group (Towbes defendants), who had previously been represented jointly by the same attorneys. Trader Joes filed a motion for leave to file a cross-complaint against the Towbes defendants in June, 2018, based upon its contention that its lease with the Towbes entities entitled it to certain defense and immunity rights. The unopposed motion was granted in July 2018.

Further mediations were conducted in December 2018, January 2019, and June 2019. The mediations were unsuccessful in resolving the claims among the defendants, but the plaintiffs’ claims were resolved at the January 2019 mediation.

The Towbes defendants sought leave to file a cross-complaint for equitable indemnity, implied indemnity, contribution, and declaratory relief against defendant and cross-complainant Trader Joe’s Company, in August 2019. The motion was granted over Trader Joe’s opposition, although only as to the cross-complaint which had been the subject of the moving papers, and not the cross-complaint (which added a cause of action for breach of contract) which was submitted to the Court for the first time attached to a sur-reply which was filed two days prior to the hearing, without providing any justification for or explanation of the eleventh hour switch. The Court advised the Towbes defendants that if they truly believed the late-presented cross-complaint was critical to their litigation, the court would consider allowing leave to file it in a separately-filed motion which met the requirements for doing so in the moving papers.

The Towbes defendants filed the current motion for leave to file the cross-complaint containing the breach of contract cause of action, on November 5, 2019. Based on the policy of resolving disputes on their merits, and to allow amendment at any time to ensure resolution of all disputes at time of trial, the Towbes defendants assert that leave to amend their cross-complaint should be granted. They assert that the FACC is compulsory, because their claims arise from the same occurrence (the accident) and transaction (the lease agreement) as the allegations in the Trader Joe’s cross-complaint against them. The only matter being added to the existing cross-complaint is the cause of action for breach of contract. Trader Joe’s will not be prejudiced by addition of the claim, as it is well aware of Towbes’ position and competing claims, which have been discussed throughout the case and the multiple mediations. After the prior motion had been filed, but before the hearing, Towbes’ counsel was contacted by an attorney retained by Towbes’ insurance carrier to consult on the litigation, and that attorney suggested adding the breach of contract cause of action, as another theory for recovery on the same facts alleged. Litigation counsel agreed with his analysis, and attempted to add it through the filing of the sur-reply.

Trader Joe’s once again opposes the motion, asserting that the cross-complaint is permissive and not compulsory, since it had not accrued when the Towbes defendants answered plaintiffs’ complaint. Even if compulsory, Trader Joe’s asserts that the Towbes defendants’ delay was unjustified and prejudicial. They failed to allege the claim at the time they answered Trader Joe’s cross-complaint, failed to allege the claim when they first moved for leave to file a cross-complaint, and failed to diligently file the current motion after the court’s 8/9/19 order. Trader Joe’s asserts that the Towbes defendants at all times had possession of the lease agreement that underlies the new cause of action. Finally, Trader Joe’s asserts that the filing of the FACC will prejudice it, contending that it will have to adopt a new trial strategy shortly before the 3/20/20 trial date, and will also be prejudiced because it has filed a motion for summary adjudication.

In reply, the Towbes’ defendants dispute Trader Joe’s contention that the cross-complaint is not compulsory. Further, Trader Joe’s has already agreed that it is to its benefit to have the competing contractual claims resolved in this litigation. Further, the motion is not untimely, given that it was filed 5 months before the current trial date, and Trader Joe’s has long known of the Towbes’ defendants’ intent to assert the arguments. Trader Joe’s arguments about prejudice are unpersuasive, given that it has already advised the court that it would be beneficial to resolve all contract claims in this litigation. Given liberality allowed in amending pleadings, the Towbes’ defendants assert that the motion should be granted.

ANALYSIS: The motion is granted. The Towbes defendants are directed to separately file their FACC forthwith.

Whether or not the cross-complaint is compulsory, it makes sense to have it heard with the rest of the disputes among these parties. But for the fact that the pleading that is now the FACC was submitted in August only 2 days prior to the hearing on the motion for leave, and the sur-reply to which it attached provided no explanation as to why it was being presented at that time, or why leave should be granted to file it, the Court would likely have continued the hearing on the original motion to allow Trader Joe’s an opportunity to address the second cross-complaint, and resolved the entire issue at one time. Because no explanation or justification was provided, it appeared to the Court to be a “bait-and-switch” tactic, and the Court could not simply allow its filing without such information. It now has that information, and has determined that the interests of justice and judicial efficiency support the resolution of the breach of contract cause of action in the current litigation.

Trader Joe’s claims of prejudice involve its contention that it will incur substantial fees and costs, but other than a vague claim that it will need to alter its trial strategy, does not articulate any discovery or other specific actions which will be require with the amended cross-complaint, that would not already have been required with the original cross-complaint. While it further objects that it will be prejudiced because it has “already” filed a motion for summary adjudication, the Court notes that the motion for summary adjudication was filed more than three weeks after the motion for leave to file a FACC was filed. The Court does not find the claimed prejudice sufficient to outweigh the liberal policy of amendment of pleadings, or the need to resolve all of the disputes between these parties in this litigation.

If the parties honestly believe that they need additional time to prepare for trial, such that the current March 20, 2020 trial date is unworkable, the Court would be amenable to a brief continuance of that date.

Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Joseph Benaron et al vs John Cardilino et al
Case No: 19CV04835
Hearing Date: Fri Dec 13, 2019 9:30

Nature of Proceedings: Motion: Strike/Anti-SLAPP

TENTATIVE RULING:

For the reasons set forth herein, the special motion of defendant Frances Cardilino is granted to strike counts 3, 4, and 5 of the fifth cause of action (defamation) from the complaint. Claims for fees and costs are to be made by separate motion.

Background:

(1) Allegations of the Complaint

As alleged in the complaint: Plaintiffs Joseph Benaron and Emily Benaron reside at 9 Fellowship Circle, Santa Barbara (the Benaron Property). (Complaint, ¶ 1.) Defendants Cardilino and Frances Cardilino reside at 15 Fellowship Circle (the Cardilino Property). (Complaint, ¶ 2.) The Cardilino Property is located in the center of Fellowship Circle, with neighboring homes surrounding it. (Ibid.) The Cardilino Property faces the Benaron Property. (Ibid.)

In February 2016, plaintiffs began a permitted remodel of their home. (Complaint, ¶ 8.) Within one month, defendants began to harass plaintiffs, continuously expressing their opposition to the remodel and making multiple complaints about the labors and the process of the remodel. (Ibid.) During that remodel, defendants frequently trespassed on the Benaron Property, taking videos, photographs, and measurements as they walked around plaintiffs’ home. (Complaint, ¶ 10.) Upon learning of each trespass, Mr. Benaron immediately contacted defendants to inform them that they did not have permission to be on his property and to stop trespassing. (Ibid.) Defendants disregarded these instructions and continued to trespass. (Ibid.) As a result of defendants’ conduct, plaintiffs installed a temporary fence to prevent further intrusions onto their property. (Complaint, ¶ 11.)

After construction was complete, the Benarons moved into their home on November 28, 2016. (Complaint, ¶ 12.)

On December 2, 2016, defendants began to mount multiple high intensity lights as well as high-powered construction lights in and around their property. (Complaint, ¶ 13.) Over the next few years, defendants continued to install additional high intensity LED lights, which were illegally installed without the necessary permits. (Ibid.) Defendants intentionally positioned the light fixtures to face away from their home and aim directly at the Benaron Property. (Complaint, ¶ 14.) The light fixtures illuminate the entire front portion of the Benaron Property that is so bright that light is still visible through “black-out” curtains. (Ibid.) The extreme glare prevents plaintiffs from going into their front yard at night and from keeping windows open to allow a breeze. From December 2, 2016, defendants have used the light fixtures as a way to harass plaintiffs. (Complaint, ¶ 15.) The light fixtures are sometimes not turned on for weeks and are sometimes turned on almost daily. (Ibid.)

About the time defendants installed the light fixtures, Mr. Cardilino also installed several video cameras, of which at least three are pointed directly at the Benaron Property. (Complaint, ¶ 17.) One video camera is about 15 feet up a palm tree on the outer edge of defendants’ property, providing them with a clear and direct view of plaintiffs. (Ibid.) The video cameras are used to annoy and harass plaintiffs by inappropriately watching plaintiffs. (Complaint, ¶ 18.)

There were numerous incidents between the parties. The incident applicable this motion occurred on April 18, 2019. During the early evening hours of April 18, defendants began to play loud music. (Complaint, ¶ 33.) As the evening continued, the music became louder and louder. (Ibid.) Defendants’ light fixtures were also turned on, brightly shining into plaintiffs’ home. (Ibid.) Plaintiffs and other neighbors called law enforcement. (Ibid.) Two Student Neighborhood Police Coordinators (SNAP Officers) arrived first. (Ibid.) Upon arrival, they heard loud music coming from the defendants’ property. (Ibid.) The SNAP Officers attempted to speak with the Cardilinos about the noise and various complaints. (Ibid.) In an extremely agitated and aggressive state, Mrs. Cardilino yelled at the SNAP Officers to get off her property, calling them liars. (Ibid.) Mrs. Cardilino yelled that her daughter could play her music anytime she felt like. (Ibid.) When the SNAP Officers tried to educate Mrs. Cardilino about the City’s noise ordinances, she became argumentative and refused to listen. (Complaint, ¶ 34.) Mrs. Cardilino yelled to the SNAP Officers that the Plaintiffs are “drug dealers” and that “the police department should spend more time investigating them” rather than telling her she can’t play music in her yard. (Ibid.)

Shortly thereafter, two Santa Barbara Police Officers (Police Officers) arrived at defendants’ property and issued the Cardilinos a citation. (Complaint, ¶ 35.) Plaintiffs spoke with the Police Officers, reminding them of the ongoing harassment and that they did not feel safe as a result. (Ibid.) As they were speaking, Mrs. Cardilino came outside of her house in a fit of rage. (Ibid.) Mrs. Cardilino ripped up the ticket and told the Police Officers that she refused to pay it. (Ibid.) While staring at plaintiffs and the Police Officers, Mrs. Cardilino gave plaintiffs “the finger” and yelled to the Police Officers that plaintiffs are “drug dealers” and that Mrs. Benaron “is running an illegal yoga studio out of her home.” (Ibid.) Mrs. Cardilino then lunged forward to attack plaintiffs, but was stopped by one Police Officer blocking her movement forward. (Ibid.) As they were leaving, the Police Officers encouraged plaintiffs to file restraining orders and to continue calling them with any issues. (Ibid.)

(2) Procedural Background

On September 10, 2019, plaintiffs filed their complaint in this action asserting 10 causes of action: (1) private nuisance; (2) public nuisance; (3) nuisance per se; (4) infliction of emotional distress; (5) defamation; (6) trespass; (7) invasion of privacy by intrusion; (8) violation of Santa Barbara Municipal Code section 22.75.010 et seq.; (9) assault; and, (10) injunction.

On October 28, 2019, the defendants filed their demurrer and ordinary motion to strike. Defendants concurrently filed their cross-complaint.

On November 15, 2019, defendant Frances Cardilino filed this special motion to strike (sometimes referred to as an anti-SLAPP motion). This motion is directed to counts 3, 4, and 5 of the fifth cause of action for defamation. This motion is opposed by plaintiffs.

On December 6, 2019, the court heard the demurrer and motion to strike of defendants. The court sustained the demurrer, with leave to amend, as to the third, fifth (as to counts 1 and 2), seventh, ninth, and tenth causes of action. The court’s ruling on the demurrer and on the motion to strike do not address issues raised in this motion.

Analysis:

“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code Civ. Proc., § 425.16, subd. (b)(1).) (Note: Section 425.16 is sometimes referred to as the “anti-SLAPP” statute.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) “At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.” (Id. at p. 396.)

“A ‘claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.’ [Citation.] To determine whether a claim arises from protected activity, courts must ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’ [Citation.] Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of ‘ “act[s]” ’ protected by the anti-SLAPP statute. [Citations.]” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.)

The claims at issue are counts 3, 4, and 5 of the fifth cause of action. All three counts are causes of action for defamation. In count 3, the publication underlying the claim is the statement by Mrs. Cardilino that plaintiffs are “drug dealers” and that the “police should spend more time investigating them” to plaintiffs in the presence of the SNAP Officers. (Complaint, ¶ 66.) In count 4, the publication underlying the claim is the statement by Mrs. Cardilino that plaintiffs are “drug dealers” to the plaintiffs in the presence of the SNAP Officers and the Police Officers. (Complaint, ¶ 70.) In count 5, the publication underlying the claim is the statement that Mrs. Benaron “is running an illegal yoga studio out of her home” to Mrs. Benaron in the presence of the SNAP Officers and the Police Officers. (Complaint, ¶ 74.)

Defendants argue that these statements are both protected by the anti-SLAPP statute and privileged under the privilege of Civil Code section 47, subdivision (b). As discussed below, the same issues underlie both prongs of the analysis.

(1) “Arising from” Prong

The first prong of the anti-SLAPP analysis is whether the underlying claims arise from protected activity. “As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e).)

“The law is that communications to the police are within SLAPP.” (Comstock v. Aber (2012) 212 Cal.App.4th 931, 941 (Comstock).) The reasoning, as set forth in the cases cited in Comstock, is that a complaint to the police is petitioning activity and that the complaint is “made in connection with an official proceeding authorized by law.” (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439; accord, Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511; Lee v. Fick (2005) 135 Cal.App.4th 89, 97.)

Despite this general rule, plaintiffs argue that the statements made to SNAP Officers were not made in an official proceeding because SNAP Officers are non-sworn civilian employees who cannot investigate or commence an official proceeding. (Note: The court grants plaintiffs’ request for judicial notice of the officially published job description of a SNAP officer.) The court notes that the allegations of the complaint are slightly inconsistent in that paragraphs 66, 70, and 74 allege that the statements were made to plaintiffs in the presence of officers, whereas paragraphs 33 through 35 alleged that the statements were made directly to the officers. Paragraphs 33 through 35 provide a detailed description of the events generally; paragraphs 66, 70, and 74 are charging allegations. But even paragraphs 66, 70, and 74 allege the publications were made in the third person (“they are drug dealers,” “investigate[] them,” “she is running an illegal yoga studio”), which would be appropriate for a conversation about plaintiffs to third persons, rather than in the second person (i.e., “you”), which would be appropriate for a conversation to another person directly. The only reasonable construction of these allegations is that the statements were made to the officers about the plaintiffs and not to plaintiffs merely in the presence of the officers. This construction is consistent with plaintiffs’ supporting declarations. (J. Benaron decl., ¶ 4; E. Benaron decl., ¶ 11.)

The “official proceeding” is the investigation initiated by plaintiffs’ call to the police. Both the SNAP Officers and the Police Officers were responding to and participating in that investigation. While the typical anti-SLAPP action in this context usually involves statements made by the complaining party, there is no analytical difference between making a complaint and responding to an investigation of that complaint. (See ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1009 [“ a ‘ “communication to an official administrative agency … designed to prompt action by that agency” ’ is ‘ “as much a part of the ‘official proceeding’ as a communication made after the proceedings had commenced.” ’ ”].) As discussed further below, it does not matter whether SNAP Officers are sworn law enforcement for the court to conclude that the claims of liability arising from statements made by Mrs. Cardilino are claims arising from protected activity within the meaning of the anti-SLAPP statute. The allegations of the complaint show that all of the publications underlying counts 3, 4, and 5, were publications made within the “official proceeding” of a police investigation. Mrs. Cardilino has therefore made her required showing under the anti-SLAPP statute.

(2) Probability of Success

“If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.’ [Citation, fn.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.]” (Baral v. Schnitt, supra, 1 Cal.5th at pp. 384–385.) “As to the second step, a plaintiff seeking to demonstrate the merit of the claim ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’ [Citations.]” (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.)

For purposes of this motion, the court accepts as true the facts stated in the declarations of plaintiffs that Mrs. Cardilino made the statements alleged, that plaintiffs are not drug dealers, and that Mrs. Benaron did not run a yoga studio illegally out of her house. (J. Benaron decl., ¶¶ 2-8; E. Benaron decl., ¶¶ 2-11.) Defendants argue that even if these facts are true and would otherwise constitute actionable defamation, these claims are barred by the privilege of Civil Code section 47, subdivision (b).

“A privileged publication or broadcast is one made: [¶] … [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure ….” (Civ. Code, § 47, subd. (b).)

In Hagberg v. California Federal Bank (2004) 32 Cal.4th 350 (Hagberg), the California Supreme Court addressed the issue of “whether tort liability may be imposed for statements made when a citizen contacts law enforcement personnel to report suspected criminal activity on the part of another person.” (Id. at p. 355.) The court concluded that “such statements are privileged pursuant to Civil Code section 47, subdivision (b) (section 47(b)), and can be the basis for tort liability only if the plaintiff can establish the elements of the tort of malicious prosecution.” (Ibid., fn. omitted.) In reaching this conclusion, the court discussed the purpose behind the section 47 privilege:

“ ‘An absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing. [Citation.] The privilege is based on “[t]he importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity.” [Citation.]’ [Citation.]” (Hagberg, supra, 32 Cal.4th at p. 362, quoting Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1303.)

“ ‘[A] communication concerning possible wrongdoing, made to an official governmental agency such as a local police department, and which communication is designed to prompt action by that entity, is as much a part of an “official proceeding” as a communication made after an official investigation has commenced. [Citation.] After all, “[t]he policy underlying the privilege is to assure utmost freedom of communication between citizens and public authorities whose responsibility it is to investigate and remedy wrongdoing.” [Citation.] In order for such investigation to be effective, “there must be an open channel of communication by which citizens can call … attention to suspected wrongdoing. That channel would quickly close if its use subjected the user to a risk of liability for libel. A qualified privilege is inadequate under the circumstances…. [¶] The importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity outweighs the occasional harm that might befall a defamed individual. Thus the absolute privilege is essential.” [Citation] And, since the privilege provided by section 47 [(b)] is absolute, it cannot be defeated by a showing of malice.’ [Citation.]” (Hagberg, supra, 32 Cal.4th at pp. 364-365, quoting Williams v. Taylor (1982) 129 Cal.App.3d 745, 753-754.)

The “official proceeding” here was initiated by plaintiffs requesting that law enforcement investigate the defendants. Both the SNAP Officers and the Police Officers appeared in response to that request and were therefore participants in that official proceeding. Regardless of the SNAP Officers’ official duties, statements made to the SNAP Officers responding to plaintiffs’ request to investigate would be made with the expectation that such statements were made to law enforcement. No case states or suggests that being sworn as a peace officer is necessary to invoke the section 47 privilege. Indeed, it may be reasonably inferred from the fact that the section 47 privilege applies to complaints made to a whole host of persons who are not sworn in governmental agencies under the same “official proceeding” element of the section 47 privilege (see, e.g., Braun v. Bureau of State Audits (1998) 67 Cal.App.4th 1382, 1388 [State auditors]) that sworn status is not necessary to invoke the privilege.

Because the statements made by Mrs. Cardilino were made in an official proceeding, that is, in the investigation, those statements are within the scope of the absolute privilege. This is consistent with the policy behind this privilege explained in Hagberg. A person who is being investigated, as much as the person initiating the investigation, needs the ability to communicate with law enforcement without fear that candid statements could give rise to subsequent litigation. Effective law enforcement requires that all persons providing statements in an investigation—complainants, witnesses, and all others—not be under a cloud that a mistake in phrasing could involve them in defamation litigation. The absolute privilege is in place as a legislative policy choice to protect all such communications—even those communications that are on their face defamatory.

The statements made by Mrs. Cardilino upon which counts 3, 4, and 5 are based are all within the absolute privilege of section 47. It is therefore not possible for plaintiffs to prevail on those counts as a matter of law. Plaintiffs have not met their burden to show a probability of success on these claims. Accordingly, the special motion to strike will be granted to strike these counts from the complaint.

In ruling on the prior demurrer and ordinary motion to strike, the court granted leave to amend. Leave to amend does not extend to amending or otherwise repleading the counts that are stricken by this motion. (See Mobile Medical Services, etc. v. Rajaram (2015) 241 Cal.App.4th 164, 171.)

Fees and costs are to be addressed by separate motion.

Tentative Ruling

Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION
Tiffany Rochel vs Sharon Rahimi et al
Case No: 19CV05858
Hearing Date: Fri Dec 13, 2019 9:30

Nature of Proceedings: Demurrer

Tentative Ruling: The court overrules defendant Sharon Rahimi’s demurrer to plaintiff Tiffany Rochel’s complaint. Defendant Sharon Rahimi shall file an answer to the complaint on or before December 23, 2019.

Background: This is an unlawful detainer action that plaintiff Tiffany Rochel commenced on November 1, 2019, against defendants Sharon Rahimi, Lily Rahimi Rochel, and Monir Rochel. Plaintiff alleges:

On August 1, 2019, Michel Rochel and defendants orally agreed to rent premises at 780 Ladera Lane in Santa Barbara. The tenancy was at-will. Michel Rochel died on August 17, 2019. On October 1, 2019, plaintiff served a 30-day notice to quit by personally handing a copy to defendants. Defendants remain on the premises.

Defendants Lilly Rahimi Rochel and Monir Rochel filed an answer to the complaint on November 8. The court vacated that answer on December 6 after their applications for fee waivers were denied and the court entered their defaults.

Demurrer: Defendant Sharon Rahimi demurs to the complaint on the ground that plaintiff fails to state facts sufficient to constitute the cause of action. Plaintiff opposes the demurrer.

In the demurrer, Rahimi states: “Defendant leases a residential property through (sic). A written lease agreement was signed. The defendant has a current valid lease and Plaintiff is seeking to overlook the valid lease which the defendant has in its possession.” Rahimi also states: “the three-day notice served on Defendant is defective as it does not contain the information required by Code of Civil Procedure §1161(2), and further that the three-day notice overstates the amount due, and does not contain the contact information of the lessor, thus it is fatally defective and will not support an unlawful detainer action.”

The court’s only task in ruling on a demurrer is to determine whether the complaint states a cause of action. Moore v. Regents of University of California, 51 Cal.3d 120, 125 (1990). The court treats “the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law”; considers “matters which may be judicially noticed”; and gives “the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” Evans v. City of Berkeley, 38 Cal.4th 1, 6 (2006) [internal quotation marks and citations omitted]. The court also considers the reasonable inferences that may be drawn from the properly pleaded material facts. Reynolds v. Bement, 36 Cal.4th 1075, 1083 (2005).

Plaintiff does not allege service of a three-day notice to quit or pay rent. Therefore, CCP § 1161(2) does not apply. The demurrer based on failure to comply with that statute is without merit.

For purposes of demurrer, the court must accept as true the allegation that there was an oral agreement to lease the premises. Rahimi’s contention that there is a written lease is a matter to be addressed at trial.

For the foregoing reasons, the court overrules defendant Sharon Rahimi’s demurrer to plaintiff Tiffany Rochel’s complaint. Defendant Sharon Rahimi shall file an answer to the complaint on or before December 23, 2019.

Filed 12/16/19 P. v. Diaz-Escobar CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANGEL DIAZ-ESCOBAR,

Defendant and Appellant.

A156458

(San Francisco County

Super. Ct. No. SCN222609)

After shooting a gun near a public park, Angel Diaz-Escobar was convicted of violating the prohibition on possession of firearms by felons, under Penal Code Section 29800, subdivision (a)(1). He challenges his conviction on the ground that language in the verdict form improperly directed the jury to find he had a prior felony conviction, in violation of his constitutional rights to a jury trial and due process. He also challenges certain fines and fees assessed against him, asserting that the trial court’s failure to first hold a hearing on his ability to pay violated his constitutional rights. We affirm.

BACKGROUND

On March 30, 2014, near a park in San Francisco, Diaz-Escobar got into a dispute with another man and fired a gun either into the air or in the direction of the other man. When he was arrested shortly thereafter, Diaz-Escobar possessed a .38-caliber revolver. At the time, Diaz-Escobar was on probation for a second degree robbery conviction. (Pen. Code, § 211 et seq.)

Diaz-Escobar was tried for attempted murder (§ 664 and § 187, subd. (a); count 1), assault with a firearm (§ 245, subd. (a)(2); count 2), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 3). The prosecution relied on Diaz-Escobar’s prior conviction not only to show that he was a felon for purposes of the felon in possession charge but also in connection with the other two counts. At trial, the jury received as evidence the underlying documents pertaining to the prior conviction, and Diaz-Escobar admitted that he had a robbery conviction. He also admitted to possessing a gun. He focused on disproving the murder and assault charges, and during closing arguments defense counsel told the jury it would be an “easy decision[] . . . to find [Diaz-Escobar] guilty of being in possession of a firearm. Guilty. We’re not disputing it.”

With respect to the felon in possession charge, the court instructed the jury, “the People must prove that [¶] 1. The defendant possessed a firearm; [¶] 2. The defendant knew that he possessed the firearm; [¶] AND [¶] 3. The defendant had previously been convicted of a felony.” (CALCRIM No. 2510.) The jury “may consider evidence, if any, that the defendant was previously convicted of a crime only for the limited purposes of proving,” inter alia, “whether the defendant suffered a previous conviction for second degree robbery in violation of Penal Code section 211, as alleged” in count 3. (CALCRIM No. 2510.) If the jury found Diaz-Escobar guilty on any count, it was instructed to determine whether the People had proven the allegation that he was previously convicted of a “violation of Penal Code section 211, on October 2, 2013.” (CALCRIM No. 3100.)

During its deliberations, the jury sent a question to the trial court: “ ‘We cannot make sense of the reference to October 2nd conviction versus Exhibit 22A (People’s), which does not . . . reference October 2nd. Please clarify as trying to establish felony charge for third count.’ ” The jury appeared to be confused because the relevant conviction documents for Diaz-Escobar were contained in Exhibit 21, not Exhibit 22A, which referred to a different individual. In addition, Diaz-Rodriguez was convicted of second degree robbery in October but sentenced in December.

After consulting the attorneys, the trial court advised the jury that “Count 3 relates to Mr. Diaz-Escobar only. Please see the exhibits related to Mr. Diaz Escobar.” Over defense counsel’s objection, the trial court also provided the jury with an amended verdict form for count 3 (felon in possession). Concerned that the verdict form did not track the First Amended Information, which referenced a date of December 31, 2013, for the robbery conviction, the court added language to refer to the alleged conviction. The amended verdict form read in relevant part:

We, the jury in the above entitled cause, find the defendant Angel Diaz-Escobar . . . (Guilty or Not Guilty) . . . of the crime of POSSESSION OF A FIREARM BY A FELON in violation of Penal Code Section 29800(a)(1) in that on or about March 30, 2014, . . . the said defendant did willfully and unlawfully possess a .38-Caliber 5 Shot Revolver, . . . the defendant having theretofore been duly and legally convicted of a felony, to wit second degree robbery in violation of Penal Code Section 211 in the City and County of San Francisco on or about December 31, 2013.

The verdict form further instructed that, if the jury finds the defendant guilty of count 3, it should proceed to determine whether “at the time of the commission of the possession of a firearm by a felon, defendant had been previously convicted of second degree robbery in violation of Penal Code Section 211 . . . on or about December 31, 2013.”

Ultimately, the jury deadlocked on the first two counts but returned a verdict of guilty on the felon in possession charge, and found the prosecution proved the allegation of a prior felony conviction. Diaz-Escobar subsequently agreed to plead guilty to a new count for assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), and the court granted the People’s motion to dismiss the first two counts. The court sentenced Diaz-Escobar to six years in state prison. Due to custody credit for time already served and Section 4019 work time credit, his sentence was deemed served, and on January 11, 2019, Diaz-Escobar was released on parole.

In addition, pursuant to Section 1202.4, subdivision (b), the trial court imposed the statutory minimum restitution fine of $300 per conviction, for a total of $600 in restitution fines, plus a ten percent administrative fee. For each conviction, the court also assessed a $40 court operations fee (§ 1465.8) and a $30 court facilities fee (Gov. Code, § 70373), for a total of $140 in court fees. The court also imposed a $300 parole revocation fine (§ 1202.45) that is stayed unless parole is revoked.

DISCUSSION

A.

Diaz-Escobar contends that the language in the verdict form alleging a prior felony conviction for second degree robbery violated his right to a jury trial and improperly lessened the prosecution’s burden of proving each element of the offense. We disagree.

A trial court may not direct a verdict against a criminal defendant, regardless of how overwhelming the evidence of guilt may be. (People v. Gray (2005) 37 Cal.4th 168, 201 (Gray); People v. Figueroa (1986) 41 Cal.3d 714, 724.) The prohibition on directed verdicts extends to “ ‘situations in which the judge’s instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true.’ ” (Figueroa, supra, 41 Cal.3d at p. 724.) This safeguard arises from the Sixth Amendment right to a jury trial as well as the right to due process guaranteed by the Fourteenth Amendment. (Id., at p. 725; see also Hurst v. Florida (2016) 136 S.Ct. 616, 621 (Hurst).) Due process requires “ ‘proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged,’ ” and requires the prosecution to prove every element of the offense by the same standard of proof. (Figueroa, supra, 41 Cal.3d at p. 725; see also Hurst, supra, 136 S.Ct. at p. 621.) We review the issue de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.)

Diaz-Escobar does not dispute that the trial court correctly instructed the jury on the three elements of the felon in possession of a firearm charge: the defendant possessed a firearm; knew that he possessed a firearm; and was previously convicted of a felony. (§ 29800, subd. (a)(1).) (CALCRIM No. 2510.) Instead, he focuses on the allegation in the verdict form that the felony conviction was “second degree robbery in violation of Penal Code Section 211 in the City and County of San Francisco on or about December 31, 2013.” He contends that specifying a second degree robbery conviction erroneously relieved the jury of its duty to find the third element—that he was previously convicted of a felony.

We are unpersuaded. Rather than direct a verdict, the verdict form provided the jury with the option of selecting either “guilty” or “not guilty” on this count. Specifically as to the allegation that Diaz-Escobar was previously convicted of second degree robbery, the form provided the option of selecting either “proved” or “not proved.” The jury was free to return the verdict form indicating that Diaz-Escobar was “not guilty” and that the prosecution had “not proved” his prior conviction. (See Gray, supra, 37 Cal.4th at p. 201 [“the court’s instruction did not direct the jury to return a guilty verdict”; instead jury was given option of verdict forms indicating “guilty” or “not guilty”]). Indeed, the court instructed the jury to decide whether the People “proved the alleged conviction beyond a reasonable doubt” (CALCRIM No. 3100), and we presume the jury understood and followed the court’s instructions. (See People v. Johnson (2015) 61 Cal.4th 734, 770.)

People v. Brown (1988) 46 Cal.3d 432 (Brown) reinforces our conclusion. In that case, one of the required elements of the prosecution’s case was that the victim was a “peace officer.” (Id., at p. 443.) The trial court “instructed the jury on a point of statutory law—a point not open to dispute—that a Garden Grove police officer is a peace officer.” (Id., at pp. 443-444.) Our Supreme Court held that the trial court’s instruction did not improperly remove an element from the jury’s consideration because “[t]he jury was left to make all essential factual determinations, including whether the victim was a Garden Grove police officer.” (Id., at pp. 443-44 & fn. 6; compare People v. Flood (1998) 18 Cal.4th 470, 492 (Flood) [instruction that specific individuals were “peace officers” constituted partial directed verdict].) Similarly, here, while the verdict form correctly classified the alleged second degree robbery conviction as a felony, it left the jury free to determine whether the evidence presented by the prosecution proved that Diaz-Escobar had such a conviction.

Moreover, any error would have been harmless beyond a reasonable doubt. (People v. Hunter (2012) 202 Cal.App.4th 261, 270, 274, 278 [applying harmless error analysis to claim that instructional error constituted directed verdict and impermissibly lightened prosecution’s burden].) The jury had the underlying conviction documents for Diaz-Escobar’s robbery conviction. Diaz-Escobar repeatedly testified that he had a robbery conviction and possessed the gun. He was arrested with a gun on his person. His trial counsel told the jury the defense was “not disputing” the felon in possession charge and that it would be “easy” for the jury to return a guilty verdict on that count. (See Flood, supra, 18 Cal.4th at p. 504 [removing an element from jury’s consideration may be “harmless . . . where the defendant concedes or admits that element”].) The verdict form’s reference to the robbery conviction could not have made a difference.

B.

Diaz-Escobar asserts that the trial court’s imposition of fines and fees without a hearing concerning his ability to pay them violates his due process and equal protection rights, citing People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Without deciding whether his rights were violated by the lack of a hearing, we hold that any potential error was harmless.

Relying on the principle that “a state may not inflict punishment on indigent convicted criminal defendants solely on the basis of their poverty,” Dueñas held that “due process of law requires [a] trial court to . . . ascertain a defendant’s present ability to pay before it imposes” fines and assessments. (Duenas, supra, 30 Cal.App.5th at pp. 1164, 1166.) The facts presented in Dueñas were unusually compelling. Dueñas, an unemployed, homeless woman with cerebral palsy, supported her two children while living on public aid. (Id., at pp. 1160-1161.) Dueñas lost her driver’s license because she could not afford to pay her juvenile citations, then acquired three misdemeanor convictions for driving without a license because the accumulating criminal assessments and fines prevented her from recovering her license. (Id., at p. 1161.) “Key to the [Dueñas] holding was its concern for ‘the cascading consequences of imposing fines and assessments that a defendant cannot pay,’ which ‘[t]he record in this matter [Dueñas] illustrates.’” (People v. Caceres (2019) 39 Cal.App.5th 917, 924, citing Dueñas, supra, 30 Cal.App.5th at p. 1163.)

Because we conclude that any constitutional error based on Dueñas was harmless in this case, we do not address the People’s contention that Diaz-Escobar forfeited this argument. (See, e.g., People v. Castellano (2019) 33 Cal.App.5th 485, 489 [forfeiture rule inapplicable because objection to minimum restitution fine under § 1202.4, subd. (b) would have been futile]); see also People v. Johnson (2019) 35 Cal.App.5th 134, 137-138 (Johnson).) Neither do we decide whether a trial court must always hold a hearing on the defendant’s ability to pay before imposing fines or fees, an issue on which our Supreme Court recently granted review. (See People v. Kopp, review granted November 13, 2019, No. S257844, 2019 Cal.LEXIS 8371.)

We conclude only that, on the facts of this case, any potential constitutional error arising from the trial court’s failure to hold a hearing on Diaz-Escobar’s ability to pay was harmless. (See People v. Aviles (2019) 39 Cal.App.5th 1055, 1075-77 [rejecting Dueñas claim where record showed any error was harmless]; People v. Jones (2019) 36 Cal.App.5th 1028, 1035 [same]; Johnson, supra, 35 Cal.App.5th at pp. 139-40 [same].) Relying on the probation officer’s report, Diaz-Escobar argues that at the time of sentencing, he had only a tenth-grade education and was unemployed. The probation report indicated that his assets, liabilities, and income were all $0. However, according to the same report, Diaz-Escobar had housing available to him at his mother’s residence. He was single with no child support obligations. He reported to the probation officer that he was in good physical and mental health. He had prior work experience at a restaurant and in the mail room of a bank. Diaz-Escobar stated that his step-father owns a custodial business where he could be employed upon his release. Under these circumstances, we reject Diaz-Escobar’s contention that he would be unable to pay the fines and fees assessed by the trial court.

Further, unlike in Dueñas, Diaz-Escobar’s offenses were not crimes closely tied to poverty. He admitted he shot a gun near a public park. He was convicted of being a felon in possession of a firearm and assault with force likely to produce great bodily harm. These offenses are “not [] crime[s] either ‘driven by’ poverty or likely to ‘contribut[e] to’ that poverty such that an offender is trapped in a ‘cycle of repeated violations and escalating debt.’” (Caceres, supra, 39 Cal.App.5th at p. 928, citing Dueñas, supra, at p. 1164 & fn. 1; see also Johnson, supra, 35 Cal.App.5th at p. 139 [noting that the challenged fines “did not saddle [the defendant] with a financial burden anything like the inescapable, government-imposed debt trap Velia Duenas faced”].)

Finally, in Diaz-Escobar’s reply brief on appeal, he raises an argument based on the Excessive Fines Clause of the Eighth Amendment for the first time. He failed to raise any such argument in the trial court. Neither did he raise this argument in his opening brief on appeal. We therefore decline to address it here. (See People v. Clark (2016) 63 Cal.4th 522, 552 [argument forfeited where defendant both failed to raise it in opening brief and in trial court]; see also People v. Baker (2018) 20 Cal.App.5th 711, 720 [Eighth Amendment challenge forfeited when not raised at sentencing]).

In short, Diaz-Escobar has not demonstrated prejudicial error.

DISPOSITION

The judgment is affirmed.

_________________________

BURNS, J.

WE CONCUR:

_________________________

SIMONS, Acting P. J.

_________________________

NEEDHAM, J.

A156458