Filed 12/16/19 P. v. Calderon-Lopez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

RACHEL CALDERON-LOPEZ,

Defendant and Appellant.

A156607

(Lake County

Super. Ct. No. CR928905)

Rachel Calderon-Lopez appeals from a judgment after an order revoking her probation. She seeks a conditional reversal and remand for the trial court to conduct a mental health diversion eligibility hearing under Penal Code section 1001.36, which became effective after she was convicted of various offenses but before her probation was revoked and she was sentenced to prison. We agree that a conditional reversal and remand is appropriate.

BACKGROUND

Between 2008 and 2012, Calderon-Lopez pled guilty or no contest to a series of offenses including writing multiple checks with insufficient funds, burglary, robbery and failure to appear. Following an extensive history of probation violations and reinstatements, in February 2019, the court permanently revoked Calderon-Lopez’s probation and sentenced her to an aggregate prison term of seven years and eight months.

DISCUSSION

The sole question on appeal is whether Calderon-Lopez is entitled to a remand for a mental health diversion eligibility hearing pursuant to section 1001.36. The People assert she is not. They contend section 1001.36 does not apply to a defendant adjudicated guilty before its effective date and, if it does, that remand is inappropriate because Calderon-Lopez would be found ineligible for mental health diversion under the new provision. We disagree on both points.

I. Application of Section 1001.36
II.
Pursuant to section 1001.36, a trial court may grant pretrial diversion to a defendant who meets all of the six requirements specified in subdivision (b)(1) of the statute. (§ 1001.36, subd. (a).) “At any stage of the proceedings, the court may require the defendant to make a prima facie showing that the defendant will meet the minimum requirements of eligibility for diversion and that the defendant and the offense are suitable for diversion” and “[i]f a prima facie showing is not made, the court may summarily deny the request for diversion or grant any other relief as may be deemed appropriate.” (§ 1001.36, subd. (b)(3).)

The maximum period of pretrial diversion is two years. (§1001.36, subd. (c)(3).) If the defendant commits additional crimes or otherwise performs unsatisfactorily in the diversion program, the trial court may reinstate the criminal proceedings. (§ 1001.36, subd. (d).) “If the defendant has performed satisfactorily in diversion, at the end of the period of diversion, the court shall dismiss the defendant’s criminal charges that were the subject of the criminal proceedings at the time of the initial diversion.” (§1001.36, subd. (e).) If the court dismisses the charges upon successful completion of diversion, “the arrest upon which the diversion was based shall be deemed never to have occurred.” (§ 1001.36, subd. (e).)

As previously indicated, section 1001.36 was enacted after Calderon-Lopez entered guilty pleas in five separate cases in Lake County. The question whether the statute applies to cases like hers that are not yet final is currently pending before the California Supreme Court in People v. Frahs (2018) 27 Cal.App.5th 784 (Frahs), review granted December 27, 2018, S252220. Frahs, applying the rule of In re Estrada (1965) 63 Cal.2d 740, as applied in People v. Superior Court (Lara) (2018) 4 Cal.5th 299, held section 1001.36 applies to all cases that were not final as of its effective date because it confers a potential “ ‘ameliorating benefit’ ” that the Legislature intended “to apply as broadly as possible.” (Frahs, supra, at p. 791.)

Since briefing was completed in the present case, the Fifth District Court of Appeal took the opposite position in People v. Craine (2019) 35 Cal.App.5th 744 (Craine), review granted September 11, 2019, S256671. Craine held that “section 1001.36 does not apply retroactively to defendants whose cases have progressed beyond trial, adjudication of guilt, and sentencing.” (Id. at p. 760.) While recognizing that section 1001.36 “confers a potentially ameliorative benefit to a specified class of persons” (id. at p. 754), the Craine court concluded that “the text of section 1001.36 and its legislative history contraindicate a retroactive intent with regard to defendants . . . who have already been found guilty of the crimes for which they were charged.” (Id. at p. 749.) The Sixth District Court of Appeal in People v. Weaver (2019) 36 Cal.App.5th 1103, review granted October 9, 2019, S257049, Division 5 of this court in People v. Hughes (2019) 39 Cal.App.5th 886, review granted November 26, 2019, S258541, and Division 1 of the Fourth District Court of Appeal in People v. Burns (2019) 38 Cal.App.5th 776, review granted Oct. 30, 2019, S257738 reached the same conclusion as Frahs, disagreeing with Craine.

We agree with the reasoning of the Frahs, Weaver, Hughes, and Burns courts and join them in concluding section 1001.36 applies in all cases not yet final. As the issue is already pending in the California Supreme Court, no useful purpose would be served by reiterating the careful analyses set forth in those cases.

III. Remand is Necessary
IV.
The People argue that even if the statute applies here, remand is not necessary because no court would find Calderon-Lopez eligible for diversion. They point to Calderon-Lopez’s long criminal history, dismal probation compliance, drug use, mental health problems, and failures to comply with her psychotropic medication regime to argue that no court would make such a finding. Calderon-Lopez suffers from auditory hallucinations and “is periodically angry and [demonstrates] the potential for explosive hostile actions to others.” In 2016 she was diagnosed with “major depressive disorder probably of the bipolar type, or alternatively schizo-affective disorder.” In 2018 she was diagnosed as actively psychotic and was still responding to auditory hallucinations. Of further concern, in 2016 Calderon-Lopez threatened to assault an officer who responded to her husband’s concerns about her behavior. In 2018 she struck a woman who had slept with her husband with a hammer three or four times, causing a significant amount of bleeding.

The People assert this all demonstrates that Calderon-Lopez cannot show she “will not pose an unreasonable risk of danger to public safety, as defined in Section 1170.18, if treated in the community,” one of the prerequisites for diversion. (§ 1001.36, subd. (b)(1)(F).) We are not so sure. True, her history unquestionably indicates a likelihood of future offenses and some risk of disruptive and even violent behavior. But the People ignore the precise definition of “unreasonable risk of danger to public safety” that the Legislature uses in section 1001.36. Section 1170.18, subdivision (c), defines “unreasonable risk of danger to public safety” as “an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.” Section 667, subdivision (e)(2)(C)(iv), in turn, lists the following offenses: “A ‘sexually violent offense’ as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code”; specified sexual offenses against a child under 14 years of age; any homicide or attempted homicide; solicitation to murder; assault with a machine gun on a peace officer or firefighter; possession of a weapon of mass destruction; and “[a]ny serious or violent felony offense punishable in California by life imprisonment or death.” Section 1001.36’s safety requirement is thus not that the court must be satisfied the defendant will not pose any unreasonable risk of danger to public safety, but specifically that she will not pose an unreasonable risk of committing one of the violent felonies listed in section 667, subdivision (e)(2)(C)(iv). (§ 1001.36, subd. (b)(1)(F).)

The record presents no basis for us to conclude there is an unreasonable risk Calderon-Lopez will commit one of those offenses. To the contrary, just over a year before the sentencing at issue here the court declined to revoke Calderon-Lopez’s probation after her fifth violation in nine years. After it reviewed her history in considerable detail, the court found only a minor likelihood Calderon-Lopez would pose a danger to others and referred her for mental health treatment rather than imposing the recommended prison term. That finding cannot be squared with the People’s current position that Calderon-Lopez could not be found eligible for mental health diversion under section 1001.36, subdivision (b)(1)(F) upon remand. The trial court will have to determine whether all the requirements set forth in section 1001.36, subdivision (b)(1)(A), are satisfied in this case, but, contrary to the People’s position, we cannot say as a matter of law that Calderon-Lopez will not be able to establish eligibility.

DISPOSITION

The judgment is conditionally reversed and the matter is remanded to the trial court with directions to hold a hearing under section 1001.36 to determine whether to grant Calderon-Lopez diversion under that statute. If the court grants and Calderon-Lopez successfully completes diversion, the trial court shall dismiss the charges. (§ 1001.36, subd. (e).) If the trial court does not grant diversion, or if it grants diversion but Calderon-Lopez does not satisfactorily complete diversion (§ 1001.36, subd. (d)), then the court shall reinstate the judgment. (Weaver, supra, 36 Cal.App.5th at p. 1122; Frahs, supra, 27 Cal.App.5th at p. 796.)

_________________________

Siggins, P.J.

WE CONCUR:

_________________________

Fujisaki, J.

_________________________

Goode, J.*

People v. Calderon-Lopez, A156607

Filed 12/16/19 P. v. Martinez 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.

CARLOS MARTINEZ,

Defendant and Appellant.

G057768

(Super. Ct. No. 18WF2034)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Maria D. Hernandez, Judge. Affirmed.

David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

* * *

A jury found defendant Carlos Martinez guilty of second-degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) In a bifurcated court trial, the court found it to be true that defendant was ineligible for probation under section 1203, subdivision (k) because he committed a violent or serious felony while on felony probation in a different case. The court sentenced defendant to a state prison term of two years (the low term). (§ 213, subd. (a)(B)((2).)

Defendant timely filed a notice of appeal and we appointed counsel to represent him. Counsel did not argue against defendant but advised the court he was unable to find an issue to argue on defendant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was given the opportunity to file written argument on his own behalf, but he has not done so.

We have examined the entire record and have not found an arguable issue on appeal. Accordingly, we affirm the judgment.

FACTS

Following our usual standard of review on appeal, we recite the facts “in the light most favorable to the judgment . . . .” (People v. Johnson (1980) 26 Cal.3d 557, 578.)

On September 8, 2018, at about 9:45 p.m., R.M. was sitting on a bus-stop bench in the City of Garden Grove. The buses were not running anymore that evening, so R.M. was using her cell phone, trying to reach a friend or her husband to pick her up. In addition to her cell phone, R.M had a black purse containing cigarettes, some jewelry, and a charger for her cell phone. A white mini van pulled up next to the bus stop and a woman R.M. did not know got out of the van. The woman started walking toward R.M. and then grabbed R.M’s purse. A struggle over the purse ensued and R.M. heard a man in the van yell “hit her, hit her.” While struggling with the woman, R.M. lost her balance and both women fell down. R.M. let go of the purse to catch herself. The woman got up with the purse and started walking rapidly to the van. R.M. followed the woman and grabbed the back of her shirt and ripped it as the woman climbed into the passenger side of the van. R.M. grabbed onto the van as it accelerated, but she fell off and tumbled to the curb.

A passerby motorist saw the white van with a door missing on the driver’s side as it accelerated with a woman (R.M.) being dragged along. The passerby saw R.M. falling to the ground, and tried unsuccessfully to follow the van. Meanwhile, R.M. called 911, and within minutes a patrolling officer saw the vehicle described in the dispatch. The officer pulled the van over. A male was driving the van and a female was in the passenger seat. During the officer’s testimony at trial he identified defendant as the person driving the van when it was stopped. Another officer arrived and searched the van. He found a black leather purse on the floorboard next to the front passenger seat.

The police took R.M. to the location where the van had been stopped. She identified the woman who took her purse and the van which had fled with her purse. She also identified the purse found in the van as her own.

Another police officer transported defendant and the companion woman to the Garden Grove police station. During the trip, a video camera captured the two suspects kissing each other in the back seat of the patrol vehicle.

DISCUSSION

To assist the court in conducting its independent review of the record, appointed counsel identified two potential issues for consideration. (Anders v. California (1967) 386 U.S. 738, 745.) First, did the court abuse its discretion by denying defendant’s two motions to dismiss two sworn jurors who reported that they knew a prosecution witness? Second, did the court abuse its discretion by allowing the jurors to view the video of defendant and his female companion kissing in the back seat of the patrol vehicle?

Regarding the sworn jurors, one of the jurors reported to the court that he recognized a witness standing in the hallway as the nephew of a good friend. The witness turned out to be the passerby motorist who had happened upon the scene. The court appropriately inquired of the juror about his relationship, if any, with the friend’s nephew and determined the relationship was not such that would cause the juror any difficulty in fairly evaluating the evidence. During the testimony of the police officer who searched the van and found R.M.’s purse, another juror reported that he knew the officer’s brother. Again, the court appropriately inquired about the juror’s relationship, if any, with the officer and determined that the relationship was not such that would cause the juror any difficulty in fairly evaluating the evidence. Our independent review of the record confirms the court’s assessment. No abuse of discretion is discerned.

As to the video of the defendant and his female companion kissing in the back seat of the patrol vehicle, the evidence was clearly relevant as tending in reason to show a relationship between the suspects from which it could be inferred that defendant was acting as an aider and abettor in encouraging and facilitating the robbery. There was no abuse of discretion in making this ruling.

Finally, we observe that the evidence was manifestly sufficient to convict defendant of robbery. (§ 211 [“Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear”].) Defendant acted as a direct perpetrator when he applied force to escape with the purse by accelerating the vehicle while R.M. was clinging to the van. (See People v. Estes (1983) 147 Cal.App.3d 23, 27-28.) He also aided and abetted his female companion by acting as a getaway driver and by yelling “hit her, hit her” as his female companion struggled to gain control of the purse. (§ 31 [“All persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed”].)

Our independent review of the entire record has not disclosed any arguable issue on appeal.

DISPOSITION

The judgment is affirmed.

IKOLA, J.

WE CONCUR:

MOORE, ACTING P. J.

ARONSON, J.

Filed 12/17/19 P. v. Green CA1/4

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 FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

NINE GREEN,

Defendant and Appellant.

A155062

(Lake County

Super. Ct. No. CR940230)

In June 2018, a jury convicted Nine Green of three felonies: making criminal threats; stalking; and threatening a public official. Green was also convicted of 35 misdemeanor violations of a restraining order that precluded him from contacting Lake County Deputy District Attorney Richard Hinchcliff. In this appeal, we reject Green’s sufficiency of the evidence challenge to his felony convictions, but we agree that his sentence for threatening a public official must be stayed under Penal Code section 654. Further, we remand this case for the trial court to determine whether Green’s punishment for multiple violations of the restraining order must also be stayed under section 654.

BACKGROUND

I. Facts

Green’s history with Hinchcliff dates back to a 2001 criminal action that Hinchcliff prosecuted against Rogelio Alfaro, who was charged with orchestrating a home invasion robbery at Green’s home. In that case, Alfaro was sentenced to a one-year jail term and his co-defendant received a six-year prison sentence. A few years later, in 2004, Hinchcliff prosecuted another case against Alfaro in which he was charged with sending threatening letters to Green. In that case, Alfaro was sentenced to a maximum term of four years in prison.

Green was dissatisfied with the outcome of the Alfaro cases so Hinchcliff met with Green and his wife and attempted to address Green’s objections. A few years later Green called Hinchcliff to say he was still very unhappy about the Alfaro cases. Hinchcliff explained how the cases were handled and Green seemed to understand, although he remained unhappy. Green called two more times over the next several years. Each time, Hinchcliff attempted to explain the outcome of Alfaro’s cases.

In April 2012, Green began sending voicemail messages to Hinchcliff. Between April 9 and July 6, Green left 11 voicemails blaming Hinchcliff for all that was wrong with his life, screaming “very loudly and violently into the phone.” Green accused Hinchcliff of causing him and his wife immeasurable harm and claimed that Hinchcliff owed him $30,000. He called Hinchcliff evil, a betrayer, and things like “ ‘human garbage.’ ” He called Hinchcliff’s wife a “ ‘slutty, promiscuous whore’ ” and used graphic language to portray her as a sexual deviant. Hinchcliff felt threatened by Green and became concerned for his safety and his wife’s safety. The tone and content of Green’s messages indicated to Hinchcliff that Green was “extremely unstable and irrational and dangerous because he was obviously extremely, extremely angry.”

On July 7, 2012, the day after Green left a final voicemail message for Hinchcliff, Green sent an email to several local public officials inquiring whether Hinchcliff had called to complain about him. In this email, which was forwarded to Hinchcliff, Green claimed that he was not “threatening” Hinchcliff but only annoying him, made crass sexual remarks about Hinchcliff’s wife, and asked what charges he would face were he to spread “chicken shit” in the lobby of a public building.

On July 20, 2012, shortly after 11:00 a.m., Green went to the lobby outside the District Attorney’s office where Hinchcliff worked and yelled profanities, cursing at people who walked by. An investigator employed by the office attempted to address Green’s concerns and, eventually, Green left. But he returned with a bullhorn and cardboard sign. When employees from the building talked to Green, he said he was protesting, used the bullhorn to yell profanities, and demanded to be arrested. Then Green pointed his bullhorn at the District Attorney’s office and yelled about Hinchcliff, claiming he was not doing his job or serving Lake County.

On the afternoon of July 20, 2012, Green began sending emails directly to Hinchcliff, often transmitting copies to local public officials. By September 2015, Green had sent Hinchcliff more than 300 emails. Many of these messages reinforced and exacerbated Hinchcliff’s fear for his safety and the safety of his wife and family.

In a series of messages sent on July 20, 2012, Green challenged Hinchcliff to a physical fight and promised to continue causing disruption until Hinchcliff left his employment. Green also expressed a desire to physically destroy Hinchcliff’s sex organ and described other bizarre assaultive behavior. The email barrage continued the next day, with expressions of hatred and vows to continue the harassment. Hinchcliff was very concerned by Green’s emails because they were “obviously very bizarre and threatening and sick and perverted.” He was so upset that he contacted his boss and county counsel and requested they do something about Green.

On August 22, 2012, the county obtained a workplace violence restraining order against Green on behalf of Hinchcliff. (Civ. Proc. Code § 527.8.) Green was ordered to stay 50 yards away from the District Attorney’s office, to stay 25 feet away from Hinchcliff, and to have no contact with Hinchcliff by mail, email, text message or otherwise. This three-year restraining order was to remain in effect until August 17, 2015. The same day the restraining order was issued, Green sent an email to Hinchcliff’s boss stating, “I don’t think I can honor a [restraining order].”

Indeed, Green continued to send Hinchcliff emails that made Hinchcliff more concerned for his safety. For example, in a February 9, 2013, email, Green stated, “If you haven’t noticed = I have mental issues.” On April 7, 2013, Hinchcliff received three emails from Green, which included demands that Hinchcliff admit his wrongdoing in the newspaper, pay a civil penalty and “resign immediately or suffer in silence.” Over the next several days, Green sent emails accusing Hinchcliff of being a sociopath and an alcoholic, wishing him harm and telling him he needed to be punished. Green also disclosed that he had discovered that Hinchcliff was neighbors with a former Sherriff whom Green also hated. In an email addressed to local officials and copied to Hinchcliff, Green wondered if he was being compared to narco-terrorist Pablo Escobar and mass-murderer Jeffrey Dahmer, and denied having “a problem.” Then he accused these officials of being “abusive” for too long and demanded that “it MUST END.” A few days later, Green wrote to Hinchcliff and others that he had more right and justification than anyone to carry a concealed weapon.

On April 21, 2013, Green sent an email with the subject line “M.A.D. = mutually assured destruction,” which stated, “Either ‘press the button’ or I WILL!” and then asked to be arrested and “br[ought] up on charges [so] everyone KNOWS.” In late June, Green sent email messages to Hinchcliff in which he: warned that if Hinchcliff did not apologize and admit his betrayal, Green would have to do “WHAT I GOTTA DO”; warned that it was time to “[g]et closure on old issues,” and the “ [t]rain is about to arrive”; and began using the first and last name of Hinchcliff’s wife in his rants. In a July 5 email, Green stated, “there is NO reason I should be prohibited from possessing a firearm,” an apparent reference to one consequence of the restraining order.

On July 8, 2013, Green went into the lobby of the District Attorney’s office and used a bullhorn to scream obscenities about Hinchcliff and to order him to come out and face Green. The police were called and Green was arrested for violating the 2012 restraining order. However, Green was not prosecuted for the violation because, although he was present in court when the restraining order was granted, he had not been properly served with the written order.

On February 21, 2014, Green was served with the 2012 restraining order. Nevertheless, he continued to send emails to Hinchcliff, blaming him for causing his mental illness and demanding large sums to pay for his counseling.

On April 29, 2014, Green returned to the District Attorney’s office and began throwing dirt onto the front walkway. When an investigator from the office asked what Green was doing, he responded that he was protesting. The police were called and, after confirming the restraining order was in effect, an officer placed Green under arrest. In subsequent emails to Hinchcliff, Green stated that the substance he had thrown in front of the District Attorney’s office was chicken manure.

In a December 2014 email, Green told Hinchcliff to buy rain gear because “the shit is going to fly.” He reveled in the notion that he had humiliated Hinchcliff and stated that “now others will be poo b[o]m[be]d, so they have reason to hate you for making this mess.” Green also stated, “I’m short $300+K for relocation to Florida.”

On February 9, 2015, Green went to the entrance of the District Attorney’s office, where he emptied sacks of a substance, poured liquid from a jug and used his rubber boots to spread the muck around. Then he went to the office parking lot and placed his soiled boots on the hood of Hinchcliff’s truck. Before police arrived, Green told a county investigator that the substances he used were human feces and urine. After Green was arrested for violating the restraining order and dumping hazardous materials, the office building had to be closed temporarily while the area was sanitized.

Following his February 2015 arrest, Green continued his email campaign against Hinchcliff. In April, Green wrote that “[t]hings are going to ratchet up, not cool down.” In May, he began encouraging Hinchcliff to kill himself, suggesting various methods and urging Hinchcliff to follow the lead of a local defense attorney named Carter who had committed suicide. In a May 6 email, Green encouraged Hinchcliff to “do what Carter did, take the honorable ‘way out’!,” and then discussed his plans. He told Hinchcliff he looked forward to facing him in a trial, that things would only “get worse, more dumping crap,” and that he would post photos on the internet and continue sending emails. Green continued, “The County should consider ‘restoring my mental health’ and relocating me to Ft. Lauderdale. The ‘meter’ just went to 400K = an investment worth considering . . . considering that you know I’ll ‘stir up some shit’!” Later in May, Green warned that he was developing new tactics and that it was in his best interest to do as much damage as he could in exchange for spending 72 hours in jail. In a June email, Green expressed the sentiment that so long as the Attorney General elected not to prosecute Green, Green would continue to persecute Hinchcliff.

On August 4, 2015, the 2012 restraining order was renewed for three more years. In apparent response, Green mocked Hinchcliff for the Attorney General’s decision not to prosecute Green for violating the restraining order, asking “How many times do you need to be shit on?????” In an August 21 email, Green disclosed that he was preparing a “concentrated string of high profile/high intensity WMD’s that are going to KNOCK THE SOCKS OFF OF THIS COUNTY,” and likened his plan to “the Hiroshima/Nagasaki events.” Later that day another email stated that Green was having fun but things were going to get serious. Expressing hatred for corrupt police and prosecutors, Green stated: “Weapons of Mass Disgust! Shit is the ultimate weapon!” On August 25, he wrote, “I can hurt you a lot more than you could ever hurt me,” and “This is great FUN for me. Must terrorize you.”

Between September 1, 2015 and September 10, 2015, Green emailed Hinchcliff every day, often more than once and often sending copies to other public officials. On September 2, for example, Green wrote: “It wont be long, first fracture, then crack, & then break. Your associates, your friends, then your family. Your health, your mind. Click-bang! Game over. You are NOT hurting me! Just making a big FOOL of yourself!” In another September 2 email, Green wrote, “I hate this chicken shit County & soon I’ll be leaving, after the shit hits the fan! I am a lot more dangerous than you ever imagined. It won’t be the Coroner investigating my death, it will be the FBI/DOJ.”

On the afternoon of September 9, 2015, over the course of 67 minutes, Green sent five emails to Hinchcliff and other public officials disclosing his latest plan. First, he complained about attempts to silence him with the restraining order, claiming that Hinchcliff provoked the problems and he should have to “LIVE WITH THE CONSEQUENCES.” Minutes later, he demanded financial compensation for his mental health problems and warned: “Time is running out. Do you have a plan? Zero hour is approaching, less than 36 hours away!” Green anticipated he would be charged only with felony vandalism for what he planned to do and then warned “I intend to do as MUCH damage as possible to the door, the walls & glass . . . .”

Twenty minutes later, Green wrote about rioting and an increase in murder in our nation as a consequence of police abuse of authority, racism, and use of excessive force. Then Green stated: “Remember Lovelle MIXON = 4 Oakland P.D. in a matter of a few hours! 2 + 2 = 4 [¶] Zero hour is fast approaching. Are you ready????? 9-11.” Green continued, “News media has been tipped off & I have 3 camera crews to document. [¶] Shit on me = SHIT ON YOU X 10 [¶] DICK HINCHCLIFF = betrayer of public trust!” When Hinchcliff received this email referring to Lovelle Mixon, who responded to a “simple traffic stop” by killing four police officers, and to the September 11 terrorist attack at the Twin Towers, Hinchcliff believed that Green “was going to start killing people on September 11th, which was two days after this [email] was sent to [him].”

The next email Green sent on September 9 stated: “In your best interest! A man has to do what a MAN HAS TO DO, . . . . Do you doubt me? Do you think I am bluffing? If I have done it before, you DON’T THINK I would do it again? First, I ‘got your attention’ with chicken shit (easy to sweep up), second, I shut the building down for a few hours and let you know things were getting more serious. This time (9-11) you will UNDERSTAND, you can NOT BETRAY NINE GREEN as a VICTIM/WITNESS.” Green followed up 13 minutes later in a message with the subject “Black Friday 9-11,” which stated: Zero hour is near! Dedicated to that weasel betrayer of public trust = DICK H.”

Green sent several more emails on the evening of September 9 and throughout September 10, 2015. He complained about corruption, about being ignored and about being denied vindication. He demanded recompense for his mental health problems and warned about his impending plan to commit felony vandalism by giving “a big honey bucket party” that would “do as much damage as possible = walls, doors & glass.”

On September 11, 2015, at approximately 9:00 a.m., Green was stopped by police while driving away from his house and placed under arrest pursuant to a warrant. About an hour later, officers executed a search warrant at Green’s home. In a safe, officers found a fanny pack containing a loaded handgun and ammunition, as well as an August 2015 newspaper article in a plastic bag, which showed a photograph of a boy with the last name Hinchcliff and discussed the fact that he had earned an Eagle Scout ring. Computers seized from Green’s home were examined by investigators who determined they were used to send hundreds of emails to Hinchcliff and to search for information about Hinchcliff, Lovelle Mixon, and others.

II. Proceedings in the Trial Court

In January 2017, the People filed an amended information, which charged Green with committing multiple offenses against Hinchcliff.

Count I charged Green with making criminal threats, a felony violation of section 422. Section 422 provides: “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.” Green was charged with violating this law by making criminal threats against Hinchcliff on September 9, 2015.

Count II charged Green with stalking, a felony violation of section 646.9, subdivision (a) (section 646.9(a)). Section 646.9(a) 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.” The People alleged Green committed this offense during the period between April 9, 2012 and September 9, 2015 by willfully and maliciously harassing Hinchcliff and by making a credible threat of harm against him.

Count III charged Green with a felony violation of section 76, subdivision (a) (section 76(a)), which states: “Every person who knowingly and willingly threatens the life of, or threatens serious bodily harm to, any elected public official, . . . , or the staff, immediate family, or immediate family of the staff of any elected public official, . . . , with the specific intent that the statement is to be taken as a threat, and the apparent ability to carry out that threat by any means, is guilty of a public offense.” This charge was based on allegations that on September 9, 2015, Green threatened to kill or cause serious bodily injury to Hinchcliff who was staff of an elected public official.

Counts IV through XXXVIII charged Green with violating section 273.6, subdivision (a) (section 273.6(a)), which provides that “[a]ny intentional and knowing violation of . . . an order issued pursuant to Section . . . 527.8 . . . of the Code of Civil Procedure . . . is a misdemeanor.” These charges were supported by allegations that Green knowingly violated the workplace violence restraining order protecting Hinchcliff. Each count was based on a specific email Green sent to Hinchcliff between February 9, 2015 and August 16, 2015.

Green represented himself during his jury trial, which was held over several days in June 2018. The prosecution presented testimony from Hinchcliff and others. Green also called several witnesses but did not testify himself. Green’s defense as explained during closing argument was that there is a difference between “[a]nger and danger,” and although he was very angry because he felt betrayed, he was never a danger to Hinchcliff or his family. Green argued that Hinchcliff was not a victim but an abuser and that he and Hinchcliff had been engaged in an ongoing feud. Green further argued that Hinchcliff had tried to deprive him of his constitutional rights because he did not want Green “out there protesting and criticizing him.” Green denied that any of his emails constituted threats and argued his conduct was constitutionally protected because he had the right to seek redress from the government. The jury found Green guilty of all charges.

On July 20, 2018, Green was represented by appointed counsel when he appeared for sentencing. After finding Green was not eligible for probation, the court imposed an aggravated 3-year term for the criminal threats felony and a consecutive mid-term sentence of 8 months for the stalking felony. Finding that the conviction for threating a public official was based on the same conduct as the criminal threats conviction, the court imposed a concurrent 3-year term for that offense. Finally, the court imposed concurrent one-year jail terms for each of the misdemeanor restraining order violations.

DISCUSSION

I. Evidence Issues

Green contends the trial evidence does not support his felony convictions for stalking and making criminal threats because he “never threatened to kill or seriously injure Hinchcliff or any member of his family.”

A. Standard of Review

The parties disagree about the applicable standard of review. The People invoke the rule that “[c]laims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard.” (In re George T. (2004) 33 Cal.4th 620, 630 (George T.).) However, Green points out correctly that when a challenged finding implicates the First Amendment, the reviewing court conducts an independent review of the record as an added safeguard against infringement of the defendant’s constitutional rights. (Id. at p. 632.)

“Independent review, which ‘assigns to judges a constitutional responsibility that cannot be delegated to the trier of fact, whether the factfinding function be performed in the particular case by a jury or by a trial judge’ [citation] ‘is a rule of federal constitutional law [citation]. It is necessary ‘because the reaches of the First Amendment are ultimately defined by facts it is held to embrace’ and an appellate court must decide ‘whether a given course of conduct falls on the near or far side of the line of constitutional protection.’ ” (George T., supra, 33 Cal.4th at pp. 631–632; see Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499–503.)

The People contend that George T., supra, 33 Cal.4th at p. 632, requires independent review only “when a defendant raises a plausible First Amendment defense,” and Green’s First Amendment defense was not plausible because his statements and conduct amounted to “true” threats, unworthy of First Amendment protection. This flawed logic conflates the proper standard of review with the merits of the claim under review. To be sure, the First Amendment does not protect a true threat, “where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily injury.” (Virginia v. Black (2003) 538 U.S. 343, 360.) However, as George T. explains, a reviewing court employs independent review “precisely to make certain that what the government characterizes as speech falling within an unprotected class actually does so.” (George T., at p. 633.)

Importantly, though, independent review is different from de novo review, in that we do not make an entirely “ ‘original appraisal’ ” of the evidence. (George T., supra, 33 Cal.4th at p. 634.) We defer to the credibility determinations of the trier of fact, who was “in a superior position to observe the demeanor of witnesses.” (Ibid.) And we apply independent review only to factual findings that implicate the First Amendment, such as a finding that the communication at issue was a true threat and therefore unprotected by the First Amendment. (Ibid.) Other findings that do not pertain to the nature of the speech at issue, such as the intent element of the particular crime, are reviewed only for substantial evidence. (See e.g. People v. Lopez (2015) 240 Cal.App.4th 436, 447 (Lopez).)

In sum, we generally review for sufficiency of the evidence under the substantial evidence standard, but we independently determine whether Green’s expressive conduct was protected by the First Amendment or was a true threat. In conducting this analysis we turn first to Green’s conviction for stalking Hinchcliff over a period of more than three years leading up to his arrest in September 2015.

B. The Evidence Supports Green’s Conviction for Stalking

As noted, the statutory definition of stalking includes willful and malicious harassment of another person accompanied by a “credible threat” intended to “place that person in reasonable fear for his or her safety.” (§ 646.9(a).)

Green concedes that it would be “disingenuous” to dispute that his conduct toward Hinchcliff constituted harassment, which in this context means “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.” (§ 646.9, subd. (e).) What Green disputes is that he made a credible threat, which is defined by statute as a verbal or written threat or “a threat implied by a pattern of conduct” that is “made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety . . . and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety.” (§ 646.9, subd. (g).) Exercising our obligation of independent review, we find that Green’s statements posed a “credible threat” as defined by the statute and therefore also a “true threat” that is unprotected by the First Amendment. (Virginia v. Black, supra, 538 U.S. at p. 359–360.)

Credible threats within the meaning of section 646.9 are not limited to overt threats of violence. (Lopez, supra, 240 Cal.App.4th at pp. 449 & 453.) Instead, the credible threat requirement may be implied from a “ ‘pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct’ ” when such conduct by the defendant was undertaken “ ‘with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family.’ Such threats ‘pose a danger to society and thus are unprotected by the First Amendment.’ ” (Id. at p. 453.)

In Lopez, for example, the defendant was convicted of stalking based on evidence that he indulged his desire for a romantic relationship with the victim by engaging in a multi-year campaign of letters, emails, packages, and in-person visits despite being told to stop by the victim and by the police. (Lopez, supra, 240 Cal.App.4th at pp. 438 & 445.) The conviction was affirmed on appeal because the evidence established a course of conduct by the defendant, which “reveal[ed] an obsession that a reasonable person would understand as threatening” notwithstanding that the defendant did not overtly threaten to inflict violence on his victim. (Id. at p. 452–453.) Moreover, the defendant’s “persistence in the face of [the victim]’s efforts to avoid him and make him understand the degree of fear he was causing her, including going to the police to stop him, amply support[ed] the inference that he intended the result he caused.” (Id. at p. 454.)

In the present case too, there is strong evidence of a course of conduct that a reasonable person would understand as threatening. During his three-year campaign, Green (1) verbally abused Hinchcliff in voicemail messages; (2) sent Hinchcliff hundreds of hostile, profanity-laden emails, some expressing a desire that Hinchcliff suffer or die; (3) went to Hinchcliff’s workplace to yell profanity and commit vandalism; (4) repeatedly violated a workplace restraining order; and then (5) sent a series of emails on September 9, 2015, threatening to commit a felony involving great destruction on “9-11.” This harassment campaign constituted a credible threat within the meaning of the stalking law notwithstanding that Green did not overtly threaten to inflict a violent injury on Hinchcliff or a member of his family.

Green concedes that early in the three-year period, he vented “his frustration through some relatively violent images,” but he characterizes these email statements as “ridiculous” and as “ ‘political hyperbole,’ ” rather than credible threats to Hinchcliff’s safety. However, the fact that some imagery was fantastic does not mean that Green’s threat lacked credibility. Green’s violent images, crass language and offensive accusations are all evidence of rage, and many of the most troubling emails came just days before Green’s arrest: “Click-bang! Game over.” “I am a lot more dangerous than you ever imagined.” “Remember Lovelle MIXON . . . Zero hour is fast approaching.” “This time (9-11) you will UNDERSTAND, you can NOT BETRAY NINE GREEN . . .” Although other emails threatened nothing more than felony vandalism, these messages support the inference that Green’s course of conduct was intended to and did cause Hinchcliff to experience a reasonable fear for his safety.

Green contends that his conduct toward Hinchcliff cannot be construed as a credible threat because he never physically approached Hinchcliff during his three-year harassment campaign. First, direct physical contact is not an element of this crime. Second, Green did go to Hinchcliff’s place of work more than once, and he threatened to do so again on September 11, 2015. He also made statements indicating that he carried a concealed weapon and that he knew personal details about Hinchcliff and his family, including where they lived. These and other circumstances detailed above further demonstrate that the threat to Hinchcliff’s safety was credible.

C. The Evidence Supports the Threat Convictions

Green’s other two felony convictions also required evidence that he made threats unprotected by the First Amendment. To prove the count I charge that Green violated section 422, the People had to establish the following elements: (1) Green willfully threatened to commit a crime that would result in death or great bodily injury; (2) the threat was made with the specific intent it be taken as a threat, whether or not there was an intent to carry it out; (3) on its face or under the circumstances, the threat was so unequivocal, unconditional, immediate and specific as to convey to Hinchcliff a gravity of purpose and an immediate prospect of execution of the threat; (4) the threat caused Hinchcliff to experience sustained fear for his safety or the safety of his immediate family; and (5) the fear Hinchcliff experienced was reasonable under the circumstances. (People v. Toledo (2001) 26 Cal.4th 221, 227–228; see CALCRIM No. 1300.)

Section 76(a), the subject of the count III charge, is similar to section 422, with the added requirement that the threatened individual must be a public official or staff of a public official. “Thus, the essence of a violation of section 76 is the making of a statement with the intent that it be taken as a threat, along with the apparent ability to carry out the threat, resulting in actual reasonable fear on the part of the victim.” (People v. Barrios (2008) 163 Cal.App.4th 270, 277 (Barrios).) An intent to carry out the threat is not required. “It is the fear that is instilled that is paramount.” (Ibid.)

Green contends he did not violate either of these laws on September 9, 2015, because he did not “expressly or impliedly” threaten to kill or seriously injure Hinchcliff or his family on September 11, 2015. According to Green, the only “stated intention” that he expressed in his September 9 e-mails was to commit another act of vandalism comparable to his prior “honey bucket” parties at the District Attorney’s office as part of a campaign to embarrass and humiliate Hinchcliff. We disagree. Viewed as a whole, there is substantial evidence to support the jury’s conclusion that Green’s September 9 emails constituted a criminal threat within the meaning of sections 422 and 76(a). The overt threat was to commit a felony on September 11. Green surmised that he would only be charged with felony vandalism, but his subsequent references to escalating damage, to 9-11, and to a man who achieved fame by murdering four unsuspecting police officers, especially in the context of Green’s emails a week earlier, support the jury’s conclusion that Green threatened to commit a crime that would cause death or serious bodily injury to Hinchcliff.

As a separate issue, the jury also had to find that Green specifically intended that his statements be taken as a threat, whether or not he intended to carry it out. “Specific intent may be, and usually must be, inferred from circumstantial evidence. [Citation.] ‘When a specific intent is an element of the offense it presents a question of fact which must be proved like any other fact in the case. . . . All the circumstances surrounding the act furnish the evidence from which the presence or absence of the specific intent may be inferred by the jury.’ ” (People v. Cole (1985) 165 Cal.App.3d 41, 48.) Here, the content of the September 9 emails in conjunction with the trial evidence documenting Green’s growing frustration and increasingly irrational hatred of Hinchcliff constitute substantial evidence that Green intended his emails to be understood as a threat to commit a crime that would result in Hinchcliff’s death or serious bodily injury. Green himself acknowledged that his communications “[m]ust terrorize” Hinchcliff.

In reaching its verdict, the jury also had to consider Hinchcliff’s state of mind in order to determine whether he experienced a sustained reasonable fear for his safety or the safety of his family. (See Barrios, supra, 163 Cal.App.4th at p. 277 [focus of section 76 is “not merely the intent of the person making the threat, but the effect of the threat on the victim”].) The People presented direct evidence that Hinchcliff experienced sustained fear and, contrary to Green’s position on appeal, the circumstances established by the evidence amply show that this fear was reasonable.

Green complains that the prosecutor misled the jury by focusing only on the threatening language in the September 9 emails and ignoring their “context,” which allegedly shows that Green only intended to commit vandalism. We note that Green himself parses the evidence to support his alternative interpretation of the September 9 emails. The record shows that all of the emails that were discussed at trial were admitted into evidence without redaction. During deliberations, the jury requested and was provided with copies of those emails. On appeal, we too have independently reviewed this evidence. We agree with the jury that Green’s September 9 emails, viewed in the context of his behavior leading up to September 9, constitute a criminal threat unprotected by the First Amendment. Green clearly intended his threats to put Hinchcliff “in fear of bodily harm or death,” such that the First Amendment does not protect this speech. (Virginia v. Black, supra, 538 U.S. at p. 360.)

Our conclusion is reinforced by George T., supra, 33 Cal.4th 620, upon which Green mistakenly relies. The issue before the Supreme Court in that case was whether the minor, a high school student, made a criminal threat within the meaning of section 422 by giving two classmates a copy of his “ ‘Dark Poetry,’ ” in which the protagonist described himself as dangerous and destructive and suggested he could bring a gun to kill students at school. (Id. at p. 625.) The George T. court concluded that while the poem was “perhaps discomforting and unsettling,” it did not constitute an actual threat to kill or inflict harm for two related reasons. (Id. at p. 636.) First, on its face, the poem was ambiguous and equivocal because it did not state that the author actually planned to kill students or identify the two recipients of the poem as targets of any crime. (Id. at pp. 363–637.) Second, although “surrounding circumstances may clarify facial ambiguity,” there were no “incriminating circumstances,” such as a history of animosity or conflict, or any conduct by the minor that would convey to the students who received his poem “an immediate prospect that [the] minor would bring guns to school and shoot students.” (Id. at pp. 637–638.)

The present case is materially different from George T. Viewed in isolation the September 9 emails constituted an explicit threat to punish Hinchcliff by committing a felony that would “do as MUCH damage as possible to the door, the walls & glass.” Although one email anticipated that Green would only be charged with felony vandalism for what he intended to do, twenty minutes later he sent another email talking about murder as a justified response to public corruption, warning Hinchcliff to “Remember Lovelle MIXON” and that “Zero hour is fast approaching,” and asking “Are you ready????? 9-11.” Read together, these September 9 communications are reasonably construed as threatening to commit a serious attack of some sort against Hinchcliff on September 11, 2015.

To the extent the unequivocal threat conveyed by the September 9 emails was ambiguous, in that it was not clear precisely what crime Green planned to commit on September 11, the surrounding circumstances gave Hinchcliff good reason to believe that the threatened crime would cause him physical harm. Green engaged in a 3-year campaign to harass and frighten Hinchcliff to the point that he would quit his job and/or pay Green thousands of dollars. His tactics, which included repeated intentional violations of a restraining order, are evidence of an obsessive hatred that increased rather than diminished with time. As our factual summary reflects, by September 2015, that obsession reached a new level. On September 2, Green warned Hinchcliff he was “a lot more dangerous than you ever imagined” and made the cryptic comment that there would be a “fracture, then crack, & then break,” he referred to Hinchcliff’s associates, friends and family, to Hinchcliff’s heath and mind, and then he stated “Click-bang! Game over.” A week later, in his September 9 messages, Green made explicit references to notorious violent crimes, such as the Mixon murders and “9-11.” By that time Green had also made it clear to Hinchcliff that he carried a concealed weapon and that he knew where Hinchcliff lived. Under the totality of the circumstances established by the trial evidence, we are convinced that Green’s September 9 emails constituted a true threat unprotected by the First Amendment, in contrast to the minor’s dark poetry in George T.

II. Green’s Sentence for Threatening Staff of a Public Official Must Be Stayed

Finally, Green contends his sentence for violating section 76(a) should have been stayed pursuant to section 654, which states that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”

“Section 654 prohibits multiple punishment for a single act or an indivisible course of conduct. [Citations.] Whether a defendant’s conduct constitutes a single act under section 654 depends on the defendant’s intent in violating penal statutes. If the defendant harbors separate though simultaneous objectives in committing the statutory violations, multiple punishment is permissible. [Citation.] This question is one of fact for the trial court, and we uphold the trial court’s finding if it is supported by substantial evidence. (People v. Williams (2009) 170 Cal.App.4th 587, 645.)

In this case, when the trial court announced Green’s sentence, it found that counts I and III were based on the same conduct. That finding is supported by substantial evidence. Accordingly, as the People concede, the trial court erred under section 654 in imposing a concurrent term rather than staying punishment for the section 76(a) violation. (People v. Williams, supra, 170 Cal.App.4th at p. 646; People v. Duff (2010) 50 Cal.4th 787, 796.)

For similar reasons, we question whether punishment for misdemeanor violations of section 273.6(a), based on Green’s 35 violations of the restraining order, must also be stayed pursuant to section 654. The trial court imposed one-year jail terms for each of these misdemeanors to run concurrently with the sentence imposed for the count I conviction. Because each violation of section 273.6(a) was based on an email that Green sent to Hinchcliff between February 9, 2015 and August 16, 2015, it seems likely that at least some of these convictions are based on the same conduct that resulted in another conviction for which Green was punished, whether it be making criminal threats (count I) or stalking (count II). However, when we raised this issue at oral argument, the People did not concede that the concurrent jail terms for the section 273.6(a) convictions should have been stayed. Accordingly, we will remand this case for the trial court to consider whether Green’s sentences for these misdemeanors should be stayed under section 654.

DISPOSITION

Green’s convictions are affirmed. The judgment is modified to stay Green’s sentence for his conviction for violating section 76(a) (count III), and this case is remanded to the trial court with the following directions. First, the trial court shall determine whether Green’s sentences for his section 273.6(a) convictions (counts IV through XXXVIII) should be stayed under section 654. Then the court shall prepare an amended abstract of judgment reflecting Green’s correct sentence and send a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

_________________________

TUCHER, J.

WE CONCUR:

_________________________

POLLAK, P. J.

_________________________

BROWN, J.

People v. Green (A155062)

Filed 12/17/19 P. v. Smith 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.

FRAISURE SMITH,

Defendant and Appellant.

A153254

(Solano County

Super. Ct. No. FCR208822)

Appellant Fraisure Smith was declared a sexually violent predator (SVP) and was granted conditional release from custody under Welfare and Institutions Code section 6608. He appeals from an order revoking his release pursuant to petitions filed under Penal Code sections 1608 and 1609, and contends it must be reversed because (1) expert witnesses were allowed to testify to case-specific hearsay in violation of People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), and to offer the opinions of nontestifying experts in violation of People v. Campos (1995) 32 Cal.App.4th 304 (Campos); (2) a condition of release was modified in violation of Welfare and Institutions Code section 6608.8; (3) the court admitted inadmissible evidence of polygraph results; and (4) there was no substantial evidence appellant would engage in sexually violent criminal behavior if allowed to remain in the community on conditional release. We affirm.

I. BACKGROUND

A. Conviction and SVP Status

Appellant pled no contest to assault with intent to commit rape and admitted prior conviction and prison term allegations. (Pen. Code, §§ 220, 667.5, subd.(b), 1170.12.) He was sentenced to prison. Before his release on parole in 2010, he was declared an SVP under Welfare and Institutions Code section 6600 et seq. and was committed to Coalinga State Hospital.

B. Conditional Release

On December 2, 2013, the superior court granted appellant’s petition for conditional release under Welfare and Institutions Code section 6608. He was released from Coalinga State Hospital on November 15, 2015, and placed in the California Conditional Release Program (CONREP) operated by Liberty Healthcare, a for-profit company that contracts with the California Department of State Hospitals (DSH) to provide supervision and treatment services for SVPs who are conditionally released into the community. CONREP locates housing for its clients, monitors their participation in treatment, and drives them to where they need to go when necessary.

Benjamin Hoffman, a case manager and driver for CONREP, worked with appellant for about a year and a half and presented him with an extensive list of terms and conditions upon his release. Paragraph A.17 provided in part, “I agree to submit all monthly credit statements and account statements for review.” Paragraph B.4(m) stated, “I agree to submit to polygraph examinations upon the demand of my Outpatient Supervisor. I agree to answer polygraph questions regarding my treatment and any events occurring after my release to outpatient treatment. I also agree to answer questions related to my history of sexually deviant behavior.” Paragraph C.16 provided, “I will communicate to CONREP staff my intentions with others regarding sexual and/or romantic relationships. In addition, I will also report to CONREP staff any sexual contact, whether consensual or nonconsensual. This report will include the range of behaviors from hand-holding to intimate sexual contact.” Paragraph C.36 stated, “I will not lie to, omit significant information or deceive my treatment providers or CONREP representatives. If I do, I will immediately report [these] transgressions. In addition, I will log and discuss any impulses to deceive that I may experience.” Appellant appeared to understand the terms and conditions, initialing each and signing the last page of the document on February 16, 2015.

Appellant was a “transient release,” meaning he was not going to have a permanent residence and had to move every five days to comply with the sex offender registration statutes. (Pen. Code, § 290.011.) Hoffman placed appellant in various motels and would typically give him an envelope containing cash to cover the motel fees, a system designed to allow sex offenders to familiarize themselves with handling money. Appellant regularly attended Alcoholics Anonymous (AA) meetings.

C. Physical Contact at AA Meetings

At the beginning of February 2017, appellant was driven to AA meetings by CONREP driver Steve Mervau. At one meeting, Mervau saw appellant walk out of the meeting with a female, holding her hand as they walked down the driveway, which was sloped. They dropped their hands at the end of the driveway. A week later, appellant walked out of the meeting with the same woman, walked her to her car, had a long conversation and then hugged her for eight to ten seconds. Appellant was also seen hugging a woman at a store he frequented on a weekly basis.

Appellant’s community safety team (CST) was composed of his therapist Dr. Christina Bennett, his psychiatrist Dr. Douglas Tucker, polygraph examiner James Adams, CONREP regional coordinator Michael Lim, case manager Hoffman, CONREP’s clinical director Dr. Cecelia Groman and a representative from the DSH. The CST met and discussed concerns it had about appellant hugging females at AA meetings and other places in the community.

Hoffman met with appellant on February 28, 2017 and told him that he was not allowed to initiate physical contact with anyone, should make every effort to avoid physical contact, and was required to report any physical conduct to CONREP staff. According to Hoffman, “We didn’t come out and say, you know what, you cannot absolutely have a handshake or a hug, because we know that in certain public situations it’s unavoidable, people will grab you and hug you. In AA meetings it’s frequent. So we discussed, well, what can you do? We did make it clear that Mr. Smith is not to initiate any hugging, any physical contact with females. So that was made clear. [¶] However, if someone touched him, patted him on the back, hugged him, whatever, he was to immediately report that.”

Yordy Velasquez was hired by CONREP to surveil appellant at an AA meeting on March 3, 2017. He arrived at the meeting before appellant and a woman named “Kim” said he looked familiar and gave him a hug. When appellant arrived, Kim greeted him with open arms and they hugged. Appellant spoke with a female attendant during a break. At the end of the meeting, at which appellant was designated secretary, he shook hands with everyone and thanked them for coming. Appellant did not tell Mervau or Hoffman he had physical contact with anyone at the meeting, despite Hoffman asking him.

D. Keeping Cash Designated for Motel

Hoffman gave appellant $111 in cash for a stay at the Fairfield Inn that began on April 9, 2017. The Fairfield Inn took Marriot Rewards points and appellant arranged to pay using points rather than using cash. He did not tell CONREP and kept the cash; it was not until Hoffman collected the motel receipts from appellant at the end of the month that he knew the motel had been paid for with points. Mervau asked appellant if he had used reward points to pay for the room, and although appellant initially said he had paid in cash, he texted Mervau a few minutes later to say he had been mistaken and forgot he had used reward points. When asked what he had done with the $111, appellant said he must have got the money mixed up with his own and that is why he had more money in his account than he should have.

On May 3, 2017, Mervau met appellant at his credit union to verify that he had put the money into his account. Mervau told appellant he needed receipts and appellant told him as they were waiting in line that Mervau could not accompany him to the window. Although Mervau had specifically asked for a statement covering April 1 through May 3, appellant returned with a statement covering April 21 to May 2. When Mervau clarified what he wanted, appellant said, “This is all they gave me” and seemed frustrated and “you could tell he wanted to leave.” Mervau told appellant to go back and get him the requested statement and appellant came back and said that was all they could give him. He gave Mervau back the $111, but never provided documentation he had deposited that amount in his account.

Also on May 3, 2017, the executive director of CONREP spoke to appellant about the missing money. Appellant said, “I forgot about the money I deposited in my account. I paid it back. Why is there a problem? I made a mistake.” When asked how he would view the situation if he were a staff person, appellant said it looked like the client stole the money, but he denied that he did so.

After the Marriot points incident, it was decided that CONREP would pay the motels directly rather than giving the client cash. Mervau had already given appellant cash to pay for a room starting May 4, but he forgot and paid for the room directly. Appellant never reminded Mervau of that fact or returned the unpaid cash to CONREP.

E. Petitions to Revoke Conditional Release

On May 8, 2017, CONREP filed a petition requesting recommitment under Penal Code section 1608, which alleged that appellant had violated the terms and conditions of his release because he claimed to have deposited funds into his account that were meant to pay for a room and was unable to provide bank statements; he also didn’t inform CONREP of the deposit until weeks later. On May 15, 2017, the district attorney filed a petition to revoke appellant’s conditional release pursuant to Penal Code section 1609, based on an allegation he was a danger to the health and safety of others given his “continual rule violations.” Exhibit A to the petition included a copy of the petition to revoke filed by CONREP based on the room payment, as well as a copy of a notice sent to appellant by CONREP outlining the rule violation of hugging women at AA meetings. A contested hearing was held at which the previously recited facts were adduced. Additionally, members of appellant’s CST testified to his progress and participation in the program.

Dr. Tucker was a psychiatrist who testified that he had met with appellant for a total of 15 hours from April 2016 to April 2017. Appellant was cooperative to the extent he showed up for his appointments, but did not believe he needed treatment or that treatment had anything to offer him. Appellant did not take responsibility for his sex offense and believed he was wrongly accused. He had been diagnosed with Other Specified Paraphilic Disorder, Nonconsent, also known as “rape paraphilia.” Dr. Tucker also diagnosed appellant as having a Mixed Personality Disorder, with Anti-Social, Narcissistic, Histrionic and Borderline Traits. On two separate occasions, he met the criteria for psychopathy under the Psychopathy Checklist Revised.

Dr. Tucker did not believe appellant was ready for conditional release and believed he wasn’t ready when he was released. “And you know, I have done many evaluations with SVP and non SVP sex offenders. He really just struck me as being at square one in terms of just the most basic understanding of what might be going on with him and his behavior and sort of recognition that we got a problem here and agreement that maybe treatment has something to offer.” Dr. Tucker was not surprised that fellow AA members might think highly of appellant: “[H]e’s very engaging. He’s extroverted. So, one of the diagnostic items on the psychopathy is glib and superficial. So, somebody who can read a room and can engage and can effectively connect and manipulate people . . . . And this, everyone in the church, everyone at the school, or the work place thinks he’s a great guy, would be pretty standard for that.” Dr. Tucker believed that one of the problems with appellant’s treatment is he never really did inpatient treatment and never engaged in the outpatient treatment.

Dr. Jay Malhotra was a psychologist contracted by the DSH to conduct forensic examinations of SVPs. He examined appellant in April 2017 to determine whether he was ready for unconditional release. Dr. Malhotra diagnosed appellant with “paraphilic disorder, sex with nonconsenting females” and “personality disorder, NOS, with narcissistic and antisocial aspects,” and he concluded that these disorders had contributed to appellant’s sexual offenses. He assessed appellant using the STATIC 99R actuarial assessment and determined that appellant scored a 6, which placed him at a well

above-average risk of re-offense. He noted that appellant had violated the terms and conditions of his release, including lying to CONREP about physical contact with an AA member, lying about bank account information relative to his payment of rent, and talking to a newspaper reporter despite a gag order. Dr. Malhotra believed appellant was not ready to be released, conditionally or unconditionally, into the community.

Dr. Cecelia Groman was a psychologist and the clinical director of CONREP. Appellant had completed none of the four modules of sex offender treatment offered at Coalinga State Hospital, and had not even signed a consent form for treatment. Dr. Groman believed appellant would be a danger to the health and safety of others if he remained in the community on conditional release, in that it was likely he would engage in sexually violent behavior. Dr. Groman thought that appellant had failed to report a sexual touching when he did not report the hug at the AA meeting.

Dr. Christina Bennett was a licensed Marriage and Family Therapist who was certified to treat sex offenders and contracted with CONREP to provide treatment for appellant. She did not personally diagnose appellant, but agreed with the diagnoses he had been given of personality disorder, paraphilia not otherwise specified and substance abuse in remission. In treatment, he was sometimes engaged and sometimes distant, and was less willing to look at his own behavior after he learned from the trial court that his trial for unconditional release might not happen as quickly as he had hoped. After that, he was more focused on how he was being treated unfairly by CONREP. Dr. Bennett believed appellant took partial responsibility for his prior crimes in that he acknowledged the acts happened, but he indicated he did not have any intention of wrongdoing and most of the things were a misunderstanding. He did not have good insight into his past conduct. Appellant did not believe he needed supervision, but Dr. Bennett believed he did. Dr. Bennett believed appellant was at risk to engage in criminal behavior, though she did not know whether it would be specifically sexual.

James Adams was a polygraph examiner contracted by CONREP and had conducted four polygraph examinations of appellant. Adams concluded appellant was untruthful during two of these tests. Appellant appeared to give dishonest answers about his sexual history and recent sexual conduct.

Alan Stillman, CONREP’s executive director, opined appellant was not safe in the community under supervision. Stillman testified that appellant needed further inpatient treatment and would be likely to engage in sexually violent criminal behavior if released into the community.

Appellant presented the testimony of John Podboy, Ph.D., who had examined appellant in 2013 and 2017 and did not find any indication he was actively mentally ill. Dr. Podboy believed the term rape paraphilia to be without significance, and that rape is simply criminal conduct rather than a sexual disorder or paraphilia. He thought appellant had antisocial personality disorder at one point, but had aged out of his antisocial behavior. Dr. Podboy opined that appellant would not pose a risk if released into CONREP. Appellant also presented the testimony of Richard Sorrinto, Ph.D. and Marguerite Saunders, Ph.D., of the Seeking Safety program at Coalinga State Hospital, where participants talked about trauma they had experienced. Appellant had attended the group since May 2017 (after his return to Coalinga) and he was a focused, enthusiastic participant. Finally, several people who had attended AA meetings with appellant, including Kimberly Cortner, the woman who had hugged him at a meeting, testified to his good character.

F. Ruling

After hearing the evidence, the superior court stated that it had initially thought the basis for the petition—not reporting the hugs at AA meetings and using Marriot points to pay for the motel while initially keeping the cash—was “ticky-tacky.” But it was impressed by the psychiatrists and psychologists saying it was not so much what appellant did, but his failure to report it that was the problem. It found by a preponderance of the evidence that appellant would be a danger if released back on CONREP into the community, and found there were no programs other than CONREP which were available. (See People v. DeGuzman (1995) 33 Cal.App.4th 414, 419 (DeGuzman) [standard for revocation of outpatient status under Penal Code, §§ 1608 and 1609 is preponderance of the evidence].) Appellant was recommitted as an inpatient to Coalinga State Hospital.

II. DISCUSSION

A. Sanchez Error

Appellant contends the court allowed expert witnesses to testify to case-specific hearsay in violation of Sanchez, supra, 63 Cal.4th 655. He notes that the rule in Sanchez has been applied in trials to determine whether a person is an SVP in the first instance. (People v. Yates (2018) 25 Cal.App.5th 474, 483–485; People v. Burroughs (2016) 6 Cal.App.5th 378, 405–406, 407, fn. 7; see also Bennett v. Superior Court (2019) 39 Cal.App.5th 862, 878–882.) We disagree that Sanchez requires reversal.

In Sanchez, the California Supreme Court rejected the “paradigm” that allowed an expert witness to describe the material supporting an opinion, even if that material was case-specific hearsay, on the theory that such material was offered as a basis for the expert’s opinion rather than for its truth. (Sanchez, supra, 63 Cal.4th at p. 679; see People v. Stamps (2016) 3 Cal.App.5th 988, 994–995.) “What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception.” (Sanchez, at p. 686.)

Sanchez involved a criminal trial. The instant appeal is from an order revoking appellant’s outpatient status pursuant to petitions under Penal Code sections 1608 and 1609. Penal Code section 1609 allows a revocation on the prosecutor’s petition “after a hearing in court conducted using the same standards used in conducting probation revocation hearings pursuant to Section 1203.2 . . . .” Hearsay evidence which would presumably be inadmissible if introduced in a criminal trial is sometimes admissible in a probation revocation proceeding upon a showing of “good cause” to excuse the giving of live testimony, or upon a showing that routine documentary hearsay is trustworthy. (People v. Winson (1981) 29 Cal.3d 711, 713–714; People v. Arreola (1994) 7 Cal.4th 1144, 1155–1156; People v. Maki (1985) 39 Cal.3d 707, 709; People v. Shepherd (2007) 151 Cal.App.4th 1193, 1197, 1201–1202; People v. Johnson (2004) 121 Cal.App.4th 1409, 1410–1413 (Johnson).)

This rule of relaxed admissibility was not changed by Sanchez. Thus, the question becomes, would the evidence now challenged under Sanchez have been admissible in a probation revocation proceeding? The Attorney General argues that hearsay relied upon by appellant’s CST would have been admissible under People v. Sword (1994) 29 Cal.App.4th 614, 635, in which the court approved the introduction of handwritten hearsay notes in hospital records at an outpatient status hearing under Penal Code section 1600 et seq. Ultimately, we need not decide whether Sword authorized the challenged hearsay in this case because any error was harmless.

Appellant contends the following testimony by Dr. Malholtra violated Sanchez and was excludable: (1) that he had relied on the results of appellant’s polygraph and “a newspaper article that appeared that had direct quotes from [appellant], and that was in contravention of a court order asking that he not speak to the media” ; (2) that appellant had been accused of sexual offenses five times and had been convicted three times, that two of the victims were minors, and that prior doctors had diagnosed appellant with the same disorder that he (Dr. Malholtra) had diagnosed him as having; (3) that Dr. Bennett had told him appellant’s sexual self-regulation was not robust; (4) and that Dr. Tucker had told him appellant’s prostate surgery did not affect his current testosterone levels and that appellant was difficult, suspicious and emotionally immature.

Appellant also complains that Dr. Groman testified appellant had lied to treatment staff about talking to a reporter. (See fn. 4, ante.) Also challenged is CONREP Director Stillman’s testimony that (1) the CST had told him appellant was not engaged actively in treatment, that his narcissism was getting in the way and that he was becoming defensive and (2) the staff was concerned that appellant had filed complaints against them, as well as testimony by Hoffman, Dr. Groman and Dr. Tucker that appellant had been seen hugging a female at a medical supply store he frequented. Finally, appellant challenges testimony by Dr. Tucker that a Dr. Flinton (or Flavan), who did not testify, had tested appellant and found “a lot of fairly serious cognitive distortions,” and that in 2007 and 2009, other nontestifying experts had categorized appellant as a psychopath.

The erroneous admission of nontestimonial hearsay is a state law error which is assessed for prejudice under People v. Watson (1956) 46 Cal.2d 818 (Watson). (Crawford v. Washington, supra, 541 U.S. at p. 59; Sanchez, supra, 63 at p. 685.) The Watson test asks if it is reasonably probable the defendant would have obtained a more favorable result had the error not occurred. (Watson, supra, at p. 836.) Here, the witnesses were personally involved in appellant’s treatment and their testimony focused mostly on their own experiences and observations. The challenged hearsay constituted a small portion of the experts’ testimony and was largely duplicative of other evidence. The court’s ruling was based primarily on appellant’s lack of forthrightness concerning the hugs at AA meetings and his use of Marriot points to pay for the motel, incidents which were proven by admissible evidence and which are not affected by the alleged inadmissible hearsay. A result more favorable to appellant was not reasonably probable.

We also note that the majority of the hearsay statements were made by witnesses who testified at the hearing and were available for cross-examination (Drs. Tucker, Bennett and Groman, as well as Hoffman and Adams). While this did not render their out-of-court statements nonhearsay, it suggests appellant was not deprived of due process by the admission of the statements as a basis for the expert opinions even if they were hearsay in nature, as he could have questioned them about the statements.

Appellant complains that the hearsay declarants were not asked about their statements to others during their direct examination, and notes that cross-examination is generally limited to matters within the scope of a witness’s examination. (Evid. Code, § 761, 773.) But, “ ‘[c]ross-examination . . . “may be directed to the eliciting of any matter which may tend to overcome or qualify the effect of the testimony given . . . .” ’ ” (People v. Farley (2009) 46 Cal.4th 1053, 1109.) A court has broad discretion to control the scope of cross-examination. (People v. Farnam (2002) 28 Cal.4th 107, 187.) That defendant might have had to recall certain witnesses, or to seek permission from the court to examine them on certain subjects, does not mean he was deprived of due process by the introduction of their hearsay statements. The statements by Dr. Flinton (or Flavan) to Dr. Tucker do not fall in the category of hearsay statements by witnesses who testified, but their content (that appellant had cognitive distortions, that he had been diagnosed as a psychopath) was largely redundant of other testimony.

Appellant also urges us to find error under Campos, in which the court held an expert could rely on reliable hearsay evidence, including reports prepared by other experts, in forming an opinion. (Campos, supra, 32 Cal.App.4th at pp.307–308.) But, an expert “may not, on direct examination, reveal the content of reports prepared or opinions expressed by nontestifying experts.” (Id. at p. 308.) The reason for this rule is lack of the opportunity to cross-examine the other experts as to the basis for their opinions. (Ibid.) Appellant contends the court violated this rule in admitting the evidence recited above.

There is no reasonable probability the statements by the other experts (almost all of whom testified) changed the outcome of this proceeding. (Campos, supra, 32 Cal.App.4th at p. 309.) They consumed only a small portion of the experts’ testimony and were largely duplicative of other evidence. There was no miscarriage of justice. (Ibid.; Cal. Const., art. VI, § 13.)

B. Terms and Conditions of Release

Appellant contends the court violated his rights under Welfare and Institutions Code section 6608.8 by modifying the terms and conditions of his release without advising the court and without giving him notice and an opportunity to object to the change. He argues that the change deprived him of due process by impairing his statutory right to reasonable conditions of release. We disagree that reversal of the order revoking his conditional release is required.

After appellant was released from Coalinga State Hospital, he signed an agreement regarding the terms and conditions of his release on February 16, 2015. Paragraph C.16 provided, “I will communicate to CONREP staff my intention with others regarding sexual and/or romantic relationships. In addition, I will also report to CONREP staff any sexual contact, whether consensual or nonconsensual. This report will include the range of behaviors from hand-holding to intimate sexual contact.” This term and others presupposes that appellant was not absolutely prohibited from having physical contact or a sexual relationship, subject to certain restrictions and disclosures.

On February 28, 2017, after appellant’s CST became concerned about the incidents of hugging and holding hands at AA meetings and at a medical supply store, Hoffman spoke to appellant and conveyed those concerns. He indicated that appellant should not initiate any physical contact and should report any contact that did occur. Appellant argues this effectively changed the terms and conditions of his release in a manner that was not authorized, because it prohibited him from initiating any physical contact whatsoever.

Welfare and Institutions Code section 6608.8 provides in relevant part: “(a) For any person who is proposed for community outpatient treatment under the forensic conditional release program, the department shall provide to the court a copy of the written contract entered into with any public or private person or entity responsible for monitoring and supervising the patient’s outpatient placement and treatment program. [¶] (b) The terms and conditions of conditional release shall be drafted to include reasonable flexibility to achieve the aims of conditional release, and to protect the public and the conditionally released person. [¶] . . . [¶] (d)(1) Except in an emergency, the department or its designee shall not alter the terms and conditions of conditional release without the prior approval of the court. [¶] (2) The department shall provide notice to the person committed under this article and the district attorney or designated county counsel of any proposed change in the terms and conditions of conditional release. [¶] (3) The court on its own motion, or upon the motion of either party to the action, may set a hearing on the proposed change. The hearing shall be held as soon as is practicable. [¶] (4) If a hearing on the proposed change is held, the court shall state its findings on the record. If the court approves a change in the terms and conditions of conditional release without a hearing, the court shall issue a written order. [¶] (5) In the case of an emergency, the department or its designee may deviate from the terms and conditions of the conditional release if necessary to protect public safety or the safety of the person. If a hearing on the emergency is set by the court or requested by either party, the hearing shall be held as soon as practicable. The department, its designee, and the parties shall endeavor to resolve routine matters in a cooperative fashion without the need for a formal hearing.” (Italics added.)

We reject for several reasons appellant’s claim that CONREP violated Penal Code section 6608.8. First, to the extent appellant is challenging the original terms and conditions, he did not object. Second, Hoffman testified appellant’s terms and conditions were never changed—he did not tell appellant in February 2017 that all physical contact was prohibited, as appellant suggests, but rather, that he should refrain from initiating contact and should report any such contact to CONREP. Third, even if the terms and conditions did change materially when Hoffman clarified appellant should not initiate contact, the basis for the revocation of his conditional release was not that he had such contact, but that he failed to report it. Reporting sexual contact has been a requirement since the outset of conditional release. Finally, appellant has not established that the prohibition against initiating physical contact was not in response to an emergency or necessary to protect public safety. Notably, appellant did not request a hearing on this issue with the court as provided for in Welfare and Institutions Code section 6608.8, subdivision (d)(1) and (d)(5).

To the extent that appellant complains a restriction on all physical contact was not the least restrictive means supported by the evidence, we are unpersuaded by his reliance on case law stating that a person committed under the Lantermann-Petris-Short Act has a due process right to the least restrictive condition of treatment available. (Foy v. Greenblott (1983) 141 Cal.App.3d 1, 10, fn. 2.) We note that for purposes of addressing an equal protection challenge to the treatment of SVPs relative to the treatment of persons under other programs of commitment, courts have rejected claims that SVPs are entitled to the least restrictive means of treatment available. (People v. Gray (2014) 229 Cal.App.4th 285, 291.)

C. Polygraph Evidence

Appellant contends the court erred in allowing evidence of the polygraph tests administered to him by James Adams. He argues that such evidence is “without evidentiary effect” and is inadmissible under Evidence Code section 351.1, subdivision (a), which provides, “Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding . . . unless all parties stipulate to the admission of such results.” We conclude that polygraph evidence was not statutorily inadmissible and that assuming the prosecution failed to lay an adequate foundation, any error in admitting the evidence was harmless.

An SVP commitment is not a criminal proceeding, but is a special proceeding of a civil nature. (People v. Yartz (2005) 37 Cal.4th 529, 532.) Evidence Code section 351.1 thus does not bar polygraph results or the opinions of a polygraph examiner in an SVP proceeding. (People v. Fields (2009) 175 Cal.App.4th 1001, 1017 (Fields).) However, in cases not subject to Evidence Code section 351.1 because they are civil in nature, a party seeking the admission of polygraph evidence must show it is generally accepted as reliable in the scientific community. (In re Jordan R. (2012) 205 Cal.App.4th 111, 122, 133–134 [court did not err in excluding polygraph evidence offered by father in child dependency proceeding under Welf. & Inst. Code, § 300 because evidence not reliable]; see People v. Wilkinson (2004) 33 Cal.4th 821, 846–847 [defendant’s failure to make offer of proof that polygraph was accepted as reliable technique by scientific community barred her challenge to Evid. Code, § 351.1 as infringing on constitutional right to present a defense].) Appellant argues polygraph evidence is inherently unreliable and was therefore inadmissible in this case. The Attorney General responds that the evidence shows polygraphs are accepted as reliable in the treatment of SVPs and the evidence was therefore admissible.

Polygraph testing is considered a valuable tool in the context of treating sex offenders. (See People v. Miller (1989) 208 Cal.App.3d 1311, 1314.) This does not, however, render it reliable for evidentiary purposes. (Ibid.) But even assuming Adams’s testimony should have been excluded, reversal is not required because it is not reasonably probable the court would have allowed appellant to continue on conditional release absent the evidence. (Fields, supra, 175 Cal.App.4th at p. 1018.)

After explaining the general procedure for giving polygraph tests, Adams testified that he gave appellant a total of four such tests on June 23, 2016, August 25, 2016, March 23, 2017 and April 28, 2017. During the June 23 test, appellant was asked about his sexual history, because while he had admitted the act of sexual contact with one of the victims of his underlying crimes, he claimed the act was consensual. Appellant’s reactions during this test indicated he was withholding information or not being truthful. For the March 23 test, after it had come to the CST’s attention that appellant was hugging women at AA meetings, appellant was asked, “Since your last polygraph test have you engaged in any unwanted touching of another person? [¶] Since your last polygraph test have you touched another person in a sexual way?” Appellant’s responses indicated he was withholding information or not telling the truth. After he was unhooked from the polygraph machine, appellant denied any unwanted touching and said the test was wrong and explained that he had hugged some women at a birthday party. Appellant passed the August 25 test and the April 28 test, though during the April 28 test he refused to be questioned about his conduct prior to the March 23 test, and indicated he had not touched anyone against their will since that test.

Even if Adams had not testified, the evidence would have shown that appellant suffered from paraphilia and personality disorders that had contributed to his sexual offenses; that he had participated reluctantly in treatment and did not believe he needed treatment; that he had violated the terms of his release by using Marriot points to pay for a motel room and keeping the cash and by failing to disclose he had been hugging women at an AA meeting; and that his providers were concerned not so much because of these violations per se, but because appellant was not honest about them. Adams testified that appellant was withholding or dishonest on two of the four tests he gave him, but one of these tests involved appellant’s past sexual offense rather than his current conduct, and his claim that the offense was in fact a consensual encounter. This left only one “failed” test regarding his nondisclosure of sexual contact. But there was ample evidence appellant had hugged/held hands with women at AA meetings; at issue was whether appellant’s dishonesty about the same was enough to revoke his outpatient status. A more favorable result was not reasonably probable had the polygraph evidence been excluded.

D. Evidence of Dangerousness

In reviewing an order revoking outpatient status under Penal Code section 1608 or 1609, we uphold the trial court’s factual findings if supported by substantial evidence (DeGuzman, supra, 33 Cal.App.4th at p. 420, 39 Cal.Rptr.2d 137) and apply the abuse of discretion standard in reviewing the court’s decision to revoke outpatient status (Sword, supra, 29 Cal.App.4th at p. 619). Appellant argues the order should be reversed in his case as not supported by substantial evidence that there was a danger he would commit a sexually violent offense while under supervision. We disagree. A finding of dangerousness was not required given that petitions were filed under both Penal Code sections 1608 and 1609, and the former does not require a finding of dangerousness. In any event, the court did make a finding of dangerousness, which was supported by substantial evidence.

Persons placed in the conditional release program are subject to Penal Code sections 1605 through 1610 (Welf. & Inst. Code, § 6608.5, subd (c)), which include provisions controlling revocation requests. Revocation of an individual’s outpatient status can be initiated by the director of an outpatient program (Pen. Code, § 1608) or by the prosecution (Pen. Code, § 1609). Penal Code section 1608 provides that the director may file a written request for revocation if the outpatient treatment supervisor believes that the patient “requires extended inpatient treatment or refuses to accept further outpatient treatment and supervision.” Penal Code section 1609 provides that outpatient status may be revoked at the request of the prosecutor, based on the prosecutor’s opinion that the outpatient is a danger to the health and safety of others. Unlike Penal Code section 1609, Penal Code section 1608 does not require a showing of dangerousness. It focuses on the treatment of the outpatient, while Penal Code section 1609 is concerned with the safety of the community. (DeGuzman, supra, 33 Cal.App.4th at pp. 419; McPherson, supra, 176 Cal.App.3d at pp. 339–340.) In this case, both types of petition were filed.

Return of an individual to inpatient treatment under Penal Code section 1608 does not require the People to prove anew that he is mentally ill or dangerous. Appellant’s mental illness and dangerousness remains presumed from his SVP status. The revocation procedure under Penal Code section 1608, therefore, need not determine whether he is mentally ill or dangerous, but whether circumstances have changed such that he is no longer suitable for treatment as an outpatient. “ ‘Outpatient status is not a privilege given [a defendant] to finish out his sentence in a less restrictive setting; rather it is a discretionary form of treatment to be ordered by the committing court only if the medical experts who plan and provide treatment conclude that such treatment would benefit the [patient] and cause no undue hazard to the community.” (Sword, supra, 29 Cal.App.4th at p. 620; see DeGuzman, supra, 33 Cal.App.4th at pp. 419–420 [“Like revocation of probation, revocation of outpatient status under either [Pen. Code § 1608 or 1609] does not deprive a person of absolute liberty but rather deprives him of a conditional liberty to which he is entitled only if he observes special restrictions.”].) While section 1609 addresses the dangerousness of the individual, section 1608 is based on concerns for his welfare and “does not require the court to find that the patient is a danger to the health and safety of others.” (DeGuzman, at p.420.)

The standard of proof required in a proceeding under Penal Code sections 1608 or 1609 is a preponderance of the evidence supporting revocation. (DeGuzman, supra, 33 Cal.App.4th at p. 419.) If the court grants the request to revoke outpatient status, the court must order the defendant to be confined to a treatment facility or a hospital.

(Pen. Code, §§ 1608, 1609.)

Although the court could have based its recommitment order on a finding under Penal Code section 1608 that appellant “require[d] extended inpatient treatment or refuse[d] to accept further outpatient treatment and supervision,” (Pen. Code, § 1608), it found he was dangerous under Penal Code section 1609. This finding was consistent with and supported by the expert opinions of Drs. Tucker, Malholtra, Groman and Bennett, as well as by Stillman, the Executive Director of CONREP. A single psychiatric opinion that an individual is dangerous may be sufficient. (People v. Bowers (2006) 145 Cal.App.4th 870, 879.)

It is true that an expert opinion based on “guess, surmise or conjecture” cannot constitute substantial evidence. (Garza v. Workmen’s Comp. App. Bd. (1970) 3 Cal.3d 312, 318, fn. 3.) But the experts in this case were familiar with appellant and his history and relied upon information gleaned from in-person contact and his records.

Additionally, substantial evidence supported a finding that appellant “require[d] extended inpatient treatment.” (Pen. Code, § 1608.) Although the court did not purport to revoke outpatient status on this basis, such a finding was implicit in its finding of dangerousness and in its conclusion that no outpatient program other than CONREP was available. Substantial evidence supports the order revoking outpatient status.

III. DISPOSITION

The judgment (order revoking conditional release) is affirmed.

NEEDHAM, J.

We concur.

JONES, P.J.

SIMONS, J.

People v. Smith / A153254

Filed 12/17/19 Patel v. Mercedes-Benz USA CA2/4

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 FOUR

NILAY B. PATEL, et al.,

Plaintiffs and Appellants,

v.

MERCEDES-BENZ USA, LLC,

Defendant and Respondent.

B293813

(Los Angeles County
Super. Ct. No. BC580425)

APPEAL from an order of the Superior Court of Los Angeles County, Teresa A. Beaudet, Judge. Reversed and remanded with directions.

Rosner, Barry & Babbitt, Hallen D. Rosner and Arlyn L. Escalante for Plaintiffs and Appellants.

Lehrman Law Group, Kate S. Lehrman and Robert A. Philipson for Defendant and Respondent.

INTRODUCTION

Plaintiff Nilay B. Patel contracted with defendant Mercedes-Benz USA, LLC (MBUSA) to lease a vehicle. During the lease period, the vehicle’s navigation system experienced recurring problems, which MBUSA was unable to repair. Patel sued MBUSA under the Song-Beverly Consumer Warranty Act (the Act, Civ. Code, §§ 1790-1795.8). At trial, the jury found the vehicle had a substantial impairment, and MBUSA failed to repair or replace the vehicle. Accordingly, the jury awarded damages.

This otherwise straightforward case has a twist, however: Patel did not lease the vehicle for his own use. Instead, he leased it for a friend, Arjang Fayaz, who was the primary driver. Patel paid the lease payments to MBUSA, and Fayaz reimbursed Patel. Because Patel was the lessee and the party to the express warranty, Patel alone sued MBUSA. MBUSA deposed Fayaz as a witness. After several days of trial, MBUSA moved for nonsuit on the basis that Patel did not suffer any damages, because Fayaz reimbursed him for the lease payments. The trial court denied MBUSA’s motion for nonsuit, but ordered that Fayaz be added to the case as a plaintiff. When the jury awarded damages, it awarded them solely to Fayaz.

Patel and Fayaz then moved for attorney fees as prevailing parties under the Act. The trial court granted the motion as to Fayaz only, and limited the attorney fee award to fees incurred while Fayaz was a party to the case—from the penultimate day of trial onward. Plaintiffs appealed, asserting that the trial court erred by finding that Patel was not a prevailing party entitled to attorney fees, and by limiting the award to only fees incurred after Fayaz was added as a plaintiff.

We agree with plaintiffs and reverse. The Act provides that successful plaintiffs are entitled to collect attorney fees “based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (§ 1794, subd. (d).) Plaintiffs successfully proved to a jury that the vehicle was defective in breach of MBUSA’s express warranty, MBUSA failed to repair or replace it, and damages resulted from MBUSA’s breach. That the jury awarded fees to Fayaz rather than Patel did not support the trial court’s holding that Patel was not a prevailing party entitled to attorney fees. Therefore, the order on the attorney fee motion is reversed, and the case is remanded for a hearing to determine a reasonable fee award under section 1794, subdivision (d).

FACTUAL AND PROCEDURAL BACKGROUND

A. Allegations
B.
In May 2015, Patel filed a complaint asserting causes of action under the Act and the Magnuson-Moss Consumer Warranty Act (15 U.S.C. § 2301 et. seq.). Patel alleged that on December 24, 2013, he leased a new 2014 Mercedes C250W from MBUSA, and the vehicle came with an express warranty. The vehicle was delivered with “serious defects and nonconformities to warranty” including “electrical and HVAC defects.”

In the cause of action for violation of the Act, Patel alleged that the vehicle’s “nonconformities substantially impair the use, value, and/or safety of the vehicle,” and MBUSA was unable to repair the vehicle. Patel alleged that MBUSA refused to replace the vehicle or make restitution. In the cause of action for violation of the Magnuson-Moss Warranty Act, Patel alleged that MBUSA breached express and implied warranties. Patel sought damages, rescission of the contract, a civil penalty, and attorney fees.

Prior to trial, initially set for July 2016, the parties stipulated to the following facts. Patel leased the vehicle on December 24, 2013, with a 39-month lease term. The vehicle had a “4-year/50,000 mile ‘bumper-to-bumper’ warranty,” and “an implied warranty of merchantability arose upon the sale of the consumer good as a matter of law.” During the first year of the lease, the vehicle was presented for repairs four times, primarily due to “repeated problems with the vehicle’s navigation system.” “Plaintiff attempted to secure a statutory repurchase under the Song-Beverly Consumer Warranty Act, but Defendant refused to repurchase or replace the defective vehicle.” In addition, Patel’s “friend, Arjang Fayaz, was the primary driver of the subject vehicle.” The stipulation noted that “All other issues, including liability, causation, and damages, are controverted.”

MBUSA deposed both Patel and Fayaz on October 6, 2015, according to a declaration filed by plaintiffs’ counsel after trial. Plaintiffs’ counsel stated that he “represented Fayaz at his deposition as if he was a plaintiff, not a third-party.” The vehicle was returned and the lease was terminated on August 27, 2016.

In its trial brief, MBUSA stated that Fayaz testified in his deposition that he “reimburses Mr. Patel for all the payments related to the vehicle.” MBUSA asserted that the “complaints lodged by the primary driver, Mr. Fayaz, were minimal and largely went unverified, if they were present at all.” MBUSA also asserted that “[t]here was no breach of the implied warranty of merchantability, because the vehicle was fit for the ordinary purposes for which vehicles are used.” In its trial brief, MBUSA did not argue that Patel was not entitled to damages due to Fayaz’s payments to Patel.

C. Trial and verdict
D.
Trial began on January 31, 2018. No trial transcript is included in the record, and the facts generally are not controverted on appeal. Plaintiffs state in their opening brief on appeal that Fayaz “was prepared and represented as though he were the plaintiff.” On February 6 MBUSA filed a motion for nonsuit, asserting that Patel was not present at trial, and he had failed to establish that he was damaged: “[T]he evidence was clear that Arjang Fayaz made all payments related to the vehicle and incurred all costs related to the vehicle—Mr. Fayaz testified to it repeatedly. Plaintiff [Patel] has put on no evidence that the vehicle was worth anything less to him because he paid absolutely nothing for the vehicle. As such the ‘value’ of the vehicle to Nilay Patel has not been impaired at all, let alone substantially impaired.” MBUSA stated that “Fayaz is not a party to this action and is free to file his own lawsuit tomorrow. There is simply no purpose to continue on with this case which seeks damages for plaintiff Patel.”

Patel opposed the motion, asserting that Patel leased the vehicle, and payments were made to MBUSA through Patel’s bank account. Patel acknowledged that the “evidence reflects that Mr. Fayaz was the primary driver of the vehicle and paid all costs associated with leasing and driving the vehicle.” Patel asserted that the source of the funds he used to pay for the leased vehicle was irrelevant to his claims. Patel asked that the motion be denied, and in the alternative, requested leave to amend the complaint to conform to proof by adding Fayaz as a party.

A minute order dated February 8 states the court’s ruling: “Defendant’s Motion for Nonsuit is DENIED. [¶] Plaintiff’s Motion to Amend is GRANTED.” Plaintiffs state in their opening brief on appeal that “the trial court added Fayaz as an indispensable party.” According to another minute order, on February 9 MBUSA moved for a directed verdict against Fayaz for lack of standing, and for a directed verdict against Patel for lack of damages. The court denied both motions.

The jury returned a verdict on February 9. The portion of the jury verdict form addressing express warranty asked, “Did Nilay Patel or Arjang Fayaz lease a vehicle distributed by Mercedes-Benz?” The jury answered yes. The verdict form asked, “Did Mercedes Benz give Nilay Patel or Arjang Fayaz a written warranty?” The jury answered yes. The jury also found that the vehicle had a defect covered by the warranty that substantially impaired the vehicle’s use, value, or safety, and that MBUSA failed to repair the defect or replace the vehicle.

A separate section of the verdict form asked the jury to determine damages. One line of this section was for “[a]ctual payments paid or payable by Nilay Patel to lease the vehicle.” The jury put a zero on this line. A separate line was for “[a]ctual payments paid or payable by Arjang Fayaz to lease the vehicle.” Here, the jury inserted a figure of $21,434.37. The jury wrote zeroes on additional lines for sales taxes and other fees, and “[c]onsequential damages.”

The court entered a judgment stating, “Plaintiffs Nilay Patel or Arang Fayaz shall recover from Defendant, Mercedes-Benz USA, LLC, the amount of $19,767.85 with interest thereon at the rate of ten percent per annum from the date of entry of this judgment until paid.” The judgment also stated that “Plaintiffs” shall recover costs, attorney fees, and prejudgment interest; the amounts were left blank.

E. Motion for attorney fees
F.
Plaintiffs moved for attorney fees under section 1794, subdivision (d), which states that where a “buyer prevails in an action” under the Act, the buyer is entitled to “attorney’s fees based on actual time expended . . . in connection with the commencement and prosecution of such action.” (§ 1794, subd. (d).) Plaintiffs sought $190,090.00 in attorney fees for work by two different law firms, plus a lodestar multiplier of 1.5, for a total award of $285,135.00.

Plaintiffs asserted that the fees were warranted because the case had been pending for nearly four years and the parties had taken more than a dozen depositions. Plaintiffs said they expected MBUSA to argue that Fayaz was not entitled to recover attorney fees because he was not joined as a party until trial. Plaintiffs asserted that the case would not have been litigated any differently if Fayaz had been joined earlier since Fayaz was deposed as a witness, and MBUSA’s consistent defense throughout the case was that the vehicle was not defective. Plaintiffs argued that the lodestar multiplier was warranted “to account for the delay in payment and contingent risk posed by this case.”

MBUSA opposed the motion. It argued that Patel had recovered nothing, and only Fayaz was entitled to damages. MBUSA asserted that Patel was therefore not the prevailing party and he was not entitled to any attorney fees. MBUSA contended that Fayaz was not entitled to recover attorney fees for the work done while Patel was the sole plaintiff. It continued, “At most, Mr. Fayaz is entitled to $5,412.00 he ostensibly incurred when the action was being prosecuted on his behalf.” MBUSA reached this figure by adding together the fees incurred in the “five day period plaintiffs’ attorneys were actively prosecuting the action on behalf of plaintiff Fayaz,” and dividing the sum in half to subtract fees for work done on behalf of Patel.

MBUSA also asserted that the fees requested were excessive for a simple lemon law case. It further contended that particular fee entries were excessive, and that the rates charged were inflated.

After a hearing, the court granted the motion for attorney fees, but held that only Fayaz was entitled to an award of fees. The court stated, “Fayaz is the only party that can properly be considered a prevailing party under the Song-Beverly Act. Patel’s litigation objective in this case was to recover damages from Mercedes-Benz, but the jury awarded him none.” The court therefore assessed “the reasonableness of the attorney’s fees incurred after Fayaz was joined as an indispensable party on February 8, 2018.” The court found the time and rates charged by plaintiffs’ counsel from February 8 onward were reasonable, and declined to impose a lodestar enhancement. The court rejected MBUSA’s assertion that the fees after February 8 should be split in half because there were two plaintiffs. The court therefore awarded Fayaz $22,772.50 in attorney fees, which included fees relating to the motion.

Plaintiffs timely appealed from the court’s order on the motion for attorney fees.

DISCUSSION

Plaintiffs contend the trial court erred in limiting the attorney fee award to fees incurred only after Fayaz was added to the case as a plaintiff, and by finding that Patel was not a prevailing party. MBUSA asserts that the trial court’s ruling was correct. We review a trial court’s order awarding attorney fees and costs under the Act for abuse of discretion. (Hanna v. Mercedes-Benz USA, LLC (2019) 36 Cal.App.5th 493, 507.) However, “‘the determination of the legal basis for an attorney fee award is subject to independent review. [Citation.] In such a case, the issue involves the application of the law to undisputed facts.’” (Wohlgemuth v. Caterpillar Inc. (2012) 207 Cal.App.4th 1252, 1258.)

The appropriateness of an attorney fee award must be considered in light of the relevant statutory scheme. “The Song-Beverly Act requires a manufacturer that gives an express warranty on a new motor vehicle to service or repair that vehicle to conform to the warranty. If the manufacturer is unable to do so after a reasonable number of attempts, the purchaser may seek replacement of the vehicle or restitution in an amount equal to the purchase price less an amount directly attributable to use by the purchaser prior to the discovery of the nonconformity.” (Hanna v. Mercedes-Benz USA, LLC, supra, 36 Cal.App.5th at p. 497, fn. 2; see also § 1793.2, subd. (d)(2).) Under the Act, “a buyer of a new motor vehicle shall also include a lessee of a new motor vehicle.” (§ 1793.2, subd. (d)(2)(D).)

A “buyer of consumer goods who is damaged by” the breach of an express warranty “may bring an action for the recovery of damages and other legal and equitable relief.” (§ 1794, subd. (a).) “If the buyer prevails in an action under this section, the buyer” is entitled to recover “attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Id., subd. (d).) “By permitting prevailing buyers to recover their attorney fees in addition to costs and expenses, our Legislature has provided injured consumers strong encouragement to seek legal redress in a situation in which a lawsuit might not otherwise have been economically feasible.” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 994.)

Plaintiffs assert that Patel was a “buyer” with standing to sue under the Act, and because the jury determined that MBUSA breached the express warranty for the vehicle he leased, Patel was the prevailing party under the Act. MBUSA asserts that Patel cannot be deemed a prevailing party, because the jury did not award him any damages, and the “idea that Patel’s litigation objective was to have the jury award him nothing is preposterous.”

There is no question that plaintiffs, rather than MBUSA, prevailed on the express warranty claim. The jury found that MBUSA leased the vehicle to “Nilay Patel or Arjang Fayaz”; MBUSA provided a written warranty; the vehicle had a defect that substantially impaired the vehicle’s use, value, or safety; and MBUSA failed to repair or replace the vehicle. The jury awarded damages caused by the breach. Thus, there is no question that based on the findings of the jury, plaintiffs prevailed on their express warranty claim under the Act.

The question is therefore whether attorney fees should be limited because Patel—the lessee and party to the express warranty—initiated the case, but the jury ultimately awarded damages to Fayaz rather than Patel. In essence, MBUSA asserts that neither Patel, nor Fayaz, nor plaintiffs collectively are entitled to collect attorney fees for the initiation and preparation of the case, despite the successful prosecution of the breach of express warranty claim. This position contradicts both the language and intent of the attorney fee provision in the Act.

Section 1794, subdivision (d) makes clear that a prevailing party is entitled to attorney fees “based on actual time expended . . . in connection with the commencement and prosecution of such action.” Here, the trial court denied all fees associated with “the commencement and prosecution of the action,” and instead awarded fees only from the penultimate day of trial onward. There can be no question that at least some of plaintiffs’ attorneys’ work in initiating the case, conducting discovery, preparing the case for trial, and the first days of trial were essential to plaintiffs’ success. The trial court’s limitation of fees, without regard to the “actual time expended” by plaintiffs’ counsel in successfully initiating and prosecuting the case under the Act, was an abuse of discretion.

The court also erred in finding that Patel was not a prevailing party based solely on the lack of a damage award to Patel. The Act does not define “prevailing party.” MBUSA asserts that Patel was not a prevailing party under Code of Civil Procedure section 1032, subdivision (a)(4), which defines a prevailing party to include a party “with a net monetary recovery.” However, where a fee-shifting statute such as section 1794 is concerned, “attorney fees recovery is governed by the fee-shifting statute itself, rather than a rigid adherence to Code of Civil Procedure section 1032.” (Wohlgemuth v. Caterpillar Inc., supra, 207 Cal.App.4th at p. 1264.) To that end, to determine the “prevailing party” under the Act, “the trial court should simply take a pragmatic approach to determine which party has prevailed. That is, the trial court would determine which party succeeded on a practical level, by considering the extent to which each party realized its litigation objectives.” (Ibid.)

Thus, the prevailing party under section 1794, subdivision (d) is not necessarily determined by whether there is a net monetary recovery. (MacQuiddy v. Mercedes-Benz USA, LLC (2015) 233 Cal.App.4th 1036, 1047.) Instead, “‘a party who is denied direct relief on a claim may nonetheless be found to be a prevailing party if it is clear that the party has otherwise achieved its main litigation objective.’” (Id. at p. 1048.)

MBUSA contends that Patel did not meet his litigation objective, because “there is nothing in the record to support [Patel’s] claim that he really intended all along to have the jury award him nothing.” This glib characterization of Patel’s litigation objectives is inaccurate. Plaintiffs note that restitution damages are defined by the Act and relate to the vehicle; Patel did not seek individualized damages. Plaintiffs assert that Patel’s objective was to have MBUSA return the car payments, and that goal was achieved. Indeed, the express warranty claim involved a single, allegedly defective vehicle, the objective in initiating the action was to recover damages associated with the breach of the warranty on that vehicle, and the jury awarded those damages. That plaintiffs had a separate agreement by which Fayaz reimbursed Patel for the lease payments did not undermine the single, overarching litigation objective for the case.

In addition, MBUSA cites no authority supporting its claim that a single cause of action involving breach of a warranty on a vehicle can be deemed unsuccessful, despite a jury verdict to the contrary, because the cause of action was asserted by two different plaintiffs. We have found no authority that suggests that under circumstances such as the ones in this case involving a single vehicle, the parties’ litigation objectives may be separately parsed.

Moreover, the court’s limitation of the fee award was at odds with the purposes behind fee awards in consumer protection legislation such as the Act. Attorney fee provisions in consumer protection statutes “allow[ ] consumers to pursue remedies in cases as here, where the compensatory damages are relatively modest. To limit the fee award to an amount less than that reasonably incurred in prosecuting such a case, would impede the legislative purpose underlying” such statutes. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 150 [addressing attorney fee provisions in the Automobile Sales Finance Act, § 2981 et seq., and the Consumers Legal Remedies Act, § 1750 et seq.]; see also Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 39 [“Graciano’s reasoning applies with equal force here, a case involving a prevailing buyer seeking attorney fees under the Song-Beverly Act.”].) By limiting the attorney fee award to only the last days of trial onward, the trial court’s ruling contradicted the purposes of the fee-shifting provision of the Act, intended to award fees reasonably incurred in prosecuting a case.

MBUSA argues that Patel should be judicially estopped from “claiming that he was suing on behalf of Fayaz.” Judicial estoppel “‘prevents a party from “asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding. The doctrine serves a clear purpose: to protect the integrity of the judicial process.”’” (Daar & Newman v. VRL International (2005) 129 Cal.App.4th 482, 490-491.) Here, nothing in the record suggests there was any confusion about Fayaz’s role in the case. Plaintiffs’ counsel stated that both Patel and Fayaz were deposed in October 2015. A list of stipulated facts signed by counsel for both parties in June 2016 stated that Fayaz “was the primary driver of the subject vehicle.” Trial began a year and a half later, in January 2018, and Fayaz testified. Nothing in the record suggests the parties were unclear about Fayaz’s role before trial began. Arguably, Fayaz could have been included as a plaintiff earlier in the litigation, as he was the party affected by the breach and the efforts to have the vehicle repaired. However, there is no support for MBUSA’s characterization that Patel was not forthcoming about Fayaz’s involvement “right up until the time that he realized that he had not proven any damages.” As Patel has not taken inconsistent positions, judicial estoppel does not apply.

The trial court erred by finding that Patel was not a prevailing party, and by limiting the attorney fee award to fees incurred only after Fayaz was added as a party. The order is therefore reversed. Because the trial court did not address the parties’ contentions regarding the fees requested for work completed before Fayaz was joined, the matter is remanded to allow the trial court to determine the amount of fees “reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (§ 1794, subd. (d).)

DISPOSITION

The order on plaintiffs’ motion for attorney fees is reversed. The matter is remanded for additional proceedings consistent with this opinion, including a determination of the appropriate attorney fee award to plaintiffs under section 1794, subdivision (d). Plaintiffs are entitled to recover their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

WILLHITE, J.

Case Number: BS138171
WRITERS GUILD OF AMERICA WEST INC VS CITIZEN JANE PRODUCTION
Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 07/10/2012
Case Type: Petition to Compel/Confirm/Vacate Arbitration (General Jurisdiction)
Status: Arbitration Award 03/01/2013

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FUTURE HEARINGS
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

None

PARTY INFORMATION
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

CIBOLA ENTERTAINMENT LLC – Defendant

CIBOLA ENTERTAINMENT LLC – Respondent

CITIZEN JANE PRODUCTIONS LLC – Defendant

CITIZEN JANE PRODUCTIONS LLC – Respondent

DALESSANDRO JAMES – Appellant

DALESSANDRO JAMES – Appellant

LEVINE PAUL S. ESQ. – Attorney for Appellant

MITCHELL ERIC A. – Respondent

MITCHELL ERIC A. – Defendant

STAUB DAVID JOSHUA ESQ. – Attorney for Defendant

WRITERS GUILD OF AMERICA WEST INC. – Plaintiff

WRITERS GUILD OF AMERICA WEST INC. – Respondent

Documents Filed
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Documents Filed (Filing dates listed in descending order)

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02/15/2019 11/27/2018 07/17/2018 01/05/2018 09/13/2017 04/27/2017 12/24/2015

09/13/2019 Acknowledgment of Satisfaction of Judgment
Filed by Eric A. Mitchell (Defendant)

08/30/2019 Notice (of Entry of Signed Order)
Filed by Eric A. Mitchell (Defendant)

08/30/2019 Notice (of Entry of Minute Order)
Filed by Eric A. Mitchell (Defendant)

08/26/2019 Certificate of Mailing for ((Ruling on Submitted Matter RE Motion for Attorney Fees) of 08/26/2019)
Filed by Clerk

08/26/2019 Minute Order ( (Ruling on Submitted Matter RE Motion for Attorney Fees))
Filed by Clerk

08/26/2019 Order (Proposed order granting fee motion)
Filed by Eric A. Mitchell (Defendant)

08/23/2019 Minute Order ( (Hearing on Motion for Attorney Fees))
Filed by Clerk

08/23/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore (Mary R. Rickey)
Filed by Writers Guild of America, West Inc. (Plaintiff)

08/20/2019 Notice (of Telephonic Appearance)
Filed by Eric A. Mitchell (Defendant)

08/01/2019 Notice (of entry of July 31, 2019 order)
Filed by Eric A. Mitchell (Defendant)

07/31/2019 Certificate of Mailing for ((RESCHEDULE HEARING ON MOTION FOR ATTORNEY’S FEES) of 07/31/2019)
Filed by Clerk

07/31/2019 Minute Order ( (RESCHEDULE HEARING ON MOTION FOR ATTORNEY’S FEES))
Filed by Clerk

07/29/2019 Opposition (to Motion for Attorney’s Fees)
Filed by James Dalessandro (Appellant)

07/29/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

07/29/2019 Reply (in Support of Mitchell’s Motion for Attorney’s Fees)
Filed by Eric A. Mitchell (Defendant)

07/15/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

07/15/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

07/12/2019 Request for Judicial Notice
Filed by Eric A. Mitchell (Defendant)

07/12/2019 Motion for Attorney Fees (of $12,500)
Filed by Eric A. Mitchell (Defendant)

06/05/2019 Appeal – Remittitur – Appeal Dismissed (B289365)
Filed by Clerk

05/28/2019 Minute Order ( (Hearing on Motion to Quash SERVICE OF THE ?APPLICATION AND OR…))
Filed by Clerk

03/27/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/27/2019 Notice (of Consent for Service on Judgment Debtor’s Attorney (CCP 684.020))
Filed by Eric A. Mitchell (Defendant)

03/27/2019 Notice (of Entry of Judgment or Order (March 26, 2019))
Filed by Eric A. Mitchell (Defendant)

03/26/2019 Minute Order ( (Hearing on Motion to Quash Service of the Application and Ord…))
Filed by Clerk

03/21/2019 Minute Order ( (Ruling on Submitted Matter RE ORDER GRANTING EX PARTE APPLICA…))
Filed by Clerk

03/21/2019 Proof of Service by Mail
Filed by Eric A. Mitchell (Defendant)

03/21/2019 Acknowledgment of Satisfaction of Judgment
Filed by Eric A. Mitchell (Defendant)

03/21/2019 Minute Order ( (Hearing on Ex Parte Application for order shortening time to …))
Filed by Clerk

03/21/2019 Order (Order Granting Ex Parte Application for Order Shortening Time to Hear Motion to Quash)
Filed by Eric A. Mitchell (Defendant)

03/19/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/19/2019 Reply ( in Support of Ex Parte Application)
Filed by Eric A. Mitchell (Defendant)

03/19/2019 Memorandum of Points & Authorities
Filed by James Dalessandro (Appellant)

03/19/2019 Ex Parte Application (for order shortening time to hear motion to quash order to appear for examination issued 1/8/19)
Filed by Eric A. Mitchell (Defendant)

03/19/2019 Memorandum of Points & Authorities
Filed by James Dalessandro (Appellant)

03/18/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Reply (in Support of Motion to Quash)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Request (for Judicial Notice)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Substitution of Attorney
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Motion to Quash (Service of the “Application and Order for Appearance and Examination” Issued 01/09/2019)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Notice (of Withdrawal of Motion)
Filed by James Dalessandro (Appellant)

03/18/2019 Memorandum of Points & Authorities
Filed by James Dalessandro (Appellant)

03/18/2019 Opposition (to Attorney Fee Motion set for 3/29/19)
Filed by Eric A. Mitchell (Defendant)

03/07/2019 Motion for Attorney Fees
Filed by James Dalessandro (Appellant)

03/07/2019 Proof of Service (not Summons and Complaint)
Filed by James Dalessandro (Appellant)

03/07/2019 Substitution of Attorney
Filed by Eric A. Mitchell (Defendant)

03/04/2019 Minute Order ( (Hearing on Motion – Other post judgment costs))
Filed by Clerk

02/20/2019 Appeal Record Delivered
Filed by Clerk

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 02/15/2019 11/27/2018 07/17/2018 01/05/2018 09/13/2017 04/27/2017 12/24/2015

02/15/2019 Notice of Limited Scope Representation
Filed by Eric A. Mitchell (Defendant)

02/13/2019 Minute Order ( (Hearing on Motion – Other post judgment costs))
Filed by Clerk

02/13/2019 Notice (OF CONTINUANCE)
Filed by Eric A. Mitchell (Defendant)

02/13/2019 Appeal – Ntc Designating Record of Appeal APP-003/010/103
Filed by James Dalessandro (Appellant)

02/08/2019 Notice of Limited Scope Representation
Filed by Eric A. Mitchell (Defendant)

02/08/2019 Notice of Limited Scope Representation
Filed by David Joshua Staub, Esq. (Attorney)

02/07/2019 Memorandum of Points & Authorities ((Supplemental))
Filed by James Dalessandro (Appellant)

02/05/2019 Appellate Order Extension of Time (Order granting appellant 15 days to file amended designation on appeal filed 10/25/18.)
Filed by Clerk

02/04/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

02/04/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

02/04/2019 Request for Judicial Notice
Filed by Eric A. Mitchell (Defendant)

02/04/2019 Reply (Reply for Motion for Costs set for 2/13/19)
Filed by Eric A. Mitchell (Defendant)

01/30/2019 Memorandum of Points & Authorities
Filed by James Dalessandro (Appellant)

01/25/2019 Acknowledgment of Satisfaction of Judgment
Filed by Eric A. Mitchell (Defendant)

01/25/2019 Minute Order ( (Hearing on Application for Order for Appearance and Examinati…))
Filed by Clerk

01/24/2019 Declaration (in Opposition to Judgment Debtor Examination)
Filed by James Dalessandro (Appellant)

01/17/2019 Acknowledgment of Satisfaction of Judgment
Filed by James Dalessandro (Appellant)

01/17/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

01/17/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

01/17/2019 Notice of Change of Address or Other Contact Information
Filed by Eric A. Mitchell (Defendant)

01/15/2019 Appeal – Reporter Appeal Transcript Process Fee Paid
Filed by James Dalessandro (Appellant); James Dalessandro (Appellant)

01/11/2019 Notice of Rejection – Post Judgment
Filed by Clerk

01/10/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

01/10/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

01/10/2019 Appeal – Ntc Designating Record of Appeal APP-003/010/103
Filed by James Dalessandro (Appellant)

01/09/2019 Application and Order for Appearance and Examination
Filed by James Dalessandro (Appellant)

01/08/2019 Notice of Limited Scope Representation
Filed by David Joshua Staub, Esq. (Attorney)

01/08/2019 Notice (of Errata re ?NOTICE OF ERRATA REGARDING HIS ?MOTION AND MOTION TO RECOVER POSTJUDGMENT ENFORCEMENT COSTS OF $4,979.15? SIGNED 1/1/19)
Filed by Eric A. Mitchell (Defendant)

01/07/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

01/02/2019 Motion for Order (recover post judgment costs)
Filed by Eric A. Mitchell (Defendant)

12/18/2018 Appellate Order Dismissing Appeal (ORDER DISMISSING APPEAL FILED 10/25/18)
Filed by Clerk

12/13/2018 Clerk’s Notice of Non-Compliance of Default on Appeal
Filed by Clerk

11/28/2018 Abstract of Judgment – Civil and Small Claims
Filed by Clerk

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 02/15/2019 11/27/2018 07/17/2018 01/05/2018 09/13/2017 04/27/2017 12/24/2015

11/27/2018 Proof of Personal Service
Filed by Eric A. Mitchell (Defendant)

11/20/2018 Notice of Default
Filed by Clerk

11/16/2018 Proof of Service (not Summons and Complaint)
Filed by Writers Guild of America, West Inc. (Plaintiff)

11/08/2018 Notice of Rejection – Post Judgment
Filed by Clerk

10/26/2018 Appeal – Notice of Filing of Notice of Appeal
Filed by Clerk

10/25/2018 Appeal – Notice of Appeal/Cross Appeal Filed (with proof of service)
Filed by James Dalessandro (Appellant)

10/11/2018 Application and Order for Appearance and Examination
Filed by Eric A. Mitchell (Defendant)

10/10/2018 Notice of Rejection – Post Judgment
Filed by Clerk

10/09/2018 Notice of Entry of Judgment or Order

10/09/2018 Notice of Entry of Judgment or Order

10/09/2018 Notice of Entry of Judgment or Order

09/25/2018 ORDER DENYING “NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING RESPONSES TO DEMAND FOR IDENTIFICATION, PRODUCTION AND COPYING OF DOCUMENTS AND IMPOSING MONETARY SANCTIONS” SIGNED 4/20/ 18

09/25/2018 Order
Filed by Debtor

09/24/2018 STATEMENT PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3. 1312 SUBD. (B)

09/24/2018 Proof of Service

09/13/2018 Proof of Service

09/13/2018 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

08/20/2018 Minute order entered: 2018-08-20 00:00:00
Filed by Clerk

08/20/2018 Minute order entered: 2018-08-20 00:00:00
Filed by Clerk

08/20/2018 STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER

08/20/2018 REQUEST FOR JUDICIAL NOTICE

08/20/2018 Minute Order

08/20/2018 Minute Order

08/20/2018 NOTICE OF LIMITED SCOPE REPRESENTATION

08/20/2018 Notice
Filed by Eric A. Mitchell (Defendant)

08/20/2018 Request
Filed by Petitioner

08/16/2018 SUBSTITUTION OF ATTORNEY

08/16/2018 Substitution of Attorney
Filed by Debtor

08/14/2018 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING RESPONSES TO DEMAND FOR IDENTIFICATION, PRODUCTION AND COPYING OF DOCUMENTS AND IMPOSING MONETARY SANCTIONS; SUPPORTING DECLARATION OF PAUL S. LEVINE, ESQ.

08/14/2018 Reply/Response
Filed by Writers Guild of America, West Inc. (Plaintiff)

08/10/2018 SUBSTITUTION OF ATTORNEY

08/10/2018 Substitution of Attorney
Filed by Debtor

08/07/2018 ERIC A. MITCHELL’S OPPOSITION TO NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING RESPONSES TO DEMAND FOR IDENTIFICATION, PRODUCTION AND COPYING OF DOCUMENTS AND IMPOSING MONETARY SANCTIONS SIGNED 4/20/ 18 ; DECLARATION OF D. JOSHUA STAUB

08/07/2018 Opposition Document
Filed by Creditor

07/24/2018 Minute order entered: 2018-07-24 00:00:00
Filed by Clerk

07/24/2018 Minute Order

07/23/2018 Proof of Service

07/23/2018 DECLARATION OF PAUL S. LEVINE IN SUPPORT OF AWARD OF ATTORNEY’S FEES ON RESPONDEN’S MOTION FOR SANCTIONS

07/23/2018 JAMES DALESSANDRO’S RESPONSES TO EVIDENTIARY OBJECTION TO DECLARATION OF PAUL S. LEVINE

07/23/2018 Declaration
Filed by Petitioner

07/23/2018 Proof of Service (not Summons and Complaint)
Filed by Plaintiff/Petitioner

07/23/2018 Reply/Response
Filed by Petitioner

07/19/2018 NOTICE OF RULING ON FAILURE TO APPEAR FOR JUDGMENT DEBTOR EXAMINATION

07/19/2018 Notice of Ruling
Filed by Writers Guild of America, West Inc. (Plaintiff)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 02/15/2019 11/27/2018 07/17/2018 01/05/2018 09/13/2017 04/27/2017 12/24/2015

07/17/2018 EVIDENTIARY OBJECTION TO DECLARATION OF PAUL S. LEVINE SIGNED 7/11/18

07/17/2018 ERIC A. MITCHELL’S REPLY IN SUPPORT OF HIS NOTICE OF MOTION AND MOTION FOR SANCTIONS OF $11,000 AGAINST PAUL SAMUEL LEVINE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF D. JOSHUA STAUB

07/17/2018 Objection Document
Filed by Debtor

07/17/2018 Reply/Response
Filed by Debtor

07/16/2018 Minute order entered: 2018-07-16 00:00:00
Filed by Clerk

07/16/2018 Minute Order

07/16/2018 ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

07/16/2018 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Plaintiff/Petitioner

07/12/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SANCTIONS OF $11,000 AGAINST PAUL SAMUEL LEVINE; DECLARATION OF PAUL S. LEVINE

07/12/2018 Points and Authorities
Filed by Petitioner

07/05/2018 Proof of Service (not Summons and Complaint)
Filed by Petitioner

06/20/2018 NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL (UNLIMITED CIVIL)

06/20/2018 Ntc to Reptr/Mon to Prep Transcrpt
Filed by Clerk

06/18/2018 ERIC A. MITCHELL S NOTICE OF MOTION AND MOTION FOR SANCTIONS OF $11,000 AGAINST PAUL SAMUEL LEVINE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF D. JOSHUA STAUB

06/18/2018 Notice of Motion
Filed by Debtor

06/14/2018 Minute order entered: 2018-06-14 00:00:00
Filed by Clerk

05/14/2018 NOTICE OF DEFAULT

05/14/2018 Notice
Filed by Clerk

05/02/2018 APPELLANT’S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)

05/02/2018 Designation of Record on Appeal
Filed by James Dalessandro (Appellant)

05/01/2018 APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION (ATTACHMENT – ENFORCEMENT OF JUDGMENT)

05/01/2018 Application and Order for Appearance and Examination
Filed by Plaintiff/Petitioner

04/26/2018 NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING RESPONSES TO DEMAND FOR IDENTIFICATION, PRODUCTION AND COPYING OF DOCUMENTS AND IMPOSING MONETARY SANCTIONS; ETC

04/26/2018 Motion for an Order
Filed by Petitioner

04/12/2018 NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

04/12/2018 Ntc to Attorney re Notice of Appeal
Filed by Clerk

04/11/2018 Minute order entered: 2018-04-11 00:00:00
Filed by Clerk

04/11/2018 NOTICE OF APPEAL

04/11/2018 Minute Order

04/11/2018 Notice of Appeal
Filed by James Dalessandro (Appellant)

03/13/2018 NOTICE OF ENTRY OF JUDGMENT OR ORDER

03/13/2018 NOTICE OF ENTRY OF JUDGMENT OR ORDER

03/13/2018 Notice of Entry of Judgment
Filed by Debtor

03/02/2018 Minute order entered: 2018-03-02 00:00:00
Filed by Clerk

03/02/2018 Minute Order

03/02/2018 Proof of Service

03/02/2018 Proof of Service (not Summons and Complaint)
Filed by Defendant/Respondent

03/01/2018 Minute order entered: 2018-03-01 00:00:00
Filed by Clerk

03/01/2018 Minute Order

03/01/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION TO SHORTEN TIME TO NEAR MOTION TO QUASH SERVICE OF ORDER TO APPEAR FOR EXAMINATION; DECLLARATION OF AND PAUL S. LEVINE IN SUPPORT THEREOF

03/01/2018 Minute Order

03/01/2018 ERIC A. MITCHELL’S EX PARTE APPLICATION FOR AN ORDER SHORTENING THE TIME TO HEAR HIS “NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF ORDER TO APPEAR FOR EXAMINATION AND CONTINUING THE 3/2/18 DEBTOR EXAMINATION UNTIL AFTER THE COURT RULES ON THE MOTION TO

03/01/2018 Ex-Parte Application
Filed by Debtor

02/28/2018 NOTICE OF ENTRY OF JUDGMENT OR ORDER

02/28/2018 Notice of Entry of Judgment
Filed by Debtor

02/22/2018 ERIC A. MITCHELL’S NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF ORDER TO APPEAR FOR EXAMINATION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF D. JOSHUA STAUB

02/22/2018 PROOF OF PERSONAL SERVICE

02/22/2018 PROOF OF SERVICE BY FIRST-CLASS MAIL

02/22/2018 Motion to Quash
Filed by Debtor

02/14/2018 NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL(UNLIMITED CIVIL)

02/14/2018 Ntc to Reptr/Mon to Prep Transcrpt
Filed by Clerk

01/08/2018 ACKNOWLEDGEMENT OF SATISFACTION OF JUDGEMENT

01/08/2018 APPELLANT’S NOTICE DESIGNATING RECORD ON APPEAL

01/08/2018 Notice of Designation of Record
Filed by Debtor

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 02/15/2019 11/27/2018 07/17/2018 01/05/2018 09/13/2017 04/27/2017 12/24/2015

01/05/2018 Minute order entered: 2018-01-05 00:00:00
Filed by Clerk

01/05/2018 Minute Order

12/28/2017 NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)

12/28/2017 Notice
Filed by Clerk

12/26/2017 NOTIDE OF CANCELLATION OF EXAMINATION OF JUDGMENT DEBTOR PAUL LEVINE

12/26/2017 PROOF OF SERVICE CIVIL

12/26/2017 PROOF OF SERVICE CIVIL

12/26/2017 ACKNOWLEDGEMENT OF SATISFACTION OF JUDGEMENT

12/26/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

12/26/2017 Satisfaction of Judgment
Filed by Creditor

12/26/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

12/26/2017 Notice
Filed by Creditor

12/22/2017 ACKNOWLEDGEMENT OF SATISFACTION OF JUDGEMENT

12/22/2017 PROOF OF SERVICE CIVIL

12/22/2017 NOTICE OF ENTRY OF JUDGMENT OR ORDER

12/22/2017 PROOF OF SERVICE CIVIL

12/22/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

12/22/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

12/22/2017 Satisfaction of Judgment
Filed by Creditor

12/22/2017 Notice of Entry of Judgment
Filed by Debtor

12/11/2017 NOTICE OF CONTINUANCE OF EXAMINATION OF JUDGMENT DEBTOR PAUL LEVINE

12/11/2017 Notice Re: Continuance of Hearing and Order
Filed by Creditor

12/06/2017 Minute order entered: 2017-12-06 00:00:00
Filed by Clerk

12/06/2017 Minute Order

12/06/2017 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Court

12/04/2017 Minute order entered: 2017-12-04 00:00:00
Filed by Clerk

12/04/2017 Minute Order

12/04/2017 Minute Order

11/28/2017 NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

11/28/2017 Ntc to Attorney re Notice of Appeal
Filed by Clerk

11/27/2017 Minute order entered: 2017-11-27 00:00:00
Filed by Clerk

11/27/2017 NOTICE OF ENTRY OF JUDGMENT OR ORDER

11/27/2017 ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

11/27/2017 NOTICE OF APPEAL

11/27/2017 Minute Order

11/27/2017 Order
Filed by Debtor

11/27/2017 Notice
Filed by Petitioner

11/27/2017 Notice of Appeal
Filed by Eric A. Mitchell (Defendant)

11/27/2017 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Court

11/17/2017 Cost Bill After Judgment
Filed by Plaintiff/Petitioner

11/17/2017 Abstract of Judgment – Civil and Small Claims
Filed by Assignee

11/17/2017 Writ issued
Filed by Assignee

11/06/2017 Minute order entered: 2017-11-06 00:00:00
Filed by Clerk

11/01/2017 NOTICE OF CONTINUANCE OF MOTION TO RECONSIDER ORDERS GRANTING MOTION TO STRIKE AND OR TAX COSTS AND IMPOSING SANCTIONS

11/01/2017 NOTICE OF CONTINUANCE OF MOTION FOR ATTORNEY S FEES AND COSTS INCURRED IN OPPOSING MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS PROCEEDING

11/01/2017 Notice Re: Continuance of Hearing and Order
Filed by Writers Guild of America, West Inc. (Plaintiff)

11/01/2017 Notice Re: Continuance of Hearing and Order
Filed by Heather L. Pearson (Attorney)

10/30/2017 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEY’S FEES AND COSTS INCURRED IN OPPOSING MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS PROCEEDING; ETC.

10/30/2017 MEMO OF COSTS AFTER JUDGEMENT, ACKNOWLEDGEMENT OF CREDIT AND DECLARATION OF ACCRUED INTEREST

10/30/2017 Reply/Response
Filed by Writers Guild of America, West Inc. (Plaintiff)

10/25/2017 Objection Document
Filed by Debtor

10/25/2017 DECLARATION OF D. JOSHUA STAUB

10/25/2017 EVIDENTIARY OBJECTION TO “DECLARATION OF PAUL S. LEVINE” SIGNED 7/17/17

10/25/2017 REQUEST FOR JUDICIAL NOTICE

10/25/2017 Request for Judicial Notice
Filed by Debtor

10/25/2017 Declaration
Filed by Debtor

10/19/2017 Opposition Document
Filed by Debtor

10/19/2017 Request for Judicial Notice
Filed by Debtor

10/19/2017 Declaration
Filed by Debtor

10/19/2017 Opposition Document
Filed by Debtor

10/19/2017 EVIDENTIARY OBJECTION TO “DECLARATION OF PAUL S. LEVINE” SIGNED 7/17/17

10/19/2017 OPPOSITION TO “NOTICE OF MOTION AND MOTION TO RECONSIDER ORDERS GRANTING MOTION TO STRIKE AND OR TAX COSTS AND IMPOSING SANCTIONS” SIGNED 7/7/17; ETC.

10/06/2017 Abstract of Judgment – Civil and Small Claims
Filed by Creditor

09/29/2017 Writ-Other Issued
Filed by Creditor

09/29/2017 Abstract of Judgment – Civil and Small Claims
Filed by Creditor

09/29/2017 Minute order entered: 2017-09-29 00:00:00
Filed by Clerk

09/29/2017 Minute Order

09/25/2017 Notice Re: Continuance of Hearing and Order
Filed by Writers Guild of America, West Inc. (Plaintiff)

09/25/2017 NOTICE OF CONTINUANCE OF JUDGMENT DEBTOR EXAMINATION

09/19/2017 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Court

09/19/2017 Minute order entered: 2017-09-19 00:00:00
Filed by Clerk

09/19/2017 ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

09/19/2017 Minute Order

09/14/2017 Objection Document
Filed by Debtor

09/14/2017 EVIDENTIARY OBJECTION TO ‘SUPPLEMENTAL DECLARATION OF PAUL S. LEVINE IN OPPOSITION TO SECOND MOTION TO VACATE AND SET ASIDE THE JUDGMENT AS VOID AND DISMISS THIS PROCEEDING OR IN THE ALTERNATIVE SET ASIDE THE JUDGMENT AS TO ERIC MITCHELL’ SIGNED 9/9/17

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 02/15/2019 11/27/2018 07/17/2018 01/05/2018 09/13/2017 04/27/2017 12/24/2015

09/13/2017 Abstract of Judgment – Civil and Small Claims
Filed by Creditor

09/13/2017 Writ issued
Filed by Creditor

09/11/2017 Declaration
Filed by Writers Guild of America, West Inc. (Plaintiff)

09/11/2017 Points and Authorities
Filed by Writers Guild of America, West Inc. (Plaintiff)

09/11/2017 Judgment
Filed by Assignee

09/11/2017 PROOF OF SERVICE BY FIRST-CLASS MAIL CIVIL

09/11/2017 AMENDED JUDGMENT

09/11/2017 SECOND SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO RECONSIDER ORDERS GRANTING MOTION TO STRIKE AND OR TAX COSTS AND IMPOSING SANCTIONS [CODE OF CIVIL PROCEDURE 1008(A)]

09/11/2017 SUPPLEMENTAL DECLARATION OF PAUL S. LEVINE IN OPPOSITION TO SECOND MOTION TO VACATE AND SET ASIDE THE JUDGMENT AS VOID AND DISMISS THIS PROCEEDING OR IN THE ALTERNATIVE SET ASIDE THE JUDGMENT AS TO ERIC MITCHELL

09/08/2017 Reply/Response
Filed by Debtor

09/08/2017 Memorandum of Costs
Filed by Eric A. Mitchell (Defendant)

09/08/2017 Reply/Response
Filed by Eric A. Mitchell (Defendant)

09/08/2017 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

09/08/2017 Proof of Service (not Summons and Complaint)
Filed by Creditor

09/08/2017 REPLY IN SUPPORT OF SECOND NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE THE JUDGMENT AS VOID AND DISMISS THIS PROCEEDING OR IN THE ALTERNATIVE SET ASIDE THE JUDGMENT AS TO ERIC MITCHELL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF D. JOSHU

09/08/2017 MEMO OF COSTS AFTER JUDGEMENT, ACKNOWLEDGEMENT OF CREDIT AND DECLARATION OF ACCRUED INTEREST

09/08/2017 Proof of Service

09/08/2017 Proof of Service Personal Service

09/08/2017 REPLY IN SUPPORT OF SECOND NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE THE JUDGMENT AS VOID AND DISMISS THIS PROCEEDING OR IN THE ALTERNATIVE SET ASIDE THE JUDGMENT AS TO ERIC MITCHELL; ETC.

09/05/2017 Declaration
Filed by Creditor

09/05/2017 Points and Authorities
Filed by Writers Guild of America, West Inc. (Plaintiff)

09/05/2017 DECLARATION FOR INTEREST

09/05/2017 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO SECOND MOTION TO VACATE AND SET ASIDE THE JUDGMENT AS VOID AND DISMISS THIS PROCEEDING OR IN THE ALTERNATIVE SET ASIDE THE JUDGMENT AS TO ERIC MITCHELL; DECLARATION OF AND PAUL S. LEVINE IN SUPPORT THE

09/01/2017 Proof of Service by Mail
Filed by Writers Guild of America, West Inc. (Plaintiff)

08/30/2017 Application and Order for Appearance and Examination
Filed by Plaintiff/Petitioner

08/30/2017 APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION – ENFORCEMENT OF JUDGMENT- JUDGMENT DEBTOR

08/28/2017 Supplemental Declaration
Filed by Debtor

08/28/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

08/28/2017 Writ-Other Issued
Filed by Clerk

08/28/2017 Proof of Service

08/28/2017 SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE

08/25/2017 Abstract of Judgment – Civil and Small Claims
Filed by Creditor

08/23/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

08/23/2017 Request for Judicial Notice
Filed by Creditor

08/23/2017 Motion for an Order
Filed by Creditor

08/23/2017 Notice Re: Continuance of Hearing and Order
Filed by Writers Guild of America, West Inc. (Plaintiff)

08/23/2017 Supplemental Declaration
Filed by Writers Guild of America, West Inc. (Plaintiff)

08/23/2017 Notice Re: Continuance of Hearing and Order
Filed by Writers Guild of America, West Inc. (Plaintiff)

08/23/2017 SECOND NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE THE JUDGMENT AS VOID AND DISMISS THIS PROCEEDING OR IN THE ALTERNATIVE SET ASIDE THE JUDGMENT AS TO ERIC MITCHELL; ETC.

08/23/2017 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO RECONSIDER ORDERS GRANTING MOTION TO STRIKE AND ETC

08/23/2017 Proof of Service

08/23/2017 NOTICE OF CONTINUANCE OF MOTION TO RECONSIDER ORDERS GRANTING MOTION TO STRIKE AND OR TAX COSTS AND IMPOSING SANCTIONS

08/23/2017 NOTICE OF CONTINUANCE OF MOTION FOR ATTORNEY’S FEES AND COSTS INCURRED IN OPPOSING MOTION TO VACATE AND ETC

08/23/2017 REQUEST FOR JUDICIAL NOTICE

07/31/2017 Proof of Service

07/31/2017 ACKNOWLEDGEMENT OF SATISFACTION OF JUDGEMENT

07/31/2017 Proof of Service

07/18/2017 Proof of Service (not Summons and Complaint)
Filed by Plaintiff/Petitioner

07/18/2017 Notice of Motion
Filed by Plaintiff/Petitioner

07/18/2017 Notice of Motion
Filed by Plaintiff/Petitioner

07/18/2017 NOTICE OF MOTION AND MOTION TO RECONSIDER ORDERS GRANTING MOTION TO STRIKE AND OR TAX COSTS AND IMPOSING SANCTIONS; ETC.

07/18/2017 NOTICE OF MOTION AND MOTION FOR ATTORNEY’S FEES AND COSTS INCURRED IN OPPOSING MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS PROCEEDING; ETC.

07/18/2017 NOTICE OF ENTRY OF JUDGMENT OR ORDER

07/18/2017 Proof of Service by 1st Class Mail

07/11/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

07/11/2017 Notice of Entry of Judgment
Filed by Debtor

07/11/2017 NOTICE OF ENTRY OF JUDGMENT OR ORDER

07/11/2017 PROOF OF SERVICE BY ELECTRONIC SERVICE

07/06/2017 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Court

07/06/2017 Minute order entered: 2017-07-06 00:00:00
Filed by Clerk

07/06/2017 ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

07/06/2017 Minute Order

06/29/2017 Objection Document
Filed by Debtor

06/29/2017 Objection Document
Filed by Debtor

06/29/2017 EVIDENTIARY OBJECTION TO “MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS PROCEEDING” SIGNED 6/19/17

06/29/2017 EVIDENTIARY OBJECTION TO “DECLARATION OF PAUL S. LEVINE” SIGNED 6/19/17

06/26/2017 Reply to Motion
Filed by Eric A. Mitchell (Defendant)

06/26/2017 Reply to Motion
Filed by Eric A. Mitchell (Defendant)

06/26/2017 Motion to Strike
Filed by Defendant/Respondent

06/26/2017 REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION TO STRIKE AND OR TAX COSTS CLAIMED IN THE “MEMORANDUM OF COSTS AFTER JUDGMENT, ACKNOWLEDGMENT OF CREDIT, AND DECLARATION OF ACCRUED INTEREST” EXECUTED ON 4/8/17 & REQUEST FOR AN ORDER REQUIRING PAUL S. LEVIN

06/26/2017 REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS THIS PROCEEDING; MEMORANDUM OF POINTS AND AUTHORITIES

06/21/2017 Points and Authorities
Filed by Plaintiff/Petitioner

06/21/2017 Points and Authorities
Filed by Plaintiff/Petitioner

06/21/2017 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS PROCEEDING

06/21/2017 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO STRIKE AND OR TAX COSTS; DECLARATION OF PAUL S. LEVINE

06/09/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

06/09/2017 PROOF OF SERVICE CIVIL

05/16/2017 Proof of Service (not Summons and Complaint)
Filed by Creditor

05/16/2017 PROOF OF SERVICE BY OVERNIGHT DELIVERY

05/08/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

05/08/2017 Notice
Filed by Debtor

05/08/2017 NOTICE OF JUDICIAL ASSIGNMENT TO DEPARTMENT 44

05/08/2017 PROOF OF SERVICE-CIVIL

05/04/2017 Writ-Other Issued
Filed by Creditor

05/04/2017 Abstract of Judgment – Civil and Small Claims
Filed by Creditor

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 02/15/2019 11/27/2018 07/17/2018 01/05/2018 09/13/2017 04/27/2017 12/24/2015

04/27/2017 Request for Judicial Notice
Filed by Debtor

04/27/2017 Notice of Motion
Filed by Debtor

04/27/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

04/27/2017 NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS PROCEEDING;ETC.

04/27/2017 REQUEST FOR JUDICIAL NOTICE

04/27/2017 PROOF OF SERVICE BY MAIL

04/25/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

04/25/2017 Proof of Service

04/24/2017 Request
Filed by Debtor

04/24/2017 Request for Judicial Notice
Filed by Debtor

04/24/2017 Notice of Motion
Filed by Debtor

04/24/2017 REQUEST FOR SERVICE ON ATTORNEY FOR JUDGMENT DEBTOR

04/24/2017 REQUEST FOR JUDICIAL NOTICE

04/24/2017 NOTICE OF MOTION AND MOTION TO STRIKE AND OR TAX COSTS CLAIMED IN THE “MEMORANDUM OF COSTS AFTER JUDGMENT, ACKNOWLEDGMENT OF CREDIT, AND DECLARATION OF ACCRUED INTEREST” EXECUTED ON 4/8/17 & REQUEST FOR AN ORDER REQUIRING PAUL S. LEVINE TO PAY THE REASONA

04/19/2017 Abstract of Judgment – Civil and Small Claims
Filed by Creditor

04/19/2017 Writ-Other Issued
Filed by Creditor

01/27/2017 Abstract of Judgment – Civil and Small Claims
Filed by Clerk

01/27/2017 Writ-Other Issued
Filed by Clerk

01/13/2017 Notice of Entry of Judgment
Filed by Plaintiff/Petitioner

01/13/2017 NOTICE OF ENTRY OF JUDGMENT OR ORDER

12/30/2016 Minute order entered: 2016-12-30 00:00:00
Filed by Clerk

12/30/2016 Minute Order

11/21/2016 Minute order entered: 2016-11-21 00:00:00
Filed by Clerk

11/21/2016 Declaration
Filed by Assignee

11/21/2016 Minute Order

11/21/2016 Minute Order

11/21/2016 DECLARATION OF PAUL S. LEVINE IN SUPPORT OF ENTRY OF AMENDED JUDGMENT

08/22/2016 Miscellaneous-Other
Filed by Petitioner

07/05/2016 Order
Filed by Petitioner

07/05/2016 ORDER ON MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AS JUDGMENT DEBTORS

06/27/2016 MEMO COSTS SUMMARY

06/27/2016 Declaration
Filed by Creditor

06/21/2016 Memo of Costs
Filed by Creditor

06/21/2016 Proof of Service (not Summons and Complaint)
Filed by Petitioner

06/21/2016 DECLARATION OF PAUL S. LEVINE IN SUPPORT OF ENTRY OF ORDER AND AMENDED JUDGMENT (CODE OF CIVIL PROCEDURE 187)

06/21/2016 PROOF OF SERVICE BY FIRST-CLASS MAIL CIVIL

06/10/2016 Minute order entered: 2016-06-10 00:00:00
Filed by Clerk

06/10/2016 Minute Order

05/19/2016 PROOF OF SERVICE OF MOTION

05/19/2016 Proof of Service (not Summons and Complaint)
Filed by Petitioner

05/19/2016 Proof of Service (not Summons and Complaint)
Filed by Petitioner

05/19/2016 PROOF OF SERVICE OF MOTION

05/19/2016 Proof of Service (not Summons and Complaint)
Filed by Petitioner

05/19/2016 PROOF OF SERVICE OF MOTION

04/21/2016 Minute order entered: 2016-04-21 00:00:00
Filed by Clerk

04/21/2016 Minute Order

04/04/2016 Proof of Service

02/18/2016 Notice of Hearing
Filed by Plaintiff/Petitioner

02/18/2016 NOTICE OF HEARING ON MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AS JUDGMENT DEBTORS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

02/05/2016 Minute order entered: 2016-02-05 00:00:00
Filed by Clerk

02/05/2016 Minute Order

01/19/2016 NOTICE OF TAKING OFF-CALENDAR HEARING ON MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AS JUDGMENT DEBTORS

01/19/2016 Notice
Filed by Petitioner

01/07/2016 DECLARATION OF DILIGENCE

01/07/2016 PROOF OF SERVICE

01/07/2016 Proof of Service (not Summons and Complaint)
Filed by Plaintiff/Petitioner

01/07/2016 Declaration
Filed by Plaintiff/Petitioner

01/07/2016 Proof of Service (not Summons and Complaint)
Filed by Plaintiff/Petitioner

01/07/2016 PROOF OF SERVICE BY MAIL

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 02/15/2019 11/27/2018 07/17/2018 01/05/2018 09/13/2017 04/27/2017 12/24/2015

12/24/2015 NOTICE OF HEARING ON MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AS JUDGMENT DEBTORS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF (CODE OF CIVIL PROCEDURE 187)

12/24/2015 Notice of Motion
Filed by Assignee

07/17/2014 NOTICE OF RULING ON MOTION UI JAMES DALESSANDRO TO AMEND JUDGMENT TO INCLUDE TALC MANAGERS (ALTER EGO) ANI) RELATED COMPANY AS JUDGMENT DEBTORS

07/17/2014 Notice Re: Continuance of Hearing and Order
Filed by Appellant

07/14/2014 Minute order entered: 2014-07-14 00:00:00
Filed by Clerk

07/14/2014 Minute Order

07/14/2014 STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER

07/14/2014 Order
Filed by Defendant/Respondent

07/14/2014 STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER

07/07/2014 DECLARATION OF JAMES J. DALESSANDRO IN SUPPORT OF MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS (CODE OF CIVIL PROCEDURE 187)

07/07/2014 DECLARATION OF JAMES J. DALESSANDRO IN SUPPORT OF MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS

07/07/2014 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS

07/07/2014 Declaration
Filed by Petitioner

07/07/2014 Reply/Response
Filed by Petitioner

07/01/2014 Minute order entered: 2014-07-01 00:00:00
Filed by Clerk

07/01/2014 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS (CODE OF CIVIL PROCEDURE 187)

07/01/2014 EX PARTE APPLICATION TO ALLOW LATE FILING OF OPPOSITION BRIEF BY NON-PARTY MARK MYDEN; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DAVID A. SHANEYFELT (CODE OF CIVIL PROCEDURE 187)

07/01/2014 DECLARATION OF PAUL S. LEVINE IN OPPOSITION TO EX PARTE APPLICATION TO ALLOW LATE FILING OF OPPOSITION BRIEF (CODE OF CIVIL PROCEDURE 187)

07/01/2014 MEMORANDUM OF NON-PARTY MARK MYDEN IN OPPOSITION TO DALESSANDROS MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS

07/01/2014 EX PARTE APPLICATION TO ALLOW LATE FILING OF OPPOSITION BRIEF BY NON-PARTY MARK MYDEN; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DAVID A. SHANEYFELT

07/01/2014 MEMORANDUM OF NON-PARTY MARK MYDEN IN OPPOSITION TO DALESSANDROS MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS (CODE OF CIVIL PROCEDURE 187)

07/01/2014 DECLARATION OF PAUL S. LEVINE IN OPPOSITION TO EX PARTE APPLICATION TO ALLOW LATE FILING OF OPPOSITION BRIEF (CODE OF CIVIL PROCEDURE 187)

07/01/2014 Minute Order

07/01/2014 Opposition Document
Filed by Assignee

07/01/2014 Memorandum – Other
Filed by Respondent

07/01/2014 Ex-Parte Application
Filed by Respondent

05/28/2014 NOTICE OF HEARING ON MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND ETC

05/28/2014 Notice of Motion
Filed by Assignee

12/02/2013 ACKNOWLEDGEMENT OF ASSIGNMENT OF JUDGMENT

12/02/2013 Miscellaneous-Other
Filed by Plaintiff/Petitioner

03/22/2013 Judgment
Filed by Petitioner

03/22/2013 Minute order entered: 2013-03-22 00:00:00
Filed by Clerk

03/22/2013 Minute Order

03/22/2013 JUDGMENT

03/08/2013 Notice of Ruling
Filed by Plaintiff/Petitioner

03/08/2013 NOTICE OF RULTNG ON PETITTON TO CONFIRM ARBITRATION AWARD AND HEARING ON JUDGMENT

03/01/2013 Declaration
Filed by Petitioner

03/01/2013 Attorney Order
Filed by Petitioner

03/01/2013 Minute order entered: 2013-03-01 00:00:00
Filed by Clerk

03/01/2013 ORDER CONFIRMING ARBITRATION AWARD AND AWARDING ATTORNEY’S FEES AND COSTS TO PETITIONER

03/01/2013 MINUTE ORDER

03/01/2013 DECLARATION OF HEATHER PEARSON IN SUPPORT OF INTERESTAND ATTORNEYS FEES

01/31/2013 Minute order entered: 2013-01-31 00:00:00
Filed by Clerk

01/31/2013 Minute Order

01/30/2013 Notice of Hearing
Filed by Plaintiff/Petitioner

01/30/2013 NOTICE OF HEARING ON PETITION TO CONFIRM ARBITRATION

12/17/2012 Notice of Case Management Conference
Filed by Clerk

12/17/2012 NOTICE OF CASE MANAGEMENT CONFERENCE

10/22/2012 Minute order entered: 2012-10-22 00:00:00
Filed by Clerk

10/22/2012 Minute Order

10/19/2012 Proof of Service (not Summons and Complaint)
Filed by Plaintiff/Petitioner

10/19/2012 PROOF OF SERVICE SUMM AND PETITION

10/19/2012 PROOF OF SERVICE SUMM AND PETITION

10/19/2012 Proof of Service

10/19/2012 PROOF OF SERVICE SUMM AND PETITION

10/19/2012 PROOF OF SERVICE SUMM AND PETITION

09/21/2012 Minute order entered: 2012-09-21 00:00:00
Filed by Clerk

09/21/2012 ORDER TO SHOW CAUSE HEARING

09/21/2012 OSC-Failure to ‘OTHER’
Filed by Court

07/10/2012 PETITION TO CONFIRM, CORRECT OR VACATE CONTRACTUAL ARBITRATION AWARD (ALTERNATIVE DISPUTE RESOLUTION)

07/10/2012 SUMMONS

07/10/2012 Petition
Filed by null

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 02/15/2019 11/27/2018 07/17/2018 01/05/2018 09/13/2017 04/27/2017 12/24/2015

Proceedings Held
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Proceedings Held (Proceeding dates listed in descending order)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
03/01/2018 09/21/2012

12/10/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion for Attorney Fees – Not Held – Rescheduled by Party

11/06/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion for Attorney Fees – Not Held – Rescheduled by Party

09/23/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion for Attorney Fees – Not Held – Rescheduled by Party

08/26/2019 at 1:30 PM in Department 44, Edward B. Moreton, Presiding
Ruling on Submitted Matter

08/23/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion for Attorney Fees – Held – Taken under Submission

08/09/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion for Attorney Fees – Not Held – Rescheduled by Court

07/31/2019 at 1:30 PM in Department 44, Edward B. Moreton, Presiding
Non-Appearance Case Review

05/28/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion to Quash (SERVICE OF THE ?APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION? ISSUED 1/9/19) – Not Held – Taken Off Calendar by Court

03/29/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion for Attorney Fees – Not Held – Taken Off Calendar by Party

03/29/2019 at 08:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Application for Order for Appearance and Examination

03/26/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion to Quash (Service of the Application and Order for Appearance and Examination) – Held – Motion Granted

03/21/2019 at 08:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Ex Parte Application (for order shortening time to hear motion to quash order to appear for examination issued 1/8/19) – Held – Taken under Submission

03/21/2019 at 3:30 PM in Department 44, Edward B. Moreton, Presiding
Ruling on Submitted Matter

03/04/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion – Other (post judgment costs) – Held

02/13/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion – Other (post judgment costs) – Not Held – Continued – Stipulation

01/25/2019 at 08:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Application for Order for Appearance and Examination – Held

08/20/2018 at 09:30 AM in Department 44
Hearing on Motion for Order (Motion for an Order; Court’s ruling and order entered) –

08/20/2018 at 08:30 AM in Department 44
Hearing on Application for Order for Appearance and Examination – Held

07/24/2018 at 09:30 AM in Department 44
Hearing on Motion for Sanctions – Held

07/16/2018 at 08:30 AM in Department 44
Hearing on Application for Order for Appearance and Examination (Judgment Debtor Examination Hrng; Matter continued) –

06/14/2018 at 09:30 AM in Department 44
Hearing on Motion to Quash ((Off Calendar)) –

04/11/2018 at 00:00 AM in Department 44
Non-Appearance Case Review – Held

03/02/2018 at 08:30 AM in Department 44
Ex-Parte Proceedings – Held – Motion Granted

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/01/2018 09/21/2012

03/01/2018 at 08:30 AM in Department 44
Ex-Parte Proceedings (Exparte proceeding; Matter continued) –

01/05/2018 at 08:30 AM in Department 44
Hearing on Application for Order for Appearance and Examination (Judgment Debtor Examination Hrng; Off Calendar) –

12/06/2017 at 09:30 AM in Department 44
Hearing on Application for Order for Appearance and Examination (Judgment Debtor Examination Hrng; Matter continued) –

12/04/2017 at 08:30 AM in Department 44
Non-Appearance Case Review – Held – Motion Granted

11/27/2017 at 09:15 AM in Department 44
Hearing on Motion for Reconsideration – Held – Taken under Submission

11/06/2017 at 09:15 AM in Department 44
Hearing on Motion for Reconsideration (Motion for Reconsideration; Continued by Court) –

09/29/2017 at 00:00 AM in Department 44
Non-Appearance Case Review (Non-Appearance (Case Review); Denied) –

09/19/2017 at 09:15 AM in Department 44
Hearing on Motion for Order – Held – Taken under Submission

07/06/2017 at 09:15 AM in Department 44
Hearing on Motion to Strike ((Granted in Part)) –

12/30/2016 at 09:15 AM in Department 44
(Order to Show Cause; Discharged) –

11/21/2016 at 12:00 PM in Department 44
Court Order (Court Order; Matter continued) –

06/10/2016 at 09:15 AM in Department 44
Unknown Event Type – Held

04/21/2016 at 09:15 AM in Department 44
Hearing on Motion for Leave to Amend ((Matter continued)) –

02/05/2016 at 09:15 AM in Department 44
Hearing on Motion for Leave to Amend ((Off Calendar)) –

07/14/2014 at 1:30 PM in Department 44
Hearing on Motion for Leave to Amend ((Denied without prejudice)) –

07/01/2014 at 09:15 AM in Department 44
Hearing on Motion for Leave to Amend ((Matter continued)) –

03/22/2013 at 08:30 AM in Department 57
Status Conference – Held

03/01/2013 at 08:31 AM in Department 57
Unknown Event Type – Held – Motion Granted

01/31/2013 at 08:30 AM in Department 57
Case Management Conference (Conference-Case Management; Off Calendar) –

10/22/2012 at 08:30 AM in Department 57
(Order to Show Cause; OSC Discharged) –

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/01/2018 09/21/2012

09/21/2012 at 08:30 AM in Department 57
Non-Appearance Case Review

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/01/2018 09/21/2012

Register Of Actions
Case Information | Register Of Actions | FUTURE HEARINGS | PARTY INFORMATION | Documents Filed | Proceedings Held

Register of Actions (Listed in descending order)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
03/19/2019 01/07/2019 08/10/2018 03/01/2018 10/06/2017 06/21/2017 04/04/2016 09/21/2012

12/10/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion for Attorney Fees – Not Held – Rescheduled by Party

11/06/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion for Attorney Fees – Not Held – Rescheduled by Party

09/23/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion for Attorney Fees – Not Held – Rescheduled by Party

09/13/2019 Acknowledgment of Satisfaction of Judgment
Filed by Eric A. Mitchell (Defendant)

08/30/2019 Notice (of Entry of Minute Order)
Filed by Eric A. Mitchell (Defendant)

08/30/2019 Notice (of Entry of Signed Order)
Filed by Eric A. Mitchell (Defendant)

08/26/2019 at 1:30 PM in Department 44, Edward B. Moreton, Presiding
Ruling on Submitted Matter

08/26/2019 Minute Order ( (Ruling on Submitted Matter RE Motion for Attorney Fees))
Filed by Clerk

08/26/2019 Certificate of Mailing for ((Ruling on Submitted Matter RE Motion for Attorney Fees) of 08/26/2019)
Filed by Clerk

08/26/2019 Order (Proposed order granting fee motion)
Filed by Eric A. Mitchell (Defendant)

08/23/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion for Attorney Fees – Held – Taken under Submission

08/23/2019 Minute Order ( (Hearing on Motion for Attorney Fees))
Filed by Clerk

08/23/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore (Mary R. Rickey)
Filed by Writers Guild of America, West Inc. (Plaintiff)

08/20/2019 Notice (of Telephonic Appearance)
Filed by Eric A. Mitchell (Defendant)

08/09/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion for Attorney Fees – Not Held – Rescheduled by Court

08/01/2019 Notice (of entry of July 31, 2019 order)
Filed by Eric A. Mitchell (Defendant)

07/31/2019 at 1:30 PM in Department 44, Edward B. Moreton, Presiding
Non-Appearance Case Review

07/31/2019 Minute Order ( (RESCHEDULE HEARING ON MOTION FOR ATTORNEY’S FEES))
Filed by Clerk

07/31/2019 Certificate of Mailing for ((RESCHEDULE HEARING ON MOTION FOR ATTORNEY’S FEES) of 07/31/2019)
Filed by Clerk

07/29/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

07/29/2019 Opposition (to Motion for Attorney’s Fees)
Filed by James Dalessandro (Appellant)

07/29/2019 Reply (in Support of Mitchell’s Motion for Attorney’s Fees)
Filed by Eric A. Mitchell (Defendant)

07/15/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

07/15/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

07/12/2019 Motion for Attorney Fees (of $12,500)
Filed by Eric A. Mitchell (Defendant)

07/12/2019 Request for Judicial Notice
Filed by Eric A. Mitchell (Defendant)

06/05/2019 Appeal – Remittitur – Appeal Dismissed (B289365)
Filed by Clerk

05/28/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion to Quash (SERVICE OF THE ?APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION? ISSUED 1/9/19) – Not Held – Taken Off Calendar by Court

05/28/2019 Minute Order ( (Hearing on Motion to Quash SERVICE OF THE ?APPLICATION AND OR…))
Filed by Clerk

03/29/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion for Attorney Fees – Not Held – Taken Off Calendar by Party

03/29/2019 at 08:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Application for Order for Appearance and Examination

03/27/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/27/2019 Notice (of Entry of Judgment or Order (March 26, 2019))
Filed by Eric A. Mitchell (Defendant)

03/27/2019 Notice (of Consent for Service on Judgment Debtor’s Attorney (CCP 684.020))
Filed by Eric A. Mitchell (Defendant)

03/26/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion to Quash (Service of the Application and Order for Appearance and Examination) – Held – Motion Granted

03/26/2019 Minute Order ( (Hearing on Motion to Quash Service of the Application and Ord…))
Filed by Clerk

03/21/2019 at 08:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Ex Parte Application (for order shortening time to hear motion to quash order to appear for examination issued 1/8/19) – Held – Taken under Submission

03/21/2019 at 3:30 PM in Department 44, Edward B. Moreton, Presiding
Ruling on Submitted Matter

03/21/2019 Minute Order ( (Ruling on Submitted Matter RE ORDER GRANTING EX PARTE APPLICA…))
Filed by Clerk

03/21/2019 Order (Order Granting Ex Parte Application for Order Shortening Time to Hear Motion to Quash)
Filed by Eric A. Mitchell (Defendant)

03/21/2019 Proof of Service by Mail
Filed by Eric A. Mitchell (Defendant)

03/21/2019 Acknowledgment of Satisfaction of Judgment
Filed by Eric A. Mitchell (Defendant)

03/21/2019 Minute Order ( (Hearing on Ex Parte Application for order shortening time to …))
Filed by Clerk

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/19/2019 01/07/2019 08/10/2018 03/01/2018 10/06/2017 06/21/2017 04/04/2016 09/21/2012

03/19/2019 Ex Parte Application (for order shortening time to hear motion to quash order to appear for examination issued 1/8/19)
Filed by Eric A. Mitchell (Defendant)

03/19/2019 Memorandum of Points & Authorities
Filed by James Dalessandro (Appellant)

03/19/2019 Reply ( in Support of Ex Parte Application)
Filed by Eric A. Mitchell (Defendant)

03/19/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/19/2019 Memorandum of Points & Authorities
Filed by James Dalessandro (Appellant)

03/18/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Reply (in Support of Motion to Quash)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Request (for Judicial Notice)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Substitution of Attorney
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Motion to Quash (Service of the “Application and Order for Appearance and Examination” Issued 01/09/2019)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Notice (of Withdrawal of Motion)
Filed by James Dalessandro (Appellant)

03/18/2019 Memorandum of Points & Authorities
Filed by James Dalessandro (Appellant)

03/18/2019 Opposition (to Attorney Fee Motion set for 3/29/19)
Filed by Eric A. Mitchell (Defendant)

03/18/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

03/07/2019 Proof of Service (not Summons and Complaint)
Filed by James Dalessandro (Appellant)

03/07/2019 Substitution of Attorney
Filed by Eric A. Mitchell (Defendant)

03/07/2019 Motion for Attorney Fees
Filed by James Dalessandro (Appellant)

03/04/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion – Other (post judgment costs) – Held

03/04/2019 Minute Order ( (Hearing on Motion – Other post judgment costs))
Filed by Clerk

02/20/2019 Appeal Record Delivered
Filed by Clerk

02/15/2019 Notice of Limited Scope Representation
Filed by Eric A. Mitchell (Defendant)

02/13/2019 at 09:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Motion – Other (post judgment costs) – Not Held – Continued – Stipulation

02/13/2019 Minute Order ( (Hearing on Motion – Other post judgment costs))
Filed by Clerk

02/13/2019 Notice (OF CONTINUANCE)
Filed by Eric A. Mitchell (Defendant)

02/13/2019 Appeal – Ntc Designating Record of Appeal APP-003/010/103
Filed by James Dalessandro (Appellant)

02/08/2019 Notice of Limited Scope Representation
Filed by David Joshua Staub, Esq. (Attorney)

02/08/2019 Notice of Limited Scope Representation
Filed by Eric A. Mitchell (Defendant)

02/07/2019 Memorandum of Points & Authorities ((Supplemental))
Filed by James Dalessandro (Appellant)

02/05/2019 Appellate Order Extension of Time (Order granting appellant 15 days to file amended designation on appeal filed 10/25/18.)
Filed by Clerk

02/04/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

02/04/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

02/04/2019 Request for Judicial Notice
Filed by Eric A. Mitchell (Defendant)

02/04/2019 Reply (Reply for Motion for Costs set for 2/13/19)
Filed by Eric A. Mitchell (Defendant)

01/30/2019 Memorandum of Points & Authorities
Filed by James Dalessandro (Appellant)

01/25/2019 at 08:30 AM in Department 44, Edward B. Moreton, Presiding
Hearing on Application for Order for Appearance and Examination – Held

01/25/2019 Acknowledgment of Satisfaction of Judgment
Filed by Eric A. Mitchell (Defendant)

01/25/2019 Minute Order ( (Hearing on Application for Order for Appearance and Examinati…))
Filed by Clerk

01/24/2019 Declaration (in Opposition to Judgment Debtor Examination)
Filed by James Dalessandro (Appellant)

01/17/2019 Notice of Change of Address or Other Contact Information
Filed by Eric A. Mitchell (Defendant)

01/17/2019 Acknowledgment of Satisfaction of Judgment
Filed by James Dalessandro (Appellant)

01/17/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

01/17/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

01/15/2019 Appeal – Reporter Appeal Transcript Process Fee Paid
Filed by James Dalessandro (Appellant); James Dalessandro (Appellant)

01/11/2019 Notice of Rejection – Post Judgment
Filed by Clerk

01/10/2019 Appeal – Ntc Designating Record of Appeal APP-003/010/103
Filed by James Dalessandro (Appellant)

01/10/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

01/10/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

01/09/2019 Application and Order for Appearance and Examination
Filed by James Dalessandro (Appellant)

01/08/2019 Notice (of Errata re ?NOTICE OF ERRATA REGARDING HIS ?MOTION AND MOTION TO RECOVER POSTJUDGMENT ENFORCEMENT COSTS OF $4,979.15? SIGNED 1/1/19)
Filed by Eric A. Mitchell (Defendant)

01/08/2019 Notice of Limited Scope Representation
Filed by David Joshua Staub, Esq. (Attorney)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/19/2019 01/07/2019 08/10/2018 03/01/2018 10/06/2017 06/21/2017 04/04/2016 09/21/2012

01/07/2019 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

01/02/2019 Motion for Order (recover post judgment costs)
Filed by Eric A. Mitchell (Defendant)

12/18/2018 Appellate Order Dismissing Appeal (ORDER DISMISSING APPEAL FILED 10/25/18)
Filed by Clerk

12/13/2018 Clerk’s Notice of Non-Compliance of Default on Appeal
Filed by Clerk

11/28/2018 Abstract of Judgment – Civil and Small Claims
Filed by Clerk

11/27/2018 Proof of Personal Service
Filed by Eric A. Mitchell (Defendant)

11/20/2018 Notice of Default
Filed by Clerk

11/16/2018 Proof of Service (not Summons and Complaint)
Filed by Writers Guild of America, West Inc. (Plaintiff)

11/08/2018 Notice of Rejection – Post Judgment
Filed by Clerk

10/26/2018 Appeal – Notice of Filing of Notice of Appeal
Filed by Clerk

10/25/2018 Appeal – Notice of Appeal/Cross Appeal Filed (with proof of service)
Filed by James Dalessandro (Appellant)

10/11/2018 Application and Order for Appearance and Examination
Filed by Eric A. Mitchell (Defendant)

10/10/2018 Notice of Rejection – Post Judgment
Filed by Clerk

10/09/2018 Notice of Entry of Judgment or Order

10/09/2018 Notice of Entry of Judgment or Order

10/09/2018 Notice of Entry of Judgment or Order

09/25/2018 ORDER DENYING “NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING RESPONSES TO DEMAND FOR IDENTIFICATION, PRODUCTION AND COPYING OF DOCUMENTS AND IMPOSING MONETARY SANCTIONS” SIGNED 4/20/ 18

09/25/2018 Order
Filed by Debtor

09/24/2018 Proof of Service

09/24/2018 STATEMENT PURSUANT TO CALIFORNIA RULES OF COURT, RULE 3. 1312 SUBD. (B)

09/13/2018 Proof of Service

09/13/2018 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

08/20/2018 at 09:30 AM in Department 44
Hearing on Motion for Order (Motion for an Order; Court’s ruling and order entered) –

08/20/2018 at 08:30 AM in Department 44
Hearing on Application for Order for Appearance and Examination – Held

08/20/2018 Minute order entered: 2018-08-20 00:00:00
Filed by Clerk

08/20/2018 Minute order entered: 2018-08-20 00:00:00
Filed by Clerk

08/20/2018 NOTICE OF LIMITED SCOPE REPRESENTATION

08/20/2018 Minute Order

08/20/2018 STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER

08/20/2018 REQUEST FOR JUDICIAL NOTICE

08/20/2018 Minute Order

08/20/2018 Notice
Filed by Eric A. Mitchell (Defendant)

08/20/2018 Request
Filed by Petitioner

08/16/2018 SUBSTITUTION OF ATTORNEY

08/16/2018 Substitution of Attorney
Filed by Debtor

08/14/2018 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER COMPELLING RESPONSES TO DEMAND FOR IDENTIFICATION, PRODUCTION AND COPYING OF DOCUMENTS AND IMPOSING MONETARY SANCTIONS; SUPPORTING DECLARATION OF PAUL S. LEVINE, ESQ.

08/14/2018 Reply/Response
Filed by Writers Guild of America, West Inc. (Plaintiff)

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/19/2019 01/07/2019 08/10/2018 03/01/2018 10/06/2017 06/21/2017 04/04/2016 09/21/2012

08/10/2018 Substitution of Attorney
Filed by Debtor

08/10/2018 SUBSTITUTION OF ATTORNEY

08/07/2018 ERIC A. MITCHELL’S OPPOSITION TO NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING RESPONSES TO DEMAND FOR IDENTIFICATION, PRODUCTION AND COPYING OF DOCUMENTS AND IMPOSING MONETARY SANCTIONS SIGNED 4/20/ 18 ; DECLARATION OF D. JOSHUA STAUB

08/07/2018 Opposition Document
Filed by Creditor

07/24/2018 at 09:30 AM in Department 44
Hearing on Motion for Sanctions – Held

07/24/2018 Minute Order

07/24/2018 Minute order entered: 2018-07-24 00:00:00
Filed by Clerk

07/23/2018 Reply/Response
Filed by Petitioner

07/23/2018 JAMES DALESSANDRO’S RESPONSES TO EVIDENTIARY OBJECTION TO DECLARATION OF PAUL S. LEVINE

07/23/2018 Declaration
Filed by Petitioner

07/23/2018 Proof of Service (not Summons and Complaint)
Filed by Plaintiff/Petitioner

07/23/2018 DECLARATION OF PAUL S. LEVINE IN SUPPORT OF AWARD OF ATTORNEY’S FEES ON RESPONDEN’S MOTION FOR SANCTIONS

07/23/2018 Proof of Service

07/19/2018 NOTICE OF RULING ON FAILURE TO APPEAR FOR JUDGMENT DEBTOR EXAMINATION

07/19/2018 Notice of Ruling
Filed by Writers Guild of America, West Inc. (Plaintiff)

07/17/2018 EVIDENTIARY OBJECTION TO DECLARATION OF PAUL S. LEVINE SIGNED 7/11/18

07/17/2018 Objection Document
Filed by Debtor

07/17/2018 Reply/Response
Filed by Debtor

07/17/2018 ERIC A. MITCHELL’S REPLY IN SUPPORT OF HIS NOTICE OF MOTION AND MOTION FOR SANCTIONS OF $11,000 AGAINST PAUL SAMUEL LEVINE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF D. JOSHUA STAUB

07/16/2018 at 08:30 AM in Department 44
Hearing on Application for Order for Appearance and Examination (Judgment Debtor Examination Hrng; Matter continued) –

07/16/2018 Minute order entered: 2018-07-16 00:00:00
Filed by Clerk

07/16/2018 ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

07/16/2018 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Plaintiff/Petitioner

07/16/2018 Minute Order

07/12/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR SANCTIONS OF $11,000 AGAINST PAUL SAMUEL LEVINE; DECLARATION OF PAUL S. LEVINE

07/12/2018 Points and Authorities
Filed by Petitioner

07/05/2018 Proof of Service (not Summons and Complaint)
Filed by Petitioner

06/20/2018 Ntc to Reptr/Mon to Prep Transcrpt
Filed by Clerk

06/20/2018 NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL (UNLIMITED CIVIL)

06/18/2018 Notice of Motion
Filed by Debtor

06/18/2018 ERIC A. MITCHELL S NOTICE OF MOTION AND MOTION FOR SANCTIONS OF $11,000 AGAINST PAUL SAMUEL LEVINE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF D. JOSHUA STAUB

06/14/2018 at 09:30 AM in Department 44
Hearing on Motion to Quash ((Off Calendar)) –

06/14/2018 Minute order entered: 2018-06-14 00:00:00
Filed by Clerk

05/14/2018 Notice
Filed by Clerk

05/14/2018 NOTICE OF DEFAULT

05/02/2018 APPELLANT’S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE)

05/02/2018 Designation of Record on Appeal
Filed by James Dalessandro (Appellant)

05/01/2018 APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION (ATTACHMENT – ENFORCEMENT OF JUDGMENT)

05/01/2018 Application and Order for Appearance and Examination
Filed by Plaintiff/Petitioner

04/26/2018 Motion for an Order
Filed by Petitioner

04/26/2018 NOTICE OF MOTION AND MOTION FOR ORDER COMPELLING RESPONSES TO DEMAND FOR IDENTIFICATION, PRODUCTION AND COPYING OF DOCUMENTS AND IMPOSING MONETARY SANCTIONS; ETC

04/12/2018 NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

04/12/2018 Ntc to Attorney re Notice of Appeal
Filed by Clerk

04/11/2018 at 00:00 AM in Department 44
Non-Appearance Case Review – Held

04/11/2018 Notice of Appeal
Filed by James Dalessandro (Appellant)

04/11/2018 Minute Order

04/11/2018 NOTICE OF APPEAL

04/11/2018 Minute order entered: 2018-04-11 00:00:00
Filed by Clerk

03/13/2018 NOTICE OF ENTRY OF JUDGMENT OR ORDER

03/13/2018 Notice of Entry of Judgment
Filed by Debtor

03/13/2018 NOTICE OF ENTRY OF JUDGMENT OR ORDER

03/02/2018 at 08:30 AM in Department 44
Ex-Parte Proceedings – Held – Motion Granted

03/02/2018 Proof of Service (not Summons and Complaint)
Filed by Defendant/Respondent

03/02/2018 Minute order entered: 2018-03-02 00:00:00
Filed by Clerk

03/02/2018 Minute Order

03/02/2018 Proof of Service

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/19/2019 01/07/2019 08/10/2018 03/01/2018 10/06/2017 06/21/2017 04/04/2016 09/21/2012

03/01/2018 at 08:30 AM in Department 44
Ex-Parte Proceedings (Exparte proceeding; Matter continued) –

03/01/2018 Minute Order

03/01/2018 Ex-Parte Application
Filed by Debtor

03/01/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION TO SHORTEN TIME TO NEAR MOTION TO QUASH SERVICE OF ORDER TO APPEAR FOR EXAMINATION; DECLLARATION OF AND PAUL S. LEVINE IN SUPPORT THEREOF

03/01/2018 ERIC A. MITCHELL’S EX PARTE APPLICATION FOR AN ORDER SHORTENING THE TIME TO HEAR HIS “NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF ORDER TO APPEAR FOR EXAMINATION AND CONTINUING THE 3/2/18 DEBTOR EXAMINATION UNTIL AFTER THE COURT RULES ON THE MOTION TO

03/01/2018 Minute order entered: 2018-03-01 00:00:00
Filed by Clerk

03/01/2018 Minute Order

02/28/2018 NOTICE OF ENTRY OF JUDGMENT OR ORDER

02/28/2018 Notice of Entry of Judgment
Filed by Debtor

02/22/2018 PROOF OF SERVICE BY FIRST-CLASS MAIL

02/22/2018 PROOF OF PERSONAL SERVICE

02/22/2018 ERIC A. MITCHELL’S NOTICE OF MOTION AND MOTION TO QUASH SERVICE OF ORDER TO APPEAR FOR EXAMINATION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF D. JOSHUA STAUB

02/22/2018 Motion to Quash
Filed by Debtor

02/14/2018 Ntc to Reptr/Mon to Prep Transcrpt
Filed by Clerk

02/14/2018 NOTICE TO REPORTER TO PREPARE TRANSCRIPT ON APPEAL(UNLIMITED CIVIL)

01/08/2018 ACKNOWLEDGEMENT OF SATISFACTION OF JUDGEMENT

01/08/2018 APPELLANT’S NOTICE DESIGNATING RECORD ON APPEAL

01/08/2018 Notice of Designation of Record
Filed by Debtor

01/05/2018 at 08:30 AM in Department 44
Hearing on Application for Order for Appearance and Examination (Judgment Debtor Examination Hrng; Off Calendar) –

01/05/2018 Minute order entered: 2018-01-05 00:00:00
Filed by Clerk

01/05/2018 Minute Order

12/28/2017 NOTICE OF DEFAULT (UNLIMITED CIVIL APPEALS)

12/28/2017 Notice
Filed by Clerk

12/26/2017 PROOF OF SERVICE CIVIL

12/26/2017 NOTIDE OF CANCELLATION OF EXAMINATION OF JUDGMENT DEBTOR PAUL LEVINE

12/26/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

12/26/2017 PROOF OF SERVICE CIVIL

12/26/2017 Satisfaction of Judgment
Filed by Creditor

12/26/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

12/26/2017 ACKNOWLEDGEMENT OF SATISFACTION OF JUDGEMENT

12/26/2017 Notice
Filed by Creditor

12/22/2017 PROOF OF SERVICE CIVIL

12/22/2017 PROOF OF SERVICE CIVIL

12/22/2017 Notice of Entry of Judgment
Filed by Debtor

12/22/2017 Satisfaction of Judgment
Filed by Creditor

12/22/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

12/22/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

12/22/2017 NOTICE OF ENTRY OF JUDGMENT OR ORDER

12/22/2017 ACKNOWLEDGEMENT OF SATISFACTION OF JUDGEMENT

12/11/2017 NOTICE OF CONTINUANCE OF EXAMINATION OF JUDGMENT DEBTOR PAUL LEVINE

12/11/2017 Notice Re: Continuance of Hearing and Order
Filed by Creditor

12/06/2017 at 09:30 AM in Department 44
Hearing on Application for Order for Appearance and Examination (Judgment Debtor Examination Hrng; Matter continued) –

12/06/2017 Minute order entered: 2017-12-06 00:00:00
Filed by Clerk

12/06/2017 Minute Order

12/06/2017 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Court

12/04/2017 at 08:30 AM in Department 44
Non-Appearance Case Review – Held – Motion Granted

12/04/2017 Minute Order

12/04/2017 Minute Order

12/04/2017 Minute order entered: 2017-12-04 00:00:00
Filed by Clerk

11/28/2017 Ntc to Attorney re Notice of Appeal
Filed by Clerk

11/28/2017 NOTICE OF FILING OF NOTICE OF APPEAL (UNLIMITED JURISDICTION)

11/27/2017 at 09:15 AM in Department 44
Hearing on Motion for Reconsideration – Held – Taken under Submission

11/27/2017 Notice of Appeal
Filed by Eric A. Mitchell (Defendant)

11/27/2017 Notice
Filed by Petitioner

11/27/2017 Order
Filed by Debtor

11/27/2017 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Court

11/27/2017 ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

11/27/2017 Minute Order

11/27/2017 NOTICE OF ENTRY OF JUDGMENT OR ORDER

11/27/2017 Minute order entered: 2017-11-27 00:00:00
Filed by Clerk

11/27/2017 NOTICE OF APPEAL

11/17/2017 Writ issued
Filed by Assignee

11/17/2017 Abstract of Judgment – Civil and Small Claims
Filed by Assignee

11/17/2017 Cost Bill After Judgment
Filed by Plaintiff/Petitioner

11/06/2017 at 09:15 AM in Department 44
Hearing on Motion for Reconsideration (Motion for Reconsideration; Continued by Court) –

11/06/2017 Minute order entered: 2017-11-06 00:00:00
Filed by Clerk

11/01/2017 NOTICE OF CONTINUANCE OF MOTION FOR ATTORNEY S FEES AND COSTS INCURRED IN OPPOSING MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS PROCEEDING

11/01/2017 NOTICE OF CONTINUANCE OF MOTION TO RECONSIDER ORDERS GRANTING MOTION TO STRIKE AND OR TAX COSTS AND IMPOSING SANCTIONS

11/01/2017 Notice Re: Continuance of Hearing and Order
Filed by Heather L. Pearson (Attorney)

11/01/2017 Notice Re: Continuance of Hearing and Order
Filed by Writers Guild of America, West Inc. (Plaintiff)

10/30/2017 Reply/Response
Filed by Writers Guild of America, West Inc. (Plaintiff)

10/30/2017 MEMO OF COSTS AFTER JUDGEMENT, ACKNOWLEDGEMENT OF CREDIT AND DECLARATION OF ACCRUED INTEREST

10/30/2017 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEY’S FEES AND COSTS INCURRED IN OPPOSING MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS PROCEEDING; ETC.

10/25/2017 Declaration
Filed by Debtor

10/25/2017 Request for Judicial Notice
Filed by Debtor

10/25/2017 Objection Document
Filed by Debtor

10/25/2017 EVIDENTIARY OBJECTION TO “DECLARATION OF PAUL S. LEVINE” SIGNED 7/17/17

10/25/2017 REQUEST FOR JUDICIAL NOTICE

10/25/2017 DECLARATION OF D. JOSHUA STAUB

10/19/2017 EVIDENTIARY OBJECTION TO “DECLARATION OF PAUL S. LEVINE” SIGNED 7/17/17

10/19/2017 Opposition Document
Filed by Debtor

10/19/2017 Request for Judicial Notice
Filed by Debtor

10/19/2017 Declaration
Filed by Debtor

10/19/2017 Opposition Document
Filed by Debtor

10/19/2017 OPPOSITION TO “NOTICE OF MOTION AND MOTION TO RECONSIDER ORDERS GRANTING MOTION TO STRIKE AND OR TAX COSTS AND IMPOSING SANCTIONS” SIGNED 7/7/17; ETC.

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/19/2019 01/07/2019 08/10/2018 03/01/2018 10/06/2017 06/21/2017 04/04/2016 09/21/2012

10/06/2017 Abstract of Judgment – Civil and Small Claims
Filed by Creditor

09/29/2017 at 00:00 AM in Department 44
Non-Appearance Case Review (Non-Appearance (Case Review); Denied) –

09/29/2017 Writ-Other Issued
Filed by Creditor

09/29/2017 Minute Order

09/29/2017 Minute order entered: 2017-09-29 00:00:00
Filed by Clerk

09/29/2017 Abstract of Judgment – Civil and Small Claims
Filed by Creditor

09/25/2017 NOTICE OF CONTINUANCE OF JUDGMENT DEBTOR EXAMINATION

09/25/2017 Notice Re: Continuance of Hearing and Order
Filed by Writers Guild of America, West Inc. (Plaintiff)

09/19/2017 at 09:15 AM in Department 44
Hearing on Motion for Order – Held – Taken under Submission

09/19/2017 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Court

09/19/2017 Minute Order

09/19/2017 Minute order entered: 2017-09-19 00:00:00
Filed by Clerk

09/19/2017 ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

09/14/2017 Objection Document
Filed by Debtor

09/14/2017 EVIDENTIARY OBJECTION TO ‘SUPPLEMENTAL DECLARATION OF PAUL S. LEVINE IN OPPOSITION TO SECOND MOTION TO VACATE AND SET ASIDE THE JUDGMENT AS VOID AND DISMISS THIS PROCEEDING OR IN THE ALTERNATIVE SET ASIDE THE JUDGMENT AS TO ERIC MITCHELL’ SIGNED 9/9/17

09/13/2017 Writ issued
Filed by Creditor

09/13/2017 Abstract of Judgment – Civil and Small Claims
Filed by Creditor

09/11/2017 Points and Authorities
Filed by Writers Guild of America, West Inc. (Plaintiff)

09/11/2017 Judgment
Filed by Assignee

09/11/2017 SECOND SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO RECONSIDER ORDERS GRANTING MOTION TO STRIKE AND OR TAX COSTS AND IMPOSING SANCTIONS [CODE OF CIVIL PROCEDURE 1008(A)]

09/11/2017 AMENDED JUDGMENT

09/11/2017 SUPPLEMENTAL DECLARATION OF PAUL S. LEVINE IN OPPOSITION TO SECOND MOTION TO VACATE AND SET ASIDE THE JUDGMENT AS VOID AND DISMISS THIS PROCEEDING OR IN THE ALTERNATIVE SET ASIDE THE JUDGMENT AS TO ERIC MITCHELL

09/11/2017 PROOF OF SERVICE BY FIRST-CLASS MAIL CIVIL

09/11/2017 Declaration
Filed by Writers Guild of America, West Inc. (Plaintiff)

09/08/2017 REPLY IN SUPPORT OF SECOND NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE THE JUDGMENT AS VOID AND DISMISS THIS PROCEEDING OR IN THE ALTERNATIVE SET ASIDE THE JUDGMENT AS TO ERIC MITCHELL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF D. JOSHU

09/08/2017 Reply/Response
Filed by Debtor

09/08/2017 Memorandum of Costs
Filed by Eric A. Mitchell (Defendant)

09/08/2017 Reply/Response
Filed by Eric A. Mitchell (Defendant)

09/08/2017 Proof of Service (not Summons and Complaint)
Filed by Eric A. Mitchell (Defendant)

09/08/2017 Proof of Service (not Summons and Complaint)
Filed by Creditor

09/08/2017 Proof of Service Personal Service

09/08/2017 REPLY IN SUPPORT OF SECOND NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE THE JUDGMENT AS VOID AND DISMISS THIS PROCEEDING OR IN THE ALTERNATIVE SET ASIDE THE JUDGMENT AS TO ERIC MITCHELL; ETC.

09/08/2017 MEMO OF COSTS AFTER JUDGEMENT, ACKNOWLEDGEMENT OF CREDIT AND DECLARATION OF ACCRUED INTEREST

09/08/2017 Proof of Service

09/05/2017 Points and Authorities
Filed by Writers Guild of America, West Inc. (Plaintiff)

09/05/2017 Declaration
Filed by Creditor

09/05/2017 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO SECOND MOTION TO VACATE AND SET ASIDE THE JUDGMENT AS VOID AND DISMISS THIS PROCEEDING OR IN THE ALTERNATIVE SET ASIDE THE JUDGMENT AS TO ERIC MITCHELL; DECLARATION OF AND PAUL S. LEVINE IN SUPPORT THE

09/05/2017 DECLARATION FOR INTEREST

09/01/2017 Proof of Service by Mail
Filed by Writers Guild of America, West Inc. (Plaintiff)

08/30/2017 Application and Order for Appearance and Examination
Filed by Plaintiff/Petitioner

08/30/2017 APPLICATION AND ORDER FOR APPEARANCE AND EXAMINATION – ENFORCEMENT OF JUDGMENT- JUDGMENT DEBTOR

08/28/2017 Writ-Other Issued
Filed by Clerk

08/28/2017 Proof of Service

08/28/2017 Supplemental Declaration
Filed by Debtor

08/28/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

08/28/2017 SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE

08/25/2017 Abstract of Judgment – Civil and Small Claims
Filed by Creditor

08/23/2017 SECOND NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE THE JUDGMENT AS VOID AND DISMISS THIS PROCEEDING OR IN THE ALTERNATIVE SET ASIDE THE JUDGMENT AS TO ERIC MITCHELL; ETC.

08/23/2017 REQUEST FOR JUDICIAL NOTICE

08/23/2017 NOTICE OF CONTINUANCE OF MOTION FOR ATTORNEY’S FEES AND COSTS INCURRED IN OPPOSING MOTION TO VACATE AND ETC

08/23/2017 SUPPLEMENTAL MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO RECONSIDER ORDERS GRANTING MOTION TO STRIKE AND ETC

08/23/2017 Notice Re: Continuance of Hearing and Order
Filed by Writers Guild of America, West Inc. (Plaintiff)

08/23/2017 NOTICE OF CONTINUANCE OF MOTION TO RECONSIDER ORDERS GRANTING MOTION TO STRIKE AND OR TAX COSTS AND IMPOSING SANCTIONS

08/23/2017 Request for Judicial Notice
Filed by Creditor

08/23/2017 Motion for an Order
Filed by Creditor

08/23/2017 Notice Re: Continuance of Hearing and Order
Filed by Writers Guild of America, West Inc. (Plaintiff)

08/23/2017 Supplemental Declaration
Filed by Writers Guild of America, West Inc. (Plaintiff)

08/23/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

08/23/2017 Proof of Service

07/31/2017 ACKNOWLEDGEMENT OF SATISFACTION OF JUDGEMENT

07/31/2017 Proof of Service

07/31/2017 Proof of Service

07/18/2017 Proof of Service by 1st Class Mail

07/18/2017 Notice of Motion
Filed by Plaintiff/Petitioner

07/18/2017 Notice of Motion
Filed by Plaintiff/Petitioner

07/18/2017 Proof of Service (not Summons and Complaint)
Filed by Plaintiff/Petitioner

07/18/2017 NOTICE OF MOTION AND MOTION TO RECONSIDER ORDERS GRANTING MOTION TO STRIKE AND OR TAX COSTS AND IMPOSING SANCTIONS; ETC.

07/18/2017 NOTICE OF ENTRY OF JUDGMENT OR ORDER

07/18/2017 NOTICE OF MOTION AND MOTION FOR ATTORNEY’S FEES AND COSTS INCURRED IN OPPOSING MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS PROCEEDING; ETC.

07/11/2017 NOTICE OF ENTRY OF JUDGMENT OR ORDER

07/11/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

07/11/2017 Notice of Entry of Judgment
Filed by Debtor

07/11/2017 PROOF OF SERVICE BY ELECTRONIC SERVICE

07/06/2017 at 09:15 AM in Department 44
Hearing on Motion to Strike ((Granted in Part)) –

07/06/2017 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Court

07/06/2017 Minute order entered: 2017-07-06 00:00:00
Filed by Clerk

07/06/2017 ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

07/06/2017 Minute Order

06/29/2017 Objection Document
Filed by Debtor

06/29/2017 Objection Document
Filed by Debtor

06/29/2017 EVIDENTIARY OBJECTION TO “MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS PROCEEDING” SIGNED 6/19/17

06/29/2017 EVIDENTIARY OBJECTION TO “DECLARATION OF PAUL S. LEVINE” SIGNED 6/19/17

06/26/2017 Reply to Motion
Filed by Eric A. Mitchell (Defendant)

06/26/2017 Reply to Motion
Filed by Eric A. Mitchell (Defendant)

06/26/2017 Motion to Strike
Filed by Defendant/Respondent

06/26/2017 REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS THIS PROCEEDING; MEMORANDUM OF POINTS AND AUTHORITIES

06/26/2017 REPLY IN SUPPORT OF NOTICE OF MOTION AND MOTION TO STRIKE AND OR TAX COSTS CLAIMED IN THE “MEMORANDUM OF COSTS AFTER JUDGMENT, ACKNOWLEDGMENT OF CREDIT, AND DECLARATION OF ACCRUED INTEREST” EXECUTED ON 4/8/17 & REQUEST FOR AN ORDER REQUIRING PAUL S. LEVIN

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/19/2019 01/07/2019 08/10/2018 03/01/2018 10/06/2017 06/21/2017 04/04/2016 09/21/2012

06/21/2017 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS PROCEEDING

06/21/2017 Points and Authorities
Filed by Plaintiff/Petitioner

06/21/2017 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO STRIKE AND OR TAX COSTS; DECLARATION OF PAUL S. LEVINE

06/21/2017 Points and Authorities
Filed by Plaintiff/Petitioner

06/09/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

06/09/2017 PROOF OF SERVICE CIVIL

05/16/2017 Proof of Service (not Summons and Complaint)
Filed by Creditor

05/16/2017 PROOF OF SERVICE BY OVERNIGHT DELIVERY

05/08/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

05/08/2017 NOTICE OF JUDICIAL ASSIGNMENT TO DEPARTMENT 44

05/08/2017 PROOF OF SERVICE-CIVIL

05/08/2017 Notice
Filed by Debtor

05/04/2017 Abstract of Judgment – Civil and Small Claims
Filed by Creditor

05/04/2017 Writ-Other Issued
Filed by Creditor

04/27/2017 REQUEST FOR JUDICIAL NOTICE

04/27/2017 NOTICE OF MOTION AND MOTION TO VACATE AND SET ASIDE VOID JUDGMENT AND DISMISS PROCEEDING;ETC.

04/27/2017 PROOF OF SERVICE BY MAIL

04/27/2017 Request for Judicial Notice
Filed by Debtor

04/27/2017 Notice of Motion
Filed by Debtor

04/27/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

04/25/2017 Proof of Service

04/25/2017 Proof of Service (not Summons and Complaint)
Filed by Debtor

04/24/2017 NOTICE OF MOTION AND MOTION TO STRIKE AND OR TAX COSTS CLAIMED IN THE “MEMORANDUM OF COSTS AFTER JUDGMENT, ACKNOWLEDGMENT OF CREDIT, AND DECLARATION OF ACCRUED INTEREST” EXECUTED ON 4/8/17 & REQUEST FOR AN ORDER REQUIRING PAUL S. LEVINE TO PAY THE REASONA

04/24/2017 Request
Filed by Debtor

04/24/2017 Request for Judicial Notice
Filed by Debtor

04/24/2017 Notice of Motion
Filed by Debtor

04/24/2017 REQUEST FOR JUDICIAL NOTICE

04/24/2017 REQUEST FOR SERVICE ON ATTORNEY FOR JUDGMENT DEBTOR

04/19/2017 Writ-Other Issued
Filed by Creditor

04/19/2017 Abstract of Judgment – Civil and Small Claims
Filed by Creditor

01/27/2017 Writ-Other Issued
Filed by Clerk

01/27/2017 Abstract of Judgment – Civil and Small Claims
Filed by Clerk

01/13/2017 NOTICE OF ENTRY OF JUDGMENT OR ORDER

01/13/2017 Notice of Entry of Judgment
Filed by Plaintiff/Petitioner

12/30/2016 at 09:15 AM in Department 44
(Order to Show Cause; Discharged) –

12/30/2016 Minute order entered: 2016-12-30 00:00:00
Filed by Clerk

12/30/2016 Minute Order

11/21/2016 at 12:00 PM in Department 44
Court Order (Court Order; Matter continued) –

11/21/2016 Minute Order

11/21/2016 DECLARATION OF PAUL S. LEVINE IN SUPPORT OF ENTRY OF AMENDED JUDGMENT

11/21/2016 Minute Order

11/21/2016 Declaration
Filed by Assignee

11/21/2016 Minute order entered: 2016-11-21 00:00:00
Filed by Clerk

08/22/2016 Miscellaneous-Other
Filed by Petitioner

07/05/2016 Order
Filed by Petitioner

07/05/2016 ORDER ON MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AS JUDGMENT DEBTORS

06/27/2016 MEMO COSTS SUMMARY

06/27/2016 Declaration
Filed by Creditor

06/21/2016 PROOF OF SERVICE BY FIRST-CLASS MAIL CIVIL

06/21/2016 DECLARATION OF PAUL S. LEVINE IN SUPPORT OF ENTRY OF ORDER AND AMENDED JUDGMENT (CODE OF CIVIL PROCEDURE 187)

06/21/2016 Proof of Service (not Summons and Complaint)
Filed by Petitioner

06/21/2016 Memo of Costs
Filed by Creditor

06/10/2016 at 09:15 AM in Department 44
Unknown Event Type – Held

06/10/2016 Minute Order

06/10/2016 Minute order entered: 2016-06-10 00:00:00
Filed by Clerk

05/19/2016 PROOF OF SERVICE OF MOTION

05/19/2016 Proof of Service (not Summons and Complaint)
Filed by Petitioner

05/19/2016 PROOF OF SERVICE OF MOTION

05/19/2016 Proof of Service (not Summons and Complaint)
Filed by Petitioner

05/19/2016 PROOF OF SERVICE OF MOTION

05/19/2016 Proof of Service (not Summons and Complaint)
Filed by Petitioner

04/21/2016 at 09:15 AM in Department 44
Hearing on Motion for Leave to Amend ((Matter continued)) –

04/21/2016 Minute order entered: 2016-04-21 00:00:00
Filed by Clerk

04/21/2016 Minute Order

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 03/19/2019 01/07/2019 08/10/2018 03/01/2018 10/06/2017 06/21/2017 04/04/2016 09/21/2012

04/04/2016 Proof of Service

02/18/2016 NOTICE OF HEARING ON MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AS JUDGMENT DEBTORS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

02/18/2016 Notice of Hearing
Filed by Plaintiff/Petitioner

02/05/2016 at 09:15 AM in Department 44
Hearing on Motion for Leave to Amend ((Off Calendar)) –

02/05/2016 Minute Order

02/05/2016 Minute order entered: 2016-02-05 00:00:00
Filed by Clerk

01/19/2016 NOTICE OF TAKING OFF-CALENDAR HEARING ON MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AS JUDGMENT DEBTORS

01/19/2016 Notice
Filed by Petitioner

01/07/2016 PROOF OF SERVICE BY MAIL

01/07/2016 PROOF OF SERVICE

01/07/2016 Proof of Service (not Summons and Complaint)
Filed by Plaintiff/Petitioner

01/07/2016 Proof of Service (not Summons and Complaint)
Filed by Plaintiff/Petitioner

01/07/2016 Declaration
Filed by Plaintiff/Petitioner

01/07/2016 DECLARATION OF DILIGENCE

12/24/2015 Notice of Motion
Filed by Assignee

12/24/2015 NOTICE OF HEARING ON MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AS JUDGMENT DEBTORS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF (CODE OF CIVIL PROCEDURE 187)

07/17/2014 NOTICE OF RULING ON MOTION UI JAMES DALESSANDRO TO AMEND JUDGMENT TO INCLUDE TALC MANAGERS (ALTER EGO) ANI) RELATED COMPANY AS JUDGMENT DEBTORS

07/17/2014 Notice Re: Continuance of Hearing and Order
Filed by Appellant

07/14/2014 at 1:30 PM in Department 44
Hearing on Motion for Leave to Amend ((Denied without prejudice)) –

07/14/2014 Minute Order

07/14/2014 Minute order entered: 2014-07-14 00:00:00
Filed by Clerk

07/14/2014 STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER

07/14/2014 STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER

07/14/2014 Order
Filed by Defendant/Respondent

07/07/2014 DECLARATION OF JAMES J. DALESSANDRO IN SUPPORT OF MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS (CODE OF CIVIL PROCEDURE 187)

07/07/2014 DECLARATION OF JAMES J. DALESSANDRO IN SUPPORT OF MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS

07/07/2014 Declaration
Filed by Petitioner

07/07/2014 Reply/Response
Filed by Petitioner

07/07/2014 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS

07/01/2014 at 09:15 AM in Department 44
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07/01/2014 DECLARATION OF PAUL S. LEVINE IN OPPOSITION TO EX PARTE APPLICATION TO ALLOW LATE FILING OF OPPOSITION BRIEF (CODE OF CIVIL PROCEDURE 187)

07/01/2014 MEMORANDUM OF NON-PARTY MARK MYDEN IN OPPOSITION TO DALESSANDROS MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS (CODE OF CIVIL PROCEDURE 187)

07/01/2014 DECLARATION OF PAUL S. LEVINE IN OPPOSITION TO EX PARTE APPLICATION TO ALLOW LATE FILING OF OPPOSITION BRIEF (CODE OF CIVIL PROCEDURE 187)

07/01/2014 REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS (CODE OF CIVIL PROCEDURE 187)

07/01/2014 Minute order entered: 2014-07-01 00:00:00
Filed by Clerk

07/01/2014 Minute Order

07/01/2014 Ex-Parte Application
Filed by Respondent

07/01/2014 Memorandum – Other
Filed by Respondent

07/01/2014 Opposition Document
Filed by Assignee

07/01/2014 EX PARTE APPLICATION TO ALLOW LATE FILING OF OPPOSITION BRIEF BY NON-PARTY MARK MYDEN; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DAVID A. SHANEYFELT

07/01/2014 EX PARTE APPLICATION TO ALLOW LATE FILING OF OPPOSITION BRIEF BY NON-PARTY MARK MYDEN; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DAVID A. SHANEYFELT (CODE OF CIVIL PROCEDURE 187)

07/01/2014 MEMORANDUM OF NON-PARTY MARK MYDEN IN OPPOSITION TO DALESSANDROS MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND RELATED COMPANY AS JUDGMENT DEBTORS

05/28/2014 Notice of Motion
Filed by Assignee

05/28/2014 NOTICE OF HEARING ON MOTION TO AMEND JUDGMENT TO INCLUDE LLC MANAGERS (ALTER EGO) AND ETC

12/02/2013 Miscellaneous-Other
Filed by Plaintiff/Petitioner

12/02/2013 ACKNOWLEDGEMENT OF ASSIGNMENT OF JUDGMENT

03/22/2013 at 08:30 AM in Department 57
Status Conference – Held

03/22/2013 Minute Order

03/22/2013 Judgment
Filed by Petitioner

03/22/2013 Minute order entered: 2013-03-22 00:00:00
Filed by Clerk

03/22/2013 JUDGMENT

03/08/2013 Notice of Ruling
Filed by Plaintiff/Petitioner

03/08/2013 NOTICE OF RULTNG ON PETITTON TO CONFIRM ARBITRATION AWARD AND HEARING ON JUDGMENT

03/01/2013 at 08:31 AM in Department 57
Unknown Event Type – Held – Motion Granted

03/01/2013 ORDER CONFIRMING ARBITRATION AWARD AND AWARDING ATTORNEY’S FEES AND COSTS TO PETITIONER

03/01/2013 Declaration
Filed by Petitioner

03/01/2013 DECLARATION OF HEATHER PEARSON IN SUPPORT OF INTERESTAND ATTORNEYS FEES

03/01/2013 Minute order entered: 2013-03-01 00:00:00
Filed by Clerk

03/01/2013 MINUTE ORDER

03/01/2013 Attorney Order
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01/31/2013 at 08:30 AM in Department 57
Case Management Conference (Conference-Case Management; Off Calendar) –

01/31/2013 Minute order entered: 2013-01-31 00:00:00
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01/31/2013 Minute Order

01/30/2013 NOTICE OF HEARING ON PETITION TO CONFIRM ARBITRATION

01/30/2013 Notice of Hearing
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12/17/2012 NOTICE OF CASE MANAGEMENT CONFERENCE

12/17/2012 Notice of Case Management Conference
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10/22/2012 at 08:30 AM in Department 57
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10/22/2012 Minute Order

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10/19/2012 PROOF OF SERVICE SUMM AND PETITION

10/19/2012 PROOF OF SERVICE SUMM AND PETITION

10/19/2012 Proof of Service (not Summons and Complaint)
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10/19/2012 PROOF OF SERVICE SUMM AND PETITION

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10/19/2012 PROOF OF SERVICE SUMM AND PETITION

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Filed 12/18/19 P. v. Mims 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.

LAFAYETTE DEVETTECAR MIMS,

Defendant and Appellant.

C085787, C086146

(Super. Ct. Nos. 14F07275, 16FE022584)

Defendant Lafayette Devettecar Mims, charged with felony theft and identity theft/forgery in two cases, was sentenced to a two-year split term under a plea agreement. In the first case, he seeks the redesignation of his felonies as misdemeanors under Penal Code section 1170.18 (subsequent undesignated statutory references are to the Penal Code). In the second case, he seeks reversal of the trial court’s ruling that denied his section 995 motion to dismiss the felony charges and recharge the case as a misdemeanor.

We remand the matter to the trial court for further proceedings.

FACTS AND LEGAL PROCEEDINGS

In case No. 14F07275 (case No. 14F), an amended felony complaint filed on December 18, 2014, charged defendant and a codefendant with multiple counts of theft and identity theft, among other offenses. Defendant pleaded no contest to counts 9 through 12, all alleging unlawful use of personal identification (§ 530.5, subd. (a)), in return for the dismissal of the remaining counts and a grant of formal probation for five years.

In case No. 16FE022584 (case No. 16F), a felony complaint filed on December 2, 2016, charged defendant with identity theft (§ 530.5, subd. (c)(2); count 1), use of false identification to defraud (§ 470b; count 2), and forgery (§ 476; count 3).

On February 16, 2017, a petition to violate defendant’s probation in case No. 14F was filed, alleging defendant’s arrest on the new charges as the violation.

On July 21, 2017, in case No. 14F, defendant petitioned the trial court pursuant to section 1170.18 to redesignate the felonies to which he had pleaded as misdemeanors. The trial court denied the petition, finding that those felonies were not eligible for redesignation.

On June 27, 2017, an amended felony complaint was filed in case No. 16F, adding a new count of violating section 470b (count 4).

On August 24, 2017, in case No. 16F, defendant moved under section 995 to dismiss the alleged counts and to replace them with a single misdemeanor count of “commercial burglary,” i.e., shoplifting (§ 459.5). On October 12, 2017, the trial court denied the motion.

On October 12, 2017, under a plea agreement encompassing both cases, defendant pleaded no contest to count 2 (§ 470b) in case No. 16F and admitted the probation violation in case No. 14F. The court revoked defendant’s probation in case No. 14F and sentenced him to eight months’ imprisonment on count 9, with counts 10 through 12 to run concurrently. In case No. 16F, the court imposed probation, which included 16 months’ imprisonment on count 2 (dismissing the other counts), run consecutive to the sentence in case No. 14F. Defendant’s total term was two years, the first year to be served in custody and the second under mandatory supervision.

DISCUSSION

In defendant’s opening brief, he contended: (1) As to case No. 14F, the matter should be remanded for an evidentiary hearing pursuant to section 1170.18 to determine whether defendant’s convictions qualify for redesignation as misdemeanors. (2) As to case No. 16F, the matter should be reversed because the provisions under which defendant was charged qualify for such redesignation under section 459.5 (shoplifting) or section 490.2 (petty theft).

Respondent Attorney General argued in part that section 1170.18 relief was unavailable to defendant in case No. 14F because he entered his plea after Proposition 47’s passage. In case No. 16F, the Attorney General argued that defendant’s section 490.2 claim is forfeited because he did not raise it on the section 995 motion, and the charging limitation of section 459.5 does not apply to the statutes under which defendant was charged.

Having originally failed to discuss whether Proposition 47 applies to crimes occurring after its enactment, defendant requested and was granted leave to file a supplemental brief that did so. The Attorney General filed a responsive supplemental brief.

Case No. 14F

Proposition 47, which reduced certain drug and theft related offenses from felonies or “wobblers” to misdemeanors, was enacted on November 4, 2014 (as approved by voters Gen. Elec., Nov. 4, 2014, eff. Nov. 5, 2014). (People v. Buycks (2018) 5 Cal.5th 857, 870-871; People v. Martinez (2018) 4 Cal.5th 647, 651.) Section 1170.18, enacted into law by Proposition 47, provides that a defendant “who, on November 5, 2014, was serving a sentence for a conviction . . . of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section (‘this act’) had this act been in effect at the time of the offense,” or “who has completed his or her sentence for a conviction . . . of [such] a felony or felonies,” may petition the trial court to request resentencing in accordance with Proposition 47. (§ 1170.18, subds. (a), (f).)

Here, defendant was not serving a sentence for a conviction of a felony covered by Proposition 47 and had not completed a sentence for such a conviction when case No. 14F was filed. Therefore, as defendant acknowledges in his supplemental brief, he was not eligible to file a petition under section 1170.18 as to that case.

Relying on People v. Gonzales (2017) 2 Cal.5th 858 (Gonzales) and People v. Romanowski (2017) 2 Cal.5th 903 (Romanowski), defendant asserts that this court should “extend or relax the time within which an otherwise qualified petitioner may file.” On this issue, Gonzales and Romanowski do not support him. In both cases, the defendants who filed resentencing petitions had been sentenced and had begun to serve their sentences before the effective date of Proposition 47. (Romanowski, at p. 906; Gonzales, at pp. 862-863 [probation].) Neither decision extends the reach of section 1170.18 to persons in his situation.

Because defendant has not requested any form of relief actually available to him as to case No. 14F, we express no view on whether the statute under which he was convicted in that case is subject to Proposition 47.

Case No. 16F

Background

At the preliminary hearing, defendant argued in reliance on Gonzales, supra, 2 Cal.5th 858, that the acts charged as felonies in counts 1 through 3 — which he called “entry into a commercial establishment with intent to commit identity theft” (count 1), “displaying a fictitious ID card” (count 2), and “passing a fictitious check in order to obtain two pairs of headphones” (count 3) — should have been charged as a single count of misdemeanor shoplifting (§ 459.5), because they all involved “entering a commercial establishment with intent to commit larceny while that establishment [was] open during regular business hours” and the value of the property “taken or intended to be taken” did not exceed $950. After the trial court rejected the argument and held defendant to answer, defendant renewed the argument as a section 995 motion (the 995 motion). (The motion separately argued that count 4 should be stricken for insufficient evidence. That count was dismissed under defendant’s global plea agreement.) Neither at the preliminary hearing nor in the 995 motion did defendant cite section 490.2 (petty theft).

As defendant stated the facts in the 995 motion (an account which the Attorney General does not dispute), employees of a Best Buy store notified the police that defendant came in and tried to purchase headphones worth $518.36 with a prepaid debit card, then with a check. Both were denied. He left the store to get another form of payment, leaving behind the check and an out-of-state driver’s license bearing his photograph and another person’s name. A search of his vehicle disclosed six more checks with that name, and an ID from another state bearing defendant’s photograph with a different person’s name. The checks were purportedly issued by a Missouri bank which turned out not to be located in that state, and the phone number on the checks belonged to another bank. Officers could not find anyone whose identity matched that of any person named on the documents in defendant’s possession.

The People’s opposition to the section 995 motion distinguished Gonzales on several grounds and argued that identity theft offenses fall into a separate category of crime from the offenses discussed in Gonzales.

The trial court issued a written tentative ruling, later confirmed orally, denying the section 995 motion without stating reasons.

Analysis

The Attorney General asserts that defendant’s claim as to section 490.2 is forfeited because he did not raise it on the section 995 motion. We agree.

The question whether any of defendant’s alleged offenses could come within section 490.2 is a mixed question of law and fact, since it involves both statutory construction and applying the facts to the statute as construed. Such issues are generally forfeited on appeal if not raised in the trial court. (See People v. McCullough (2013) 56 Cal.4th 589, 593-599 [issues depending partly on fact-specific determinations].) We see no reason to depart from that rule in this case. However, since we are remanding the matter to the trial court, defendant will have the opportunity to address section 490.2 on remand.

On the other hand, defendant’s section 459.5 contention, which he properly raised below, has merit. Because the offenses with which defendant was charged in case No. 16F at least potentially fall within section 459.5, the matter must be remanded for further proceedings.

In Gonzales, supra, 2 Cal.5th 858, the defendant who allegedly stole his grandmother’s checkbook, entered a bank, and cashed two checks made out to himself for $125 each, was charged with forgery and second degree burglary. He pleaded guilty to burglary and the forgery charge was dismissed. (Id. at p. 862.) The majority held: (1) These facts constituted misdemeanor shoplifting under section 459.5 because they showed entry into a commercial establishment during regular business hours with the intent to commit theft in an amount less than $950. (Gonzales, at pp. 864-875 (maj. opn. of Corrigan, J.).) (2) Where the alleged facts constitute shoplifting, the prosecution must charge them only that way and may not charge them in the alternative as theft or burglary of the same property. (Id. at pp. 876-877 [rejecting the argument that the defendant’s crimes could not be called shoplifting because he also entered the bank with the intent to commit “identity theft”].)

Gonzales’s second holding was followed in People v. Washington (2018) 23 Cal.App.5th 948 (Washington). The defendant in Washington used another person’s identity without permission to secure credit and purchase items at a Nordstrom store. These facts, which parallel those in the present case, gave rise to convictions for identity theft (§ 530.5, subd. (a)), burglary at a commercial establishment (§ 459), and possession of a forged driver’s license (§ 470b). (Washington, at p. 952.) Before Gonzales was decided, the trial court denied the defendant’s petition to reclassify his burglary conviction as shoplifting, reasoning that his intent was to commit identity theft, which was “not a shop-lifting [sic] type of crime.” (Ibid.) After Gonzales, the defendant renewed his petition, but the trial court, referring to its prior order, summarily denied the petition. (Id. at p. 953.)

On appeal from the trial court’s second order, the defendant contended that Gonzales had rejected the order’s premise that identity theft is outside the scope of “shoplifting.” (Washington, supra, 23 Cal.App.5th at p. 954.) The Attorney General conceded the point, and the appellate court accepted the concession. (Ibid.) In other words, Washington took it as settled law in light of Gonzales that even if a crime can be characterized as identity theft, it is nevertheless misdemeanor shoplifting, and may be punished only as such, if it includes the elements of that offense as defined by section 459.5.

The Attorney General states in a footnote that he does not concede the point he conceded in Washington but makes no argument to show Washington was wrong on this point. Points merely asserted without argument or authority are forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.) Therefore, the Attorney General’s purported withdrawal of his concession carries no weight.

The Attorney General cites two appellate decisions, both published prior to Washington, that hold Proposition 47 relief is not available for violations of section 530.5 (identity theft) because such crimes are not specifically listed in section 1170.18, and have more possible purposes and broader potential harms than theft crimes per se. (People v. Sanders (2018) 22 Cal.App.5th 397, 400-406, review granted July 25, 2018, S248775; People v. Liu (2018) 21 Cal.App.5th 143, 150-153, review granted June 13, 2018, S248130.) But since the Supreme Court has granted review in both cases (but not in Washington, which held that Gonzales required a contrary result as to crimes sounding in “identity theft”), Sanders and Liu have no binding or precedential effect.

The Attorney General contends Gonzales is distinguishable because the “identity theft” charge there (forgery) was dismissed, leaving only a burglary conviction (to which Proposition 47 applies), whereas here the single count to which defendant pleaded — section 470b (displaying or having in one’s possession a driver’s license or identification card with intent to use it to facilitate commission of forgery) — is not a burglary or theft offense. But Gonzales did not merely hold that a defendant could not be convicted of “identity theft” where the alleged facts fit the definition of shoplifting: it held that such a defendant may not even be charged with any theft offense, and impliedly included forgery in that category. (Gonzales, supra, 2 Cal.5th at pp. 876-877; see Washington, supra, 23 Cal.App.5th at p. 954.) Contrary to the Attorney General’s assertion, this portion of Gonzales is not mere dicta that this court is free to disregard.

Similarly, the Supreme Court held in Romanowski, supra, 2 Cal.5th 903 that “theft of access card account information” (§ 484e, subd. (d)), if the amount taken or intended to be taken is under $950, is eligible for Proposition 47 reclassification as misdemeanor theft. (Romanowski, at pp. 905-906.) Romanowski is not directly on point because, unlike the statutes at issue in the present case, section 484e, subdivision (d), uses the expression “grand theft,” and therefore comes within the reach of “petty theft” (§ 490.2, subd. (a)) if involving an amount less than $950. (Romanowski, at pp. 907-910; see People v. Bloomfield (2017) 13 Cal.App.5th 647, 654 [reading Romanowski’s holding narrowly to concern only the specific crime it addressed].) Nevertheless, Romanowski is instructive because it rejects the argument, made now as to section 470b by the Attorney General, that section 484, subdivision (e), is not primarily a “theft” crime. The high court found that any attempt to “retain possession” of access card information “without the cardholder’s or issuer’s consent” and “with the intent to use it fraudulently” within the meaning of the statute constitutes “a form of embezzlement, which is covered by section 484’s definition of ‘theft.’ ” (Romanowski, at p. 912.) Thus, the fact that a statute speaks of an intent to commit fraud (which the theft and burglary statutes do not, but section 470b does), does not necessarily take it out of the category of theft offenses — a category that includes shoplifting. (See Gonzales, supra, 2 Cal.5th at pp. 876-877.)

Romanowski further holds that the alleged “underlying purpose” of section 484e — “ ‘to protect innocent consumers’ ” — does not remove it from the scope of Proposition 47. Even assuming the statute has that purpose, there is nothing in the language of Proposition 47, or in any “unstated expectations about consumer protection,” that shows any intent under Proposition 47 to treat the theft of access card information differently from other forms of theft. (Romanowski, supra, 2 Cal.5th at pp. 912-913.) Thus, the Attorney General’s argument that “identity theft” crimes fall outside Proposition 47 because, unlike theft crimes in general, they potentially have multiple victims or because they have different objectives from theft crimes per se, is untenable.

For all the above reasons, we conclude that the matter must be remanded to the trial court for reconsideration of defendant’s section 995 motion. On remand, defendant may also argue the effect of section 490.2, which he failed to mention in the original motion.

Finally, if the court finds that defendant is entitled to redesignation of the offense in case No. 16F as a misdemeanor, the court is directed to resentence defendant in both cases in accordance with that finding.

DISPOSITION

The matter is remanded to the trial court for further proceedings consistent with this opinion.

HULL, Acting P. J.

We concur:

ROBIE, J.

MAURO, J.

Filed 12/18/19 P. v. Ensminger 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.

ROBERT FRANKLIN ENSMINGER,

Defendant and Appellant.

G056680

(Super. Ct. No. 15HF0356)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David A. Hoffer, Judge. Remanded with directions.

Michael B. McPartland, 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, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Robert Franklin Ensminger was sentenced to a low term of two years for a drug offense, doubled to four years, based on his admission he had suffered a prior strike conviction. Ensminger contends the trial court committed a sentencing error because his admission of prior strike convictions was based on an agreement the prior strike convictions would not be used in sentencing. Ensminger requests this court remand the matter with directions to the sentencing court to strike the prior strike convictions and otherwise comply with the terms of the plea agreement. The Attorney General argues there was no plea agreement, but concedes there was a sentencing error because Ensminger was not provided an opportunity to withdraw his admission. Alternatively, the Attorney General argues if there was a plea agreement, the agreement should be rescinded and the parties allowed to renegotiate. For the reasons stated below, we will remand the matter to the court to determine whether there was a plea agreement and to conduct any further proceedings consistent with the court’s determination.

I

FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Ensminger of various drug-related offenses. Following the jury’s verdict, the trial judge and the parties discussed a “global resolution” of the charges in the instant case and in two other cases.

Thereafter, on June 22, 2017, Ensminger completed a form waiving his right to a jury trial on the prior conviction allegations and admitting he suffered numerous prior convictions (admission form). On the admission form, Ensminger acknowledged that his prior drug convictions could expose him to a three-year enhancement under Health and Safety Code section 11370.2, subdivision (c). He also handwrote his admissions would have the following effect on his sentence: his prior strike convictions would be stricken under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and Penal Code section 1385, subdivision (c), and his prior prison term enhancements would be stricken for sentencing purposes.

At the court trial on the priors, the trial court conducted a colloquy confirming Ensminger’s waiver of his relevant constitutional rights and his admission he suffered the alleged prior convictions. The court then proceeded to sentencing. It stated: “I’ve discussed this case with counsel and indicated to counsel that the court intends to remove the strikes and sentence the defendant to the low term on count 1 with an additional year of time based on one of his prior convictions . . .” Asked to comment on the indicated sentence, the district attorney stated “the People were requesting a five-year sentence on this case,” although he acknowledged “the court . . . has indicated a different sentence . . .” Defense counsel commented that the parties had “talked about what the ultimate sentence would be that would be appropriate on this.” Counsel noted the parties discussed a “low term plus a prison prior, and then structuring potentially the sentences of the others – the two open matters consecutively. We left off with what would have been a six-year max.” Counsel stated Ensminger hoped “the court would give him low term of two years on his possession case, not impose a prior, then impose the consecutive time of one year eight months, eight months, eight months, for a total of three on top of the two to get us back to the original of five [years].”

The court responded: “I understand this is a global resolution that – the sentenced proposed on [the instant case] would be different if it was being sentenced by itself. And it is, as I understand, being sentenced along with two other matters. And if – if the defendant enters guilty pleas on those two other matters, the court’s indicated sentence is to sentence the defendant to three years consecutive on [the other case] for a total sentence of six years. [¶] . . . When it comes to the sentence on [the instant case], the sentence will be three years that the court indicated to counsel in chambers.” The court then took the guilty pleas on the other matters, and continued sentencing on the instant matter.

The following day, defense counsel informed the court Ensminger wanted to accept the “option the court provided in which he could do two years on the [other case] concurrent to the five-year sentence that he was going to get on the [instant case.].” The district attorney did not object to this resolution. The court struck Ensminger’s strikes and prior prison term enhancements. It sentenced him to five years in prison, consisting of the low term of two years on count 1, plus a consecutive three-year term on one of the Health and Safety Code section 11370.2, subdivision (c) enhancements.

After Ensminger appealed, this court reversed the Health and Safety Code section 11370.2, subdivision (c), enhancements because, effective January 1, 2018, those enhancements were repealed if they were based on prior convictions for violations of Health and Safety Code sections 11378 and 11379, subdivision (a). Although we acknowledged the parties disputed whether striking the enhancements would alter the global resolution of Ensminger’s three cases, we declined to resolve the issue and remanded the case to the trial court for a “full resentencing hearing.”

On July 27, 2018, the trial court conducted a resentencing hearing. It found the guilty pleas in the other matters were “based on an offer to resolve the whole case for five years.” The court asked for options to approximate that same five-year sentence. During the ensuing discussions, the court expressed concern that imposing a new five-year sentence would result in a longer prison term than the original sentence because of changes in the law on parole eligibility and custody credits. The court imposed one of Ensminger’s prior strike convictions, and sentenced him to four years in prison, consisting of the low term of two years, doubled due to the strike.

II

DISCUSSION

The parties agree the trial court erred in imposing one of Ensminger’s prior strike convictions, although they arrive at this conclusion in different ways. According to Ensminger, he admitted the prior convictions based on a “plea agreement” that the strikes would be stricken. The court’s imposition of the strike violated the “bounds of the plea agreement.”

According to the Attorney General, there was no plea agreement. Rather, the trial court had indicated it would strike the prior strike convictions if Ensminger admitted them. When the court failed to follow through on the indicated sentence, Ensminger should have been afforded an opportunity to withdraw his admissions before the sentencing court could rely on those admissions. (Cf. People v. Delgado (1993) 16 Cal.App.4th 551, 555 [remedy for not receiving a sentence promised by the court was opportunity to withdraw guilty plea].) Because Ensminger was not afforded that opportunity, the court could not impose the strike conviction.

We agree the trial court improperly imposed one of Ensminger’s strikes. On the available record, however, we cannot determine whether the “global resolution” involved a negotiated sentence or a lawful indicated sentence. The trial court determined the global resolution was an “offer” of a five-year sentence in the instant case and the admission form indicates the prior strike convictions and the prior prison terms would not be used in sentencing. These facts, however, do not resolve whether a plea agreement existed. (Cf. People v. Clancey (2013) 56 Cal.4th 562, 582 [“[W]hen a trial court has invoked its statutory power to dismiss the strike allegation in order to indicate the sentence it would impose, the court has not engaged in plea bargaining.”]; People v. Buttram (2003) 30 Cal.4th 773, 789 [“[B]y negotiating only a maximum term, the parties leave to judicial discretion the proper sentencing choice within the agreed limit.”]; Pen. Code, § 1192.5 [plea agreement “may specify the exercise by the court thereafter of other powers legally available to it”].)

Whether the global resolution results in a negotiated sentence or a lawful indicated sentence in the instant case will determine the scope of the relief granted. For example, if the global resolution is a lawful indicated sentence, the trial court may impose a new sentence that does not violate the terms of the indicated sentence. Alternatively, it can reinstate the instant sentence if Ensminger does not withdraw his admissions to the priors. If Ensminger does withdraw his admissions, he may go to trial on the prior conviction allegations or submit a new admission form. A new sentencing hearing would follow.

If the global resolution is a negotiated sentence, the trial court must determine the material terms of the negotiated sentence. The ensuing resentencing must comply with those terms, or depending on the facts, the plea agreement may be rescinded and the parties may renegotiate. Accordingly, we will remand the matter for the trial court to hold a hearing to determine the parameters of the global resolution in the context of the instant case and to conduct further proceedings in light of the court’s determination. The trial court is not limited to the resolutions proposed above, but may proceed in any manner appropriate to the court’s determination.

III

DISPOSITION

The matter is remanded for further proceedings consistent with this opinion.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

THOMPSON, J.

Filed 12/18/19 P. v. Sandoval 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.

MATTHEW SANDOVAL,

Defendant and Appellant.

G057558

(Super. Ct. No. 98NF0649)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed.

Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Charles J. Sarosy, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

In 2001, defendant Matthew Sandoval was convicted of attempted murder as an aider and abettor. In 2018, the Legislature limited accomplice liability for murder. Generally, accomplices can no longer be convicted of murder under the felony-murder rule or the natural and probable consequences theory. The Legislature also enacted a statute allowing accomplices previously convicted of murder to petition trial courts to vacate their murder convictions and be resentenced. (Pen. Code, § 1170.95.)

Sandoval filed a petition under section 1170.95. The trial court denied Sandoval’s petition because he was convicted of attempted murder, not murder.

Sandoval appeals, arguing the Legislature intended to include attempted murder under section 1170.95. We disagree and affirm the order of the trial court.

I

FACTS AND PROCEDURAL HISTORY

In January 1998, Sandoval and two fellow gang members drove into a rival gang’s territory. One of Sandoval’s accomplices fired a gun at a rival gang member. A jury convicted Sandoval of attempted murder and related crimes; the jury also found true related sentencing enhancements. The trial court imposed a sentence of 32 years to life. This court affirmed the judgment on direct appeal.

In March 2019, Sandoval filed a section 1170.95 petition. Sandoval declared, “I am eligible for relief . . . because I was convicted of attempted murder . . . under the natural and probable consequences doctrine . . . .” The trial court summarily denied Sandoval’s petition. According to the court’s minutes order: “The petition does not set forth a prima face [sic] case for relief under the statute. A review of court records indicates defendant is not eligible for relief under the statute because the defendant does not stand convicted of murder . . . .”

II

DISCUSSION

Sandoval argues section 1170.95 applies to convictions for attempted murder. This is a pure legal issue involving statutory interpretation; therefore, our review is de novo. (See People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)

A. Principles of Statutory Interpretation

When construing a statute, our goal is to ascertain legislative intent to effectuate the purpose of the law. (People v. Jefferson (1999) 21 Cal.4th 86, 94.) The words of a statute are to be given their usual and ordinary meaning. (Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744.) If the statutory language is unambiguous, “we presume the Legislature meant what it said, and the plain meaning of the statute governs.” (People v. Robles (2000) 23 Cal.4th 1106, 1111.)

Courts may neither insert words nor delete words in an unambiguous statute; the drafting of statutes is solely a legislative power. (People v. Hunt (1999) 74 Cal.App.4th 939, 945-946.) “In construing this, or any, statute, our office is simply to ascertain and declare what the statute contains, not to change its scope by reading into it language it does not contain or by reading out of it language it does. We may not rewrite the statute to conform to an assumed intention that does not appear in its language.” (Vasquez v. State of California (2008) 45 Cal.4th 243, 253.)

“Statutory language is not considered in isolation. Rather, we ‘instead interpret the statute as a whole, so as to make sense of the entire statutory scheme.’” (Bonnell v. Medical Board (2003) 31 Cal.4th 1255, 1261.) We must also “interpret legislative enactments so as to avoid absurd results.” (People v. Torres (2013) 213 Cal.App.4th 1151, 1158.)

B. The Statutory Framework and Language of Section 1170.95

“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (§ 187, subd. (a).) Though under the felony-murder rule, a defendant can be convicted of murder without malice if a victim is killed during a designated inherently dangerous felony. (See CALCRIM No. 540A [“A person may be guilty of felony murder even if the killing was unintentional, accidental or negligent”].)

Generally, a defendant may be convicted of a crime either as a perpetrator or as an aider and abettor. (§ 31.) An aider and abettor can be held liable for crimes that were intentionally aided and abetted (target offenses); an aider and abettor can also be held liable for any crimes that were not intended but were reasonably foreseeable (nontarget offenses). (People v. Laster (1997) 52 Cal.App.4th 1450, 1463.) Liability for intentional, target offenses is known as “direct” aider and abettor liability; liability for unintentional, nontarget offenses is known as the ““‘natural and probable consequences” doctrine.’” (People v. Montes (1999) 74 Cal.App.4th 1050, 1055.)

Effective January 1, 2019, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.) to “amend the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature amended section 188 (defining malice), and section 189 (defining the degrees of murder).

As a result of Senate Bill No. 1437, the Legislature also added section 1170.95 (Stats. 2018, ch. 1015, § 4, eff. Jan. 1, 2019), which provides a procedure for aiders and abettors to challenge their previous murder convictions. In relevant part, the statute provides:

“(a) A person convicted of felony murder or murder under a natural and probable consequences theory may file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:

“(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine.

“(2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder.

“(3) The petitioner could not be convicted of first or second degree murder because of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95, subd. (a), italics added.)

C. Analysis

Senate Bill No. 1437 affects murder convictions; it does not apply to convictions for attempted murder. None of the added or amended sections make any reference to attempted murder. (§§ 188, 189, 1170.95.) “If the plain language of the statute is clear and unambiguous, [the courts’] inquiry ends, and [one] need not embark on judicial construction.” (People v. Johnson (2002) 28 Cal.4th 240, 244.)

Another appellate court recently held that Senate Bill No. 1437 does not apply to the crime of attempted murder. (People v. Lopez (2019) 38 Cal.App.5th 1087, 1104-1105 (Lopez).) In Lopez, the appellate court concluded the “Legislature’s obvious intent to exclude attempted murder from the ambit of the Senate Bill [No.] 1437 reform” was evidenced by the language of section 1170.95 itself, as it limits its application to murder convictions. (Lopez, supra, 38 Cal.App.5th at pp. 1104-1105.) The court further observed: “The plain language meaning of Senate Bill [No.] 1437 as excluding any relief for individuals convicted of attempted murder is fully supported by its legislative history.” (Id. at p. 1105.) The court noted the Legislature consistently referred to relief being available to only those defendants charged with first or second degree felony murder or murder under the natural and probable consequences doctrine, and to only those defendants sentenced to first or second degree murder. (Ibid.)

We agree with the Lopez court. (See accord People v. Munoz (2019) 39 Cal.App.5th 738, 753-754 (Munoz) [Senate Bill No. 1437 does not apply to defendants convicted of attempted murder].) Thus, as Sandoval was not convicted of murder, the trial court did not err by summarily denying his section 1170.95 petition.

Sandoval argues that People v. King (1993) 5 Cal.4th 59 (King), compels a different result. We disagree. In King, there had been several changes over time to interrelated statutes in the Penal Code and the Welfare and Institutions Code. Appellate courts had interpreted the statutes in way that resulted in a sentencing anomaly: certain juveniles convicted of first degree murder were eligible for commitment to the former California Youth Authority (CYA), but similar juveniles convicted of attempted first degree murder were required to be confined in prison. (Id. at pp. 64-70.) The California Supreme Court disagreed, holding that the Legislature “did not intend a lesser included offense to have potentially harsher penal consequences than the greater offense. Defendant should not be penalized because one of his victims survived; he should not be made to regret not applying the coup de grace to that victim.” (Id. at p 69.)

Here, unlike King, Senate Bill No. 1437 “is not the result of a disjointed series of amendments over time . . . from which we might infer inadvertence or irrationality [on the part of the Legislature]. Instead, the relevant provisions are contained in a single cohesive bill.” (Munoz, supra, 39 Cal.App.5th at p. 759.) Further, in the situation described in King, supra, 5 Cal.4th 59, “first degree murderers under 18 were eligible for CYA, whereas persons of the same age who committed attempted murder were not. Here, in contrast, Senate Bill [No.] 1437 does not mandate that persons convicted of attempted murder are punished more severely than persons convicted of murder. Attempted murderers are statutorily subject to a lesser, not a greater, penalty than murderers. Senate Bill [No.] 1437 does not require that attempted murderers receive a harsher sentence, or prohibit them from receiving a more lenient sentence, than murderers.” (Munoz, supra, 39 Cal.App.5th at p. 759.) In sum, the California Supreme Court’s holding in King, supra, 5 Cal.4th 59, does not alter our analysis.

Finally, Sandoval argues that Senate Bill No. 1437 violates equal protection principles. We disagree. “‘“Persons convicted of different crimes are not similarly situated for equal protection purposes.” [Citations.] “[I]t is one thing to hold . . . that persons convicted of the same crime cannot be treated differently. It is quite another to hold that persons convicted of different crimes must be treated equally.”’” (People v. Barrera (1993) 14 Cal.App.4th 1555, 1565.)

Here, through Senate Bill No. 1437 and section 1170.95, the Legislature has determined that accomplices convicted of murder are to be treated differently than those convicted of other crimes. This legislative judgment simply does not implicate equal protection principles. (See Munoz, supra, 39 Cal.App.5th at p. 760 [“The remedy for any potentially inequitable operation of section 1170.95 lies with the Legislature. If the Legislature concludes it is unwise or inequitable to exclude attempted murderers from Senate Bill [No.] 1437’s reach, it has only to amend the law”].)

III

DISPOSITION

The trial court’s order denying the section 1170.95 petition is affirmed.

MOORE, ACTING P. J.

WE CONCUR:

THOMPSON, J.

DUNNING, J.*

*Retired Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Case Number: BC640352 Hearing Date: December 19, 2019 Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

CHRISTOPHER MITCHELL, et al.,

Plaintiffs,

vs.

JEREMY DANIELS-STOCK, et al.

Defendants.

AND RELATED CONSOLIDATED CASE

CASE NO.: BC640352

[TENTATIVE] ORDER RE: DEMURRER TO COMPLAINT

Date: December 19, 2019

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Defendants Jeremy Daniels-Stock (“Daniels-Stock”) and JDS Minions, Inc. (“JDS”)

RESPONDING PARTY: Plaintiff Koi Pond, Inc.

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

Plaintiff filed a complaint in Koi Pond, Inc. v. Jeremy Daniels Stock et al., Los Angeles Superior Court case number 19STCP03959 (the “Consolidated Case”) on September 12, 2019 which arises from alleged wrongful actions in connection with investing in real estate ventures for profit. The Consolidated Case is related and consolidated with the lead case entitled Christopher Mitchell et al. v. Jeremy Daniels-Stock et al., Los Angeles Superior Court case number BC640352 (the “Lead Case”). The complaint in the Consolidated Case alleges causes of action for: (1) breach of fiduciary duties; and (2) quiet title.

Defendants filed a demurrer to the first and second causes of action with respect to the Consolidated Case. Defendants assert that Plaintiff’s complaint in the Consolidated Case is time barred on its face.

MEET AND CONFER

The meet and confer requirement has been met.

DEMURRER

“A demurrer tests the sufficiency of a complaint as a matter of law.” (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1358.) “[T]he court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Id.) “The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.” (Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) With respect to a demurrer “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517.) “On demurrer, all material facts properly pleaded and all reasonable inferences which can be drawn therefrom are deemed admitted.” (Bush v. California Conservation Corps (1982) 136 Cal.App.3d 194, 198.) A general demurer is allowed when the complaint on its face shows that an action is barred by the statute of limitations. (Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 300.) “It is established that a demurrer which merely states that the cause of action set forth in the complaint is on its face barred by the statute of limitations is sufficient to raise that defense.” (Williams v. International Longshoremen’s and Warehousemen’s Union, Local No. 10 (1959) 172 Cal.App.2d 84, 87.) “A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false.” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1491.)

Issue No. 1: First Cause of Action

“The statute of limitations for breach of fiduciary duty is three or four years, depending on whether the breach is fraudulent or nonfraudulent.” (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225 Cal.App.4th 1451, 1479.) In the context of a breach of fiduciary duty cause of action “where the gravamen of the claim is deceit” the statute of limitations is three years. (Fuller v. First Franklin Financial Corp. (2013) 216 Cal.App.4th 955, 963.) “The nature of the right sued on, not the form of action demanded, determines the applicability of the statute of limitations.” (Schneider v. Union Oil Co. (1970) 6 Cal.App.3d 987, 993.) “An important exception to the general rule of accrual is the discovery rule, which postpones accrual of a cause of action until the plaintiff discovers, or as reason to discover, the cause of action.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 807.) “A plaintiff has reason to discover a cause of action when he or she has reason to at least suspect a factual basis for its elements.” (Id.) “Under the discovery rule, suspicion of one or more of the elements of a cause of action, coupled with knowledge of any remaining elements, will generally trigger the statute of limitations period.” (Id.) “A cause of action under this discovery rule accrues when plaintiff either (1) actually discovered his injury and its negligent cause or (2) could have discovered injury and cause through the exercise of reasonable diligence.” (McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 108.) In order to invoke the benefit of the discovery rule a plaintiff must “specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.” (NBCUniversal Media, LLC v. Superior Court (2014) 225 Cal.App.4th 1222, 1232.) The statute of limitations for conversion is three years under California Code of Civil Procedure, Section 338(c)(1). The statue of limitations for breach of oral contract is two years under California Code of Civil Procedure, Section 339.

Plaintiff’s complaint alleges that: (1) Daniels-Stock represented he was getting all necessary permits and inspections when in actuality Daniels-Stock was using unlicensed contractors and was lying about permits which he never obtained (Complaint at ¶ 19); (2) over the last six months of 2014 and the beginning of 2015, Daniels-Stock drained the Koi Pond bank account and effectively stole the money from Koi Pond (Id.); (3) in January 2016, Daniels-Stock took the funds he had stolen from Koi Pond and used those funds to form JDS (Id. at ¶ 25); and (4) Daniels-Stock breached his fiduciary duty to Koi Pond by converting Koi Pond’s funds, hiring unlicensed individuals and failing to obtain permits, failing account for funds, failing to timely and accurately report on the status of the rehab of the two projects, and creating JDS to convert Koi Pond’s funds for his own personal benefit. (Id. at ¶ 43.) The complaint alleges two property rehab projects—the Dauphine and St.Philip projects—began in 2014 and 2015, respectively. The complaint alleges that: (1) Daniels-Stock drained the Koi Pond bank account with respect to the Dauphine project over the last six months of 2014 and the beginning of 2015 (Complaint at ¶ 19); (2) with respect to the St.Philip project, Daniels-Stock paid himself $32,000.00 from the Koi Pond bank account without producing receipts to validate that figure (Id. at ¶ 21); (3) in November 2015, Daniels-Stock took another $30,000.00 from the Koi Pond bank account (Id. at ¶ 22); and (4) by February 2016, it was obvious that Daniels-Stock was not doing his job with respect to the St. Philip project and that he was taking money out of the Koi Pond bank account for his own use rather than spending it on any remodeling of the St. Philip project. (Id. at ¶ 24.)

Initially, the Court finds that Plaintiff cannot invoke the discovery rule because the complaint does not plead the manner of discovery of the alleged wrongful actions at issue, and the complaint does not plead facts showing reasonable diligence on behalf of Plaintiff as required by NBCUniversal.

The Court finds that Plaintiff’s first cause of action is barred by the statute of limitations. The Court finds that the gravamen of the first cause of action is the deceit of Daniels-Stock based on the complaint’s allegations that Daniels-Stock made various representations that were contrary to the truth in order for him to convert Koi Pond’s funds. Even if the Court found that the gravamen of the first cause of action was conversion, the applicable statute of limitations would still be three years. The complaint indicates that: (1) with respect to the Dauphine project, Daniel-Stock’s wrongful actions concluded by the beginning of 2015 (Complaint at ¶ 19); (2) the discovery of Daniel-Stock’s wrongful actions in connection with the St.Philip project was revealed by February 2016 when Mitchell had to take over that project (Id. at ¶ 24); and (3) Daniels-Stock created JDS on or about January 21, 2016 and used funds he had stolen from the bank account of Koi Pond to start JDS. (Id. at ¶ 25.) The complaint in the Consolidated Case was filed on September 12, 2019. The complaint was filed more than three years after the last action took place that gives rise to the breach of fiduciary duty cause of action.

Therefore, the Court SUSTAINS the demurrer of Defendants to the first cause of action in the complaint with 20 days leave to amend.

Issue No.2: Second Cause of Action

A quiet title cause of action is insufficient where the complaint is not verified. (Lewis v. Superior Court (1994) 30 Cal.App.4th 1850, 1866.)

Plaintiff’s opposition fails to even address Defendants’ argument that the quiet title cause of action is based on the faulty breach of fiduciary duty cause of action, and that the quiet title cause of action is insufficient because the complaint is unverified. The Court finds that Plaintiff’s failure to address these arguments indicates a concession to such arguments. (Heglin v. F.C.B.A. Market (1945) 70 Cal.App.2d 803, 806.)

Therefore, Defendants’ demurrer to the second cause of action in the complaint is SUSTAINED with 20 days leave to amend.

Moving parties are ordered to give notice of this ruling.

Case Number: BC722741 Hearing Date: December 19, 2019 Dept: 58

Judge John P. Doyle

Department 58

Hearing Date: December 19, 2019

Case Name: KS World Inc. v. Funabiki, et al.

Case No.: BC722741

Motion: Anti-SLAPP Motion

Moving Party: Defendant Yusuke Funabiki

Opposing Party: Plaintiff KS World Inc.

Tentative Ruling: The Anti-SLAPP Motion is granted.

This an action in which Plaintiff alleges that Defendant breached a settlement agreement by submitting a declaration in a class action lawsuit against Plaintiff. On September 24, 2018, Plaintiff filed the operative Complaint for breach of contract.

I. Anti-SLAPP Motion

Defendant brings an Anti-SLAPP Motion arguing that (1) Plaintiff’s breach of contract claim arises from protected activity to the extent it challenges Defendant’s testimony in a lawsuit and (2) there is no probability of prevailing on such claim because the contract provision sought to be enforced is void and the litigation privilege applies.

(a) Legal Standard

Code of Civil Procedure section 425.16 sets forth the procedure governing anti-SLAPP motions. In pertinent part, the statute states, “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(b)(1).) The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech. (Code Civ. Proc. § 425.16(a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

Courts employ a two-step process to evaluate anti-SLAPP motions. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) To invoke the protections of the statute, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech. (Ibid.) From this fact, courts “ ‘presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights. It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ ” (Ibid.) In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc. § 425.16(b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (“Soukup”).)

(b) Protected Activity

An “ ‘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(e).)

The instant suit arises from protected activity under Code Civ. Proc. § 425.16(e)(1) to the extent the challenged conduct is Defendant’s submission of declaration in a lawsuit. (Compl. ¶¶ 10-20.) That the first cause of action is framed as breach of contract does not aid Plaintiff because “[n]either the form of the complaint nor the primary right at stake is determinative.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 395.) Further, the Court rejects the notion that the subject settlement agreement operates as a waiver of anti-SLAPP protections.

(c) Minimal Merit

On the second component of the analysis, courts employ a “summary-judgment-like” procedure, “accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.) In other words, the Court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard. The Court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP. (Soukup, supra, 39 Cal.4th at p. 291.)

Plaintiff’s claim for breach of contract lacks minimal merit because it relies on a provision which is void as against public policy. Indeed, the subject provision provides, “FUNABIKI specifically represents that he will not in the future file, participate in (unless required by law), encourage, or instigate the filing of, or recover any wages, penalties, settlements or judgments in connection with, any lawsuit by any party in any state or federal court, or of any proceeding before any local, state, or federal agency, based upon events occurring prior to the date of execution of this Agreement, claiming [Plaintiff] have violated any local, state or federal laws, statutes, ordinances or regulations, or concerning any allegations of tortious conduct and/or violations of contractual relationships of any kind.” (Compl. ¶ 10.) Such provision is unenforceable as it seeks to preclude Defendant’s testimony in a lawsuit. (McPhearson v. Michaels Co. (2002) 96 Cal.App.4th 843, 847 [“Indeed, it would be contrary to public policy to permit a party to litigation to dissuade or otherwise influence the testimony of a percipient witness through a private agreement. (See Evid. Code, § 911 [unless otherwise provided by statute, no one has a privilege to refuse to be a witness; to refuse to disclose a matter or produce a writing, object, or other thing; or to insist that another person not be a witness, not disclose a matter, or not produce a writing, object, or other thing]; Pen. Code, § 136.1 [it is a crime to knowingly and maliciously prevent or dissuade a witness from attending or giving complete and truthful testimony in a judicial proceeding].)”].)

But, even if this were not true, the Court agrees with Defendant that the breach of contract claim is barred by the litigation privilege.

The litigation privilege set forth in Civ. Code § 47 generally applies “to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 509 Cal.3d 205, 212.) The “principle purpose of [the litigation privilege] is to afford litigants . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Id. at p. 213.) “The litigation privilege is . . . relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) Statements made in anticipation of litigation are subject to the litigation privilege. (Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1115.)

“[W]hether the litigation privilege applies to an action for breach of contract turns on whether its application furthers the policies underlying the privilege.” (Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1492.)

Here, the litigation privilege applies because (1) the challenged conduct is Defendant’s testimony in a lawsuit and (2) barring the subject settlement provision would support the privilege’s purpose “to ensure free access to the courts, promote complete and truthful testimony, encourage zealous advocacy, give finality to judgments, and avoid unending litigation.” (Wentland, supra, 126 Cal.App.4th at p. 1492.)

Because Plaintiff’s breach of contract claim lacks minimal merit, the anti-SLAPP Motion is granted.

Case Number: 19STCP01615 Hearing Date: December 19, 2019 Dept: 94

Bereliani v. Shemuelian, et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

Petitioner Sanaz Sarah Bereliani, Esq.’s Petition to Confirm Arbitration Award is PLACED OFF CALENDAR.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) NO

[X] Correct Address (CCP §§ 1013, 1013a) NO

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NO

SUMMARY OF PROCEEDINGS: Petition to confirm arbitration award.

RELIEF REQUESTED: Enter judgment against Respondent pursuant to the terms of the arbitration award.

OPPOSITION: None filed as of December 11, 2019.

REPLY: None filed as of December 11, 2019.

Bereliani v. Shemuelian, et al.

PETITION TO CONFIRM ARBITRATION AWARD

(CCP § 1285)

TENTATIVE RULING:

Petitioner Sanaz Sarah Bereliani, Esq.’s Petition to Confirm Arbitration Award is PLACED OFF CALENDAR.

ANALYSIS:

On December 6, 2018, an arbitrator issued an Arbitration Award in favor of Sanaz Sarah Bereliani, Esq. (“Petitioner”) and against Avi Shemuelian (“Respondent”). On April 30, 2019, Petitioner filed the instant Petition to Confirm Arbitration Award (the “Petition”). To date, no response has been filed.

Legal Standard

Per Code of Civil Procedure section 1285, “Any party to an arbitration in which an award has been made may petition the court to confirm, correct or vacate the award. The petition shall name as respondent all parties to the arbitration and may name as respondents any other persons bound by the arbitration award.”

Per Code of Civil Procedure section 1285.4, “A petition under this chapter shall: (a) Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement; (b) Set forth the names of the arbitrator; and (c) Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.”

Per Code of Civil Procedure section 1286, “If a petition or response under this chapter is duly served and filed, the court shall confirm the award as made, whether rendered in this state or another state, unless in accordance with this chapter it corrects the award and confirms it as corrected, vacates the award or dismisses the proceeding.”

Discussion

Service of the Petition and Notice of Hearing

Code of Civil Procedure, section 1290.4 requires the Petition and Notice of Hearing to be served on Respondents “in the manner provided in the arbitration agreement for the service of such petition and notice” or “[i]f the arbitration agreement does not provide the manner in which such service shall be made . . . [s]ervice within this State shall be made in the manner provided by law for the service of summons in an action.” (Code Civ. Proc., § 1290.4, subds. (a), (b).)

Petitioner filed proof of service demonstrating service of the Petition on Respondent by substitute service. As the arbitration agreement does not provide for a particular method of service, service must comply with the requirements for service of a summons. Substitute service is a valid method of serving a Summons under Code of Civil Procedure section 415.20. However, the proof of service does not indicate that the Notice of Hearing or Notice Re: Continuance of Hearing were served on Respondent in any manner, let alone in a manner for service of a Summons. (Proof of Service, filed 8/12/19, ¶2f.)

At the initial hearing on November 4, 2019, the Court ordered Petitioner to file proof of service demonstrating service of the Notice of Hearing Date in conformity with the requirements of Code of Civil Procedure, section 1290.4 at least 16 court days prior to the new hearing date. On November 27, 2019, Petitioner filed a “Notice of Continued Hearing on Petition to Confirm Arbitration Award.” The proof of service of the Notice of Continued Hearing, however, indicates that it was only served on Respondent by mail. (Notice of Continued Hearing, filed 11/27/19, Proof of Service.) Service by regular mail does not satisfy the requirements for service of a summons.

Petitioner, therefore, has still not demonstrated compliance with the requirements of Code of Civil Procedure, section 1290.4.

Service of the Arbitration Award (CCP §§ 1283.6, 1288)

Code of Civil Procedure section 1283.6 requires that “[t]he neutral arbitrator shall serve a signed copy of the award on each party to the arbitration personally or by registered or certified mail or as provided in the agreement.” (Code Civ. Proc., § 1283.6.) Service of the arbitration award with the Petition itself is sufficient to overcome any irregularity in service of the Petition by the arbitrator. (Murry v. Civil Service Employees Ins. Co. (1967) 254 Cal.App.2d 796, 799-800.)

The Petition does indicate that the Award was served on both parties on December 13, 2018 by mail. (Pet., Attachment 6(c), p. 8.) Furthermore, the Award was served with the Petition less than a year after it was issued.

Therefore, the Court finds that the requirements of Code of Civil Procedure, sections 1283.6 and 1288 have been satisfied.

Confirmation of the Arbitration Award

An arbitration award is not directly enforceable until it is confirmed by a court and judgment is entered. (CCP § 1287.6; Jones v. Kvistad (1971) 19 Cal.App.3d 836, 840.) The court must confirm the award as made, unless it corrects or vacates the award, or dismisses the proceeding. (CCP § 1286; Valsan Partners Limited Partnership v. Calcor Space Facility, Inc. (1994) 25 Cal.App.4th 809, 818.) Code of Civil Procedure, section 1285.4 states a petition under this chapter shall:

Set forth the substance of or have attached a copy of the agreement to arbitrate unless the petitioner denies the existence of such an agreement.

Set forth the names of the arbitrators.

Set forth or have attached a copy of the award and the written opinion of the arbitrators, if any.

(Code Civ. Proc., § 1285.4.) The Petition complies with the above requirements. It sets forth the nature of the agreement to arbitrate. (Petition, ¶4.) It also sets forth the name of the Arbitrator (Scott Lee Shabel, Esq.) and attaches a copy of the Award to the Petition. (Petition, Attachment 6(c).) The Petition demonstrates that on December 13, 2018, the arbitrator issued an award requiring Respondent to pay Petitioner $6,392.50. Accordingly, Petitioner has complied with the requirements of Code of Civil Procedure, section 1285.4.

Conclusion

Petitioner was previously ordered to correct the defects in service of the Notice of Hearing and warned that failure to do so might result in the Petition being placed off calendar or denied. Therefore, the Petition to Confirm Arbitration Award is PLACED OFF CALENDAR.

Court clerk to give notice.

Filed 12/19/19 P. v. Hyatt 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.

LEVON ARTHUR HYATT,

Defendant and Appellant.

E070948

(Super.Ct.Nos. INF1701678 &

INF1701884)

OPINION

APPEAL from the Superior Court of Riverside County. Richard A. Erwood, 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.

Rachel Varnell, 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, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.

I.

INTRODUCTION

Defendant and Appellant, Levon Arthur Hyatt, committed various acts of domestic violence against his girlfriend (Doe), resulting in the following jury convictions: vandalism over $400 (Pen. Code, § 594, subd. (a); count 2); dissuading a witness by the use of force or threat of force and violence (§ 136.1, subd. (c)(1); count 4); stalking in violation of a restraining order (§ 646.9, subd. (b); count 5); stalking (§ 646.9, subd. (a); count 6); violating a criminal protective order within seven years of a prior conviction and involving an act of violence (§ 166, subds. (c)(1), (c)(4); count 7); simple assault as a lesser included offense of domestic battery (§ 240; count 8); violating a criminal protection order (§ 166, subd. (c)(1); count 9); and misdemeanor vandalism (§ 594, subd. (a); count 10). The trial court sentenced defendant to 14 years and four months in state prison.

On appeal, defendant contends that his attorney provided ineffective assistance of counsel (IAC) by not filing a Pitchess motion; failing to refile and argue a posttrial Romero motion; and failing to provide zealous closing argument. Defendant further contends the trial court abused its discretion in denying his Romero motion. In addition, defendant asserts that this case must be remanded under Senate Bill No. 1393 (2017-2018 Reg. Sess.) (SB 1393), to permit the trial court to exercise its discretion to strike his 2006 prior serious felony conviction. Defendant also contends that the abstract of judgment should be corrected because it improperly describes count 2 as vandalism over $5,000, whereas the jury found the damage to be at least $400. Defendant further contends the court erred in imposing a $2,000 state restitution fine and a stayed $2,000 parole revocation fine without determining whether he had the ability to pay the fines.

We reject defendant’s contentions, but reverse the sentencing order imposing a prior serious felony enhancement. We further direct the trial court upon remand under SB 1393, to exercise its discretion to determine whether to strike defendant’s prior serious felony enhancement under recently amended sections 667 subdivision (a) and 1385, subdivision (b). The judgment is otherwise affirmed. The trial court is also directed to amend the abstract of judgment to correctly describe defendant’s count 2 conviction as “vandalism greater than $400.”

II.

FACTUAL BACKGROUND

Between January 2017, and June or July 2017, defendant and Doe dated and lived with each other. In June or July of 2017, defendant and Doe broke up, got back together, and then broke up again. During the morning of July 28, 2017, Doe went to defendant’s work to return items defendant had left at her house. Defendant wanted Doe to stay and talk. When Doe refused, defendant grabbed Doe’s car keys and threw them above the carport. Doe eventually got her keys back.

Later that day, defendant crashed his Dodge Durango SUV into Doe’s garage, knocking down the garage door. Doe’s two children, mother and grandmother were inside her home at the time. Doe told officers that she and defendant had argued earlier that day and defendant had threatened to drive his vehicle through her garage door. A day or two after the incident, Doe requested a restraining order against defendant. The court issued a no-negative contact protective order, restraining defendant from negative contact with Doe.

During the evening of October 19, 2017, after Doe and defendant had resumed seeing each other, Doe refused to have sex with defendant. In anger, defendant broke Doe’s window by throwing a hand weight through the second story window of Doe’s bedroom. Defendant then grabbed Doe’s cell phone from her, after she said she was going to call the police.

The next morning, defendant retrieved the garage remote from Doe’s car. While the two struggled over the garage remote, Doe grabbed her cell phone from defendant. Defendant left, and Doe went to work at the bank. While at work, she texted defendant to leave her alone. When Doe left the bank with a customer after work that day, defendant was waiting for her in the parking lot. Defendant asked Doe for a ride. When she refused, defendant picked up a rock and threatened to break her window if she did not give him a ride. Doe drove away in her car.

J.W., who was a bank customer, testified he witnessed the incident. J.W. saw defendant try to get into Doe’s car, and heard Doe scream, “‘No. Leave me alone. I want you to go away.’” J.W. saw defendant pick up a rock and say, “‘I’ll break your f—ing window.’” Eventually, defendant got in his car and left.

At 6:30 p.m. that same day, on October 20, 2017, Doe flagged down Deputy James and told him her ex-boyfriend, defendant, was following her. Doe appeared upset and in fear. She told Deputy James about the events the night before. Later, when Doe got home, the front window of her house was broken and there was a rock on the floor. Doe called Deputy James and told him she had arranged to meet defendant. She asked Deputy James to go instead, and said she wanted defendant prosecuted. Doe said defendant had threatened to destroy her house and she feared for her personal safety. She also sent Deputy James a text that defendant kept contacting her and that, after she told defendant to stop, he replied, “‘You deserve everything you got.’”

On October 21, 2017, Officer Charles Oehring took Doe’s statement, during which Doe described the incidents on October 19 and 20, 2017. Doe also later told Officer Oehring defendant threatened her from jail.

At trial, Doe testified regarding the incidents on July 28, 2017, and said that it had cost $1,200 to $1,300 to repair her garage door. Doe further testified defendant later agreed to pay for the damage he had caused to her home, including the two broken windows. Doe testified that the cost to repair the upstairs window was $180 and the cost to repair the downstairs window was $220.

Doe testified not only for the prosecution, but also for the defense. She stated that in November 2017, she sent a letter to the court, stating that she had been upset about the broken windows when she spoke to the police and had not been truthful to the officers. She claimed her anger and frustration with defendant negatively influenced what she said to the officers. Doe further testified that after defendant broke her window on October 19, 2017, he did not do any of the things she told the officers he had done, such as take her cell phone, push her, detain her, or threaten her. Doe testified that on October 20, 2017, defendant was waiting for her after work in the parking lot, as he occasionally did, because they were planning to go to a haunted house and she had texted him to wait for her there after work. Doe admitted that during the period between the October incidents and the November letter to the court, she had spoken to defendant on the phone almost every day. She claimed she stopped talking to defendant in February or March 2018, two or three months before the trial.

Defendant’s ex-wife, C.H., testified for the prosecution that she was married to defendant from 2006 to 2014. In 2013, they had a physical altercation, during which defendant accused her of cheating. C.H. reported the incident to the police, moved out, and obtained a restraining order against defendant. During another incident in 2013, defendant lunged toward her, tried to grab her cell phone while she was in her car talking on the phone, and said, “‘Who are you f—ing talking to?’” The incident was reported to the police. C.H. obtained a no-contact order, after which in 2014, she reported to law enforcement that defendant was sending her texts, including one that said, “‘[Y]ou better not be f—ing with nobody else.’”

Investigator Robert Cornet testified for the prosecution as a domestic violence expert regarding the cycle of domestic violence. Investigator Cornet did not interview Doe or defendant.

III.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant contends he received constitutionally ineffective assistance from his trial counsel, Nicolas Estrada, on three occasions during his trial.

“‘In order to establish a claim of [IAC], defendant bears the burden of demonstrating, first, that counsel’s performance was deficient because it “fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms.” [Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s performance fell within the wide range of professional competence and that counsel’s actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If the record “sheds no light on why counsel acted or failed to act in the manner challenged,” an appellate claim of [IAC] must be rejected “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.” [Citations.] If a defendant meets the burden of establishing that counsel’s performance was deficient, he or she also must show that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Citation.]’” (People v. Lopez (2008) 42 Cal.4th 960, 966, citing People v. Ledesma (2006) 39 Cal.4th 641, 745-746.)

As explained below, we conclude defendant has failed to establish IAC. All of defendant’s IAC claims suffer from the same defect: The present record does not preclude the possibility that defense counsel’s actions were based upon reasonable strategic decisions. Unless the record reflects the reason for counsel’s actions or omissions, or precludes the possibility of a satisfactory explanation, we must reject a claim of ineffective assistance raised on appeal. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267; People v. Ledesma, supra, 39 Cal.4th at p. 746.) Such claims are more appropriately addressed in a habeas corpus proceeding. (People v. Mendoza Tello, supra, at pp. 266-267; People v. Ledesma, supra, at p. 746.)

A. Pitchess Motion

Defendant contends his trial counsel, Estrada, committed IAC by failing to file a Pitchess motion before trial. We disagree.

Before the trial, on March 14, 2018, defendant’s previous attorney, Mr. Hickey, informed the court that the prosecutor told him that the People’s domestic violence expert witness, Investigator Cornett, might “be involved or entangled in some sort of ethical violations, personnel investigation.” Hickey told the court that if the People intended to use Investigator Cornett as their expert witness, defendant intended to file a Brady and Pitchess motion to obtain discovery on Investigator Cornett’s credibility and the personnel investigation on him.

The prosecutor acknowledged that the day before, the prosecution had informed Hickey that there was an ongoing internal investigation regarding Investigator Cornett. The prosecutor advised the court that the People had no information regarding the internal investigation or access to such information. The prosecutor further stated that, because the People did not have any information other than the public information provided to defense counsel, any additional information would need to be acquired by defendant filing a Pitchess motion, and the People would join in the motion. The prosecutor said she had been unable to find a different domestic violence expert who was willing to travel to Indio for the trial.

Hickey informed the court that there had been an article in the local newspaper several weeks before regarding 25 deputies caught in an investigation involving cheating on the investigator exam. Investigator Cornett was one of the deputies named in the article, which reported that he had forwarded exam questions to other deputies in a document entitled, “‘Investigator Exam Questions.’” Investigator Cornett reportedly said he did not know the forwarded document contained investigator exam questions.

Hickey asserted that there was “absolute Brady material,” which was relevant to Investigator Cornett’s credibility and showed that he was willing to lie in order to achieve his objectives. Hickey said that if there was no way to obtain the information about Cornett, other than by filing a Pitchess request, then Hickey wanted a continuance to allow him to file a Pitchess motion. The trial court concluded the prosecution only had a vague notion of what the pending investigation entailed. Therefore, the prosecution did not have anything other than what the prosecutor told Hickey and, thus, Hickey would need to file a Pitchess motion.

Hickey agreed and said he would need an additional 16 days for the motion. The prosecutor stated she did not object to a continuance and agreed there was good cause for a continuance. Hickey stated that defendant might not want a continuance but Hickey believed it was “absolutely necessary to get access to that information.” The court permitted Hickey to discuss the matter with defendant and urged defendant to listen to his lawyer, adding: “[I]f you don’t have this information to impeach Mr. Cornett, you know, who knows what the impact will be on his testimony.” The court further stated that it would grant a continuance, if needed, for the purpose of filing a Pitchess motion.

After a brief recess, Hickey told the court he had discussed the matter with defendant, who said he wanted to go forward with his trial and did not wish to waive time. Therefore, Hickey requested the court to proceed with the trial without the domestic violence expert. Hickey further stated that if the court permitted Investigator Cornett to testify, Hickey believed he could not effectively defend defendant without access to the Pitchess information. Hickey requested a month continuance to file a Pitchess motion. Hickey alternatively suggested a one week continuance to allow the prosecution to find another domestic violence expert. The prosecutor said she had already contacted other experts and they had all declined because they were not willing to travel to Indio.

The court asked Hickey if he wanted a Pitchess hearing set for April 13, 2018 (in one month). Hickey said that was fine, but he knew defendant would object. The court stated it found good cause for setting the Pitchess hearing and continuing the trial, “because this is information that could be used to impeach the witness. Anytime you have evidence that would impeach the witness, that’s pretty significant.” Therefore, the court granted the continuance over defendant’s objection.

In response to the court asking if April 13, 2018, was acceptable for scheduling the Pitchess hearing, defendant blurted out, “Bullshit, man.” When told to be quiet, defendant said, “You all violating my rights. I’m ready to start trial. I keep wasting days of my life, my kids’ life. My kids in school, they need me. Come on. You need me sitting here—[¶] [¶] . . . I’m ready to start. You guys are wasting days of my life. I’m ready to start trial. Please grant me that wish. . . . [¶] [¶] I’ve got kids to support. My kids out there keep asking me, ‘Daddy, when you coming home?’” When the court reminded defendant that his behavior led to his current circumstances, defendant said, “I was ready to start trial, Your Honor. I’m ready. Please, sir. It’s my kids’ life. I know I put myself in bad positioning, but, please, I’m ready to start.”

The court explained that a continuance was necessary to allow Hickey to file a Pitchess motion in order to effectively represent defendant. The court accordingly set the Pitchess motion hearing date on April 13, 2018, over defendant’s objection, with trial set on May 1, 2018, if nothing was produced in response to the Pitchess motion. Otherwise, the trial was ordered to begin the trial within 60 days after the motion hearing.

The following Monday, on March 16, 2018, at a bail review hearing, Hickey informed the court that defendant had hired Estrada as his new attorney. After defendant confirmed that this was correct, the court continued the bail review hearing for three days. The court said it would substitute in Estrada at that time as defendant’s new attorney. At the continued bail hearing, when Estrada was substituted in as defendant’s attorney, Estrada said he would be ready for trial on May 1, 2018. There was no mention of the proposed Pitchess motion. The March 19, 2018, minute order states that the trial court vacated the April 13, 2018, hearing for a Pitchess motion.

These circumstances suggest that a Pitchess motion was not filed based upon the reasonable strategic decision to comply with defendant’s insistence not to file a Pitchess motion because it might delay his trial. Defendant stated he did not want any further trial delays, including any continuances caused by filing a Pitchess motion, regardless of his attorney’s insistence that the motion was necessary. A reasonable inference can thus be made from the record that defendant substituted out Hickey and replaced him with Estrada because Hickey had insisted, over defendant’s objection, that a Pitchess motion and continuance of the trial were necessary. It is also likely that Estrada did not file a Pitchess motion because defendant did not want him to, because of the possibility that doing so might result in further delay of defendant’s trial. We therefore reject defendant’s Pitchess IAC claim raised on appeal because the record does not expressly state the reason Estrada elected not to file a Pitchess motion. Also, there is a reasonable tactical explanation for Estrada not doing so.

B. Romero Motion

Defendant contends Estrada was ineffective in representing him by not arguing during sentencing that the court should grant his Romero motion and strike his 2006 prior strike conviction. We conclude defendant has not established IAC in this regard.

Before trial, defendant’s attorney, Hickey, filed a Romero motion requesting dismissal of defendant’s 2006 prior strike conviction for robbery. The People opposed defendant’s Romero motion. Hickey argued in his pretrial Romero motion that the charged offenses were minor, involving nonviolent disagreements with Doe, who partially recanted her statements to the police. Hickey requested that the court dismiss defendant’s prior strike because otherwise he would be sentenced to a long term which would prevent him from seeking counseling and therapy, and from returning to community commitments and his children.

In addition, Hickey argued that defendant lacked a serious criminal history following the 2006 prior strike. Hickey asserted defendant had only a few minor misdemeanor convictions during the past 12 years, including a conviction for misdemeanor theft in 2013 (§ 459), a couple of convictions for violating a court order in 2014 (§ 273.6), convictions in 2014 for misdemeanor battery against a spouse (§ 243, subd. (e)(1)) and for misdemeanor resisting an officer (§ 148), and a conviction for misdemeanor trespassing in 2015 (§ 602). Hickey argued that although defendant had a few minor brushes with the law since 2006, none were violent, and those around him considered defendant loving and caring and not a threat. Hickey concluded defendant thus was outside the spirit of the “Three Strikes” law. Hickey also argued that, because defendant’s charged offenses were not violent and did not cause injuries, defendant’s sentence would be egregiously excessive, unless the court struck his prior strike conviction.

The prosecutor disagreed, arguing defendant’s prior misdemeanors involved domestic violence-related crimes against his ex-wife, and every few years defendant committed new offenses, with his charged crimes involving domestic violence. The prosecutor asserted that defendant continued to commit dangerous acts, including the charged offenses of vandalism to a garage while the home was inhabited. Also, defendant prevented Doe from calling the police for help, showed up at Doe’s work, and believed his conduct was not wrongful. In addition, defendant’s criminal acts committed after his 2006 prior strike conviction, increased in seriousness over the years. The prosecutor therefore requested the court to deny defendant’s Romero motion.

The trial court concluded that defendant had a “fair amount of history of violence,” including stalking convictions and a 2006 robbery conviction. In addition, his current case included serious convictions. A judge previously told defendant to stay away from Doe and he did not do so. The court in the instant case concluded it was “clear” defendant was “not going to do anything that the [c]ourt tells him to do. . . . [H]e’s basically not complying with anything that the [c]ourt has ordered him to do.” The court stated defendant was “the prime candidate for being treated as a strike defendant.” The court noted he had multiple convictions, he could not deal with rejection by females, and he reacts violently toward females. The court added that, although defendant had not yet been to prison, “the court system has not treated him as seriously as it should have in the first place.” The court concluded by stating “[t]he public needs to be protected from someone like him. He’s a walking time bomb with respect to any female.”

The court denied defendant’s pretrial Romero motion without prejudice, adding that the court would allow defendant to renew his motion at the end of the case if defendant had something he wanted to add in support of his Romero motion. At the end of the trial, defendant asked the court if it was going to review his Romero motion before sentencing. The court agreed to do so.

During the sentencing hearing on July 13, 2018, the court noted defendant sent the court a letter requesting the court to dismiss his prior strike conviction. The trial court stated it had reviewed defendant’s letter, his pretrial Romero motion, and defendant’s family’s character letters. The prosecutor and Estrada both submitted on the renewed pretrial Romero motion and opposition, without providing any oral argument. The court denied defendant’s posttrial renewed Romero motion, concluding defendant did not fall outside of the spirit of the Three Strikes law because he had three violent misdemeanor convictions in 2014, and had violated his probation multiple times.

Defendant argues Estrada provided ineffective assistance by failing to file a posttrial Romero motion and by failing to provide any oral argument when the court considered defendant’s request for Romero relief. Defendant asserts that Estrada should have argued that defendant’s prior strike conviction was remote in time and his offenses committed between his 2006 prior strike conviction and present offenses, were all misdemeanors. But these arguments were already raised and rejected by the trial court when it heard defendant’s pretrial Romero motion.

We conclude defendant has not established IAC because defendant has not demonstrated that Estrada’s representation was deficient. (People v. Lopez, supra, 42 Cal.4th at p. 966; People v. Ledesma, supra, 39 Cal.4th at pp. 745-746.) The record on appeal does not preclude the possibility that Estrada’s acts of not filing or arguing a posttrial Romero motion were based upon reasonable strategic decisions. Rather, the record supports a reasonable inference that during sentencing, Estrada made a reasonable tactical decision to rely on the previously filed Romero motion and argument. The trial court had previously denied the pretrial Romero motion and there were no compelling new grounds or arguments to add to the previous Romero motion. During the hearing on the pretrial Romero motion, the trial court had made it clear that it believed defendant fell well within the spirit of the Three Strikes law. Any refiled Romero motion would be heard by that same judge, and therefore Estrada could have reasonably concluded that it was highly unlikely that the trial court would grant a posttrial refiled Romero motion.

Furthermore, Estrada’s failure to file a Romero motion posttrial was not prejudicial because defendant filed a letter requesting Romero relief, which the trial court considered during sentencing in lieu of a refiled Romero motion. Estrada’s failure to orally argue during the hearing on defendant’s renewed Romero motion was also not prejudicial because the trial court stated it had reviewed defendant’s pretrial Romero motion and the People’s opposition, in addition to defendant’s letter requesting the court to strike his prior strike conviction. Estrada could have reasonably concluded that any additional argument would not have added anything and would have been futile.

C. Closing Argument

Defendant contends Estrada was ineffective in failing to zealously argue his case during closing argument. The prosecutor provided lengthy closing argument, amounting to 31 pages of reporter’s transcript, whereas Estrada’s closing argument was extremely brief. Estrada argued:

“So proof beyond a reasonable doubt. That is the burden of proof that [the prosecutor] must meet to prove the charges against [defendant]. He was not required to prove or disprove anything. [Defendant] was not required to testify. The entire burden of proving all the charges beyond a reasonable doubt is on [the prosecution].

“[The prosecution] also has the burden of proving beyond a reasonable doubt each and every element of each offense charged. If [the prosecutor] fails to meet the burden of proof, it is your duty to acquit.

“The evidence shows that [defendant] did not commit any of the charges but one. This case is about a verbal dispute between a boyfriend and a girlfriend. [Defendant] admits breaking the window. However, the rest of the alleged counts have not been established; and, therefore, he should not be convicted of those charges.

“In this case, [the prosecutor’s] chocolate chip cookie never left the cookie jar. This case is an example of [defendant] being overcharged by the district attorney’s office. And, therefore, your duty here as jurors is to acquit [defendant] of all charges except for the vandalism charge for the window.”

Defendant argues that Estrada’s closing argument was deficient because he did not expand on the defense theory of the case, did not argue the lack of the strength and credibility of the prosecution’s witnesses, and did not discuss how the prosecution failed to establish the elements of each charged crime. Defendant also asserts that Estrada could have argued that the domestic violence expert’s theory was inapplicable because defendant was not a domestic abuser and Doe did not suffer any harm.

The right to effective assistance of counsel extends to closing arguments. (Yarborough v. Gentry (2003) 540 U.S. 1, 5.) “Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel’s tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage.” (Id. at pp. 5-6.) Closing arguments should sharpen and clarify the issues. But “which issues to sharpen and how best to clarify them are questions with many reasonable answers. Indeed, it might sometimes make sense to forgo closing argument altogether. [Citation.] Judicial review of a defense attorney’s summation is therefore highly deferential.” (Id. at p. 6.)

There is a “strong presumption that counsel’s actions were sound trial strategy under the circumstances prevailing at trial. [Citations.] . . . The decision of how to argue to the jury after the presentation of evidence is inherently tactical.” (People v. Freeman (1994) 8 Cal.4th 450, 498.) Here, Estrada’s closing argument comes within the permissible range of competent representation.

As the California Supreme Court noted in People v. Williams (1997) 16 Cal.4th 153, 265, reversals for IAC “during closing argument rarely occur; when they do, it is due to an argument against the client which concedes guilt, withdraws a crucial defense, or relies on an illegal defense.” (People v. Moore (1988) 201 Cal.App.3d 51, 57; accord, People v. Williams, supra, at p. 265.) Defendant is not asserting any of these circumstances. Rather, defendant is arguing that, because Estrada’s closing argument was brief and did not expand upon the evidence and flaws in the prosecution’s case, Estrada failed to zealously argue defendant’s case during closing argument.

The court in People v. Padilla (1995) 11 Cal.4th 891, 949, rejected a similar IAC challenge, in which the defendant argued that, instead of highlighting discrepancies in testimony, “as competent representation required, counsel’s summation of the evidence was brief, disjointed, cursory, unfocused, and often beside the point.” The Padilla court concluded that, “[t]he jury scarcely needed a detailed road map in the form of closing argument to understand and evaluate the meaning of the evidence before it . . . .” (Ibid.)

In People v. Cudjo (1993) 6 Cal.4th 585, the defendant also objected to his counsel’s perfunctory closing argument as “brief (eight pages of transcript), perfunctory, unfocussed, and generally a ‘dismal performance.’” (Id. at p. 634.) The Cudjo court held there was no prejudicial error because “[t]he effectiveness of an advocate’s oral presentation is difficult to judge accurately from a written transcript, and the length of an argument is not a sound measure of its quality. Although defense counsel’s argument in this case appears to have been somewhat lacking in clarity, not to mention eloquence, we are not persuaded that it fell below the standard of reasonably competent representation or that there is a reasonable probability that a better presentation would have resulted in a more favorable penalty verdict.” (People v. Cudjo, supra, at pp. 634-635.)

In People v. Espinoza (1979) 99 Cal.App.3d 44, in which the defendant was charged with robbery, defense counsel did not even make a closing argument to the jury. The court in Espinoza rejected the defendant’s IAC objection. (Id. at p. 48.) The Espinoza court reasoned that the defendant’s attorney “did not want to give the prosecutor an opportunity to make a fiery rebuttal. Basically, defense counsel concluded that the prosecutor had undertried the case and the best response was to waive closing argument. Under the circumstances of this case, it was a judgment call well within his prerogative to make.” (Ibid.)

As the court in Espinoza noted, this court’s analysis of whether a defense attorney’s closing argument constitutes IAC “cannot be made in a doctrinaire fashion, speculating on the possible theories which defense counsel might have asserted in his closing argument. The trial of a case is an art form. Experienced counsel develop a feel for the subtleties or nuances of a case as it proceeds which may affect the style of advocacy or counsel’s judgment on a given issue during trial. Matters which may appear to be insignificant on appeal or which may not even be reflected on the record . . . may play, independently or collectively, an important part on the tactical choices made by a sensitive and skilled trial lawyer.” (People v. Espinoza, supra, 99 Cal.App.3d at p. 47.)

In the instant case, there were reasonable tactical reasons for Estrada providing a brief closing argument focusing on defendant’s admitted guilt of the lesser included vandalism offense of breaking Doe’s window. By doing so, Estrada could have reasonably intended to divert the jury’s attention away from the domestic violence allegations and bolster defendant’s credibility, by focusing on defendant’s willingness to admit an act of vandalism. Estrada’s brief argument was also tactically beneficial in limiting the scope of the prosecutor’s rebuttal. As a consequence of Estrada’s brief closing argument, the prosecutor’s rebuttal argument was also brief and did not accentuate evidence of defendant’s violent acts, which the prosecutor could have otherwise exploited to great advantage in rebuttal.

Even if there were additional arguments that would have supported the defense, it does not follow that counsel was incompetent for failing to include them in closing argument. (Yarborough v. Gentry, supra, 540 U.S. at p. 7.) This is because “judicious selection of arguments for summation is a core exercise of defense counsel’s discretion.” (Id. at p. 8.) As the court in Yarborough noted, “[e]ven if some of the arguments would unquestionably have supported the defense, it does not follow that counsel was incompetent for failing to include them. Focusing on a small number of key points may be more persuasive than a shotgun approach.” (Id. at p. 7.) Therefore, “[w]hen counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect. See Strickland [v. Washington (1984)] 466 U.S. [668,] 690 (counsel is ‘strongly presumed’ to make decisions in the exercise of professional judgment). That presumption has particular force where a petitioner bases his ineffective-assistance claim solely on the trial record, creating a situation in which a court ‘may have no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive.’ [Citation.]” (Yarborough v. Gentry, supra, at p. 8.) We conclude that, even though Estrada’s closing argument was brief, defendant has not established on appeal that Estrada’s closing argument constitutes IAC.

IV.

DENIAL OF DEFENDANT’S ROMERO MOTION

Defendant contends the trial court abused its discretion by denying his Romero motion. The procedural background regarding defendant’s Romero motion and renewed Romero request is summarized above in section III. B. of this opinion.

Defendant argues the court should have granted his Romero motion because his 2006 prior strike conviction was remote, and his criminal record during the period between his 2006 conviction and the charged offenses consisted of only misdemeanors. Defendant maintains that the misdemeanors were also not violent offenses within the meaning of section 667.5, subdivision (c), because they were misdemeanors, not felonies. Defendant also argues that, even if the court struck his 2006 prior strike conviction, his sentence would still be substantial, because of the number of his current convictions.

A trial court has discretion to dismiss a strike prior under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) The trial court must consider “‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’” (People v. Carmony (2004) 33 Cal.4th 367, 377.)

We apply the abuse of discretion standard when reviewing a trial court’s refusal to dismiss a prior conviction allegation under section 1385. (People v. Carmony, supra, 33 Cal.4th at p. 375.) “This standard is deferential. . . . [I]t asks in substance whether the ruling in question ‘falls outside the bounds of reason’ under the applicable law and the relevant facts.” (People v. Williams (1998) 17 Cal.4th 148, 162.) “[T]he circumstances must be ‘extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record.’” (People v. Carmony, supra, at p. 378.)

Defendant has failed to show the trial court’s decision denying his pretrial Romero motion and posttrial renewed Romero request during sentencing was irrational or arbitrary. Defendant’s criminal history continued after his 2006 strike conviction for robbery in 2006, and therefore his 2006 prior strike conviction was not remote. During that interim period, defendant had several misdemeanor convictions, including misdemeanor burglary in 2013 (§ 459), misdemeanor battery against a spouse in 2014 (§ 243, subd. (e)(1)), two violations of a domestic violence restraining order in 2014 (§ 273.6), and misdemeanor resisting an officer in 2014 (§ 148). Also, in 2015, defendant was convicted of trespassing (§ 602).

Most of these crimes involved domestic violence, as did his current convictions, which included acts of defendant crashing his car into Doe’s garage, throwing a hand weight through Doe’s bedroom window, throwing a rock through another window at Doe’s home, and threatening and harassing her continuously over a sustained period of time. Defendant also repeatedly violated the terms of his probation, demonstrating that prior attempts at rehabilitation and deterrence were unsuccessful.

We conclude that defendant’s criminal history and the seriousness of his current convictions, demonstrate a pattern of domestic violence and establish that defendant did not fall outside the spirit of the Three Strikes law. The trial court therefore did not abuse its discretion in denying defendant’s Romero motion.

V.

DISCRETION TO STRIKE PRIOR SERIOUS FELONY CONVICTION

Defendant contends that SB 1393 requires this case to be remanded so that the trial court can exercise its newly authorized discretion to strike defendant’s 2006 prior serious felony conviction under recently amended sections 667 and 1385. We agree SB 1393 applies retroactively and that remand is necessary to allow the court to exercise its discretion and decide whether to strike defendant’s prior serious felony conviction.

At the time of defendant’s resentencing hearing on July 13, 2018, former section 1385 included the following provision: “(b) This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [s]ection 667.” This provision was deleted from section 1385 by SB 1393, enacted on September 30, 2018, and in effect as of January 1, 2019. As amended, section 1385, subdivision (b) gives the trial court discretion to dismiss or strike a prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) The trial court therefore is no longer prohibited from striking prior serious felony convictions during sentencing.

SB 1393 applies retroactively to all cases in which the trial court imposed a five-year enhancement for a prior serious felony conviction, provided the judgment was not final when SB 1393 became effective on January 1, 2019. (People v. Garcia, supra, 28 Cal.App.5th at p. 972.) The provision applies retroactively because, “[w]hen an amendatory statute either lessens the punishment for a crime or, as [SB] 1393 does, ‘“vests in the trial court discretion to impose either the same penalty as under the former law or a lesser penalty,”’ it is reasonable for courts to infer, absent evidence to the contrary and as a matter of statutory construction, that the Legislature intended the amendatory statute to retroactively apply to the fullest extent constitutionally permissible—that is, to all cases not final when the statute becomes effective.” (Ibid.)

The People agree that SB 1393 applies retroactively. Therefore, remand is appropriate to allow the trial court to consider whether to strike defendant’s prior serious felony conviction in the interest of justice, “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 a firearm enhancement.” (People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) In other words, “if ‘“the record shows that the trial court would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required.”’” (Ibid.; see also Romero, supra, 13 Cal.4th at p. 530, fn. 13.)

Here, the trial court’s sentencing choices and statements during sentencing do not foreclose the possibility the trial court would strike defendant’s prior serious felony conviction for sentencing purposes if it had the discretion to do so. (People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896.) Remand is thus appropriate to allow the trial court to exercise its discretion in determining whether to strike defendant’s prior serious felony enhancement under SB 1393.

VI.

THE ABSTRACT OF JUDGMENT SHOULD BE AMENDED

Defendant maintains, and the People concede, the abstract of judgment inaccurately describes count 2 as “vandalism > $5000 or over.” Defendant requests this court to order the abstract of judgment to be amended to state: “Vandalism > $400 or over.”

Upon reviewing the record, we agree the abstract incorrectly describes count 2 as “vandalism > $5000 or over.” The record shows that defendant was charged with vandalism over $400, not $5,000, and the jury found that the amount of vandalism was greater than $400. The trial court thus should amend the abstract of judgment to conform with the oral pronouncement of the judgment, to show that defendant was convicted in count 2 of vandalism greater than $400. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [the Court of Appeal may correct an abstract of judgment that does not accurately reflect the oral judgment of a sentencing court].)

VII.

IMPOSITION OF FINES AND FEES

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant contends the trial court violated his constitutional right to due process by imposing a $2,000 state restitution fine (§ 1202.4, subd. (b)) and a stayed $2,000 parole revocation fine (§ 1202.45) without first assessing his ability to pay. Defendant is not challenging the other court imposed fees and assessments. The People argue defendant forfeited his objection to the restitution fine and parole revocation fine by not objecting in the trial court. We agree.

In People v. Castellano (2019) 33 Cal.App.5th 485, the court held the defendant did not forfeit his objection to imposition of fines, fees, and assessments without an ability-to-pay hearing. (Id. at p. 489.) The Castellano court explained that when the trial court sentenced the defendant, “Dueñas had not yet been decided; and no California court prior to Dueñas had held it was unconstitutional to impose fines, fees or assessments without a determination of the defendant’s ability to pay. Moreover, none of the statutes authorizing the imposition of the fines, fees or assessments at issue authorized the court’s consideration of a defendant’s ability to pay. Indeed . . . in the case of the restitution fine, Penal Code section 1202.4, subdivision (c), expressly precluded consideration of the defendant’s inability to pay. When, as here, the defendant’s challenge on direct appeal is based on a newly announced constitutional principle that could not reasonably have been anticipated at the time of trial, reviewing courts have declined to find forfeiture.” (People v. Castellano, supra, at p. 489; see People v. Jones (2019) 36 Cal.App.5th 1028, 1033; see generally People v. Brooks (2017) 3 Cal.5th 1, 92 [“‘[r]eviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence’”]; but see People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154.)

Castellano and other post- Dueñas cases that imposed minimum restitution fines are thus distinguishable from the instant case with regard to the issue of forfeiture because in those cases, the trial court imposed the minimum statutory restitution fine, whereas the restitution fine imposed in the instant case exceeded the minimum statutory fine. Section 1202.4, subdivision (c) states, in relevant part: “The court shall impose the restitution fine unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. A defendant’s inability to pay shall not be considered a compelling and extraordinary reason not to impose a restitution fine. Inability to pay may be considered only in increasing the amount of the restitution fine in excess of the minimum fine pursuant to paragraph (1) of subdivision (b).” (Italics added.)

Subdivision (c) of section 1202.4 thus states the trial court is barred from considering the defendant’s inability to pay the minimum authorized restitution fines. But section 1202.4 does not preclude the trial court from considering ability to pay when imposing a restitution fine exceeding the statutorily authorized minimum amount. Dueñas, which involves imposition of the minimum statutory restitution fine, thus does not provide a newly announced constitutional principle applicable to cases involving imposition of restitution fines exceeding the statutory minimum. Therefore, because there would be no reason under section 1202.4 not to object based on inability to pay a restitution fine exceeding the statutory minimum, failure to object in the trial court forfeits the objection on appeal. As concluded in People v. Aviles (2019) 39 Cal.App.5th 1055 “[e]ven if Dueñas applied to this case, defendant forfeited his ability to pay challenge because he failed to object to the amounts imposed at the sentencing hearing.” (People v. Aviles, supra, at p. 1073, citing People v. Frandsen, supra, 33 Cal.App.5th at p. 1153; People v. Bipialaka (2019) 34 Cal.App.5th 455, 464.) Nevertheless, because the issue is of a constitutional nature, we will address defendant’s objection to the fines on the merits.

Defendant argues that under Dueñas, a stay is necessary because “using the criminal process to collect a fine” a defendant cannot pay is unconstitutional. (Dueñas, supra, 30 Cal.App.5th at p 1160.) Dueñas involved an unemployed, homeless mother with cerebral palsy, whose family, which included two young children, was unable to afford even basic necessities due to poverty and the inability to work. (Id. at pp. 1060-1161.) Dueñas’s inability to pay several juvenile citations had resulted in suspension of her driver’s license, which led to a series of misdemeanor convictions over the years for driving with a suspended license and additional court fees she was also unable to pay. (Id. at p. 1161.) Dueñas routinely served time in jail in lieu of paying the fines she owed and was sent to collections on other fees related to her court appearances. (Ibid.)

After pleading no contest to yet another misdemeanor charge of driving with a suspended license, the trial court imposed on Dueñas certain assessments and a $150 restitution fine, the minimum amount at the time, required under section 1202.4, subdivision (b). The trial court rejected Dueñas’s argument that the imposition of the assessments and the fine without consideration of her ability to pay them violated her constitutional rights to due process and equal protection. (Dueñas, supra, 30 Cal.App.5th at p. 1163.) The Court of Appeal in Dueñas reversed, holding that “the assessment provisions of Government Code section 70373 and . . . section 1465.8, if imposed without a determination that the defendant is able to pay, are . . . fundamentally unfair[, and] imposing these assessments upon indigent defendants without a determination that they have the present ability to pay violates due process under both the United States Constitution and the California Constitution.” (Dueñas, supra, at p. 1168.) The Dueñas court also held that imposition of a minimum restitution fine without consideration of Dueñas’s ability to pay violated due process. (Id. at pp. 1169-1172.) The Dueñas court reversed the order imposing the fines, fees, and assessments, and directed the trial court to stay the execution of the restitution fine “unless and until the People prove that Dueñas has the present ability to pay it.” (Id. at pp. 1172-1173.)

The People argue Dueñas incorrectly evaluates the constitutionality of defendant’s restitution fine objection based on due process principles, rather than under the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. We agree, for the reasons stated in People v. Caceres (2019) 39 Cal.App.5th 917 (Caceres) and People v. Aviles, supra, 39 Cal.App.5th at pages 1061-1064 (See also People v. Kopp (2019) 38 Cal.App.5th 47, 96, review granted Nov. 13, 2019, S257844 (Kopp)). In Caceres, the court declined to follow Dueñas’s holding that the defendant’s right to due process was violated by imposing fees, assessments, and fines without holding an ability-to-pay hearing. The Caceres court concluded that the facts in Dueñas were “peculiar” and “extreme.” Caceres therefore did not reach whether Dueñas was correctly decided as to those extreme facts, because the facts in Caceres were not as extreme or similar. (Caceres, supra, at p. 926.) Such is also the case in the instant case.

The Caceres court further concluded regarding the restitution fine that, “[b]y holding that trial courts must tailor the imposition of costs to each defendant’s ability to pay, Dueñas in effect proposes a ‘“less drastic remedial alternative[]”’ [citation] to the current statutory scheme, which is more than what due process requires. Given Dueñas’s unique facts, we eschew a conclusion that the entire system of imposing postconviction fees and fines is irrational and contravenes due process. [¶] In light of our concerns with the due process analysis in Dueñas, we decline to apply its broad holding requiring trial courts in all cases to determine a defendant’s ability to pay before imposing court assessments or restitution fines.” (Caceres, supra, 39 Cal.App.5th at p. 928.) The Caceres court held that, to the extent the defendant in Caceres could not pay the imposed costs and was subject to a civil judgment, “we are not persuaded that such a consequence violates due process. In sum, the trial court did not violate Caceres’s due process rights by imposing the assessments and restitution fine without first ascertaining his ability to pay them.” (Id. at p. 929; see also People v. Hicks (2019) 40 Cal.App.5th 320, 325-329, review granted Nov. 26, 2019, S258946 (Hicks); Kopp, supra, 38 Cal.App.5th at pp. 96-97.)

The court in Hicks, supra, 40 Cal.App.5th 320, also rejects the due process analysis in Dueñas. (Hicks, supra, at p. 329.) Citing Kopp, the court in Hicks concludes “‘[T]here is no due process requirement that the court hold an ability to pay hearing before imposing a punitive fine and only impose the fine if it determines the defendant can afford to pay it.’” (Hicks, supra, at p. 329, citing Kopp, supra, 38 Cal.App.5th at pp. 96-97.) We likewise reject Dueñas, to the extent that Dueñas held that under due process, the trial court must determine in all cases a defendant’s ability to pay before imposing court fines, such as restitution and parole revocation fines. (Caceres, supra, 39 Cal.App.5th at pp. 926-927; Hicks, supra, at pp. 327-329; Kopp, supra, at pp. 96-97.)

Unlike in Caceres, Hicks, and Dueñas, here, the trial court imposed punitive fines exceeding the statutory minimum. We therefore address whether imposing the fines requires an ability-to-pay hearing. The court in Hicks holds that, regardless of whether the fine is a minimum fine, there is no “across-the-board prohibition” of imposition of fines on indigent defendants. (Caceres, supra, 39 Cal.App.5th at p. 926.) In addition, the court in Aviles states that a constitutional challenge to the imposition of punitive fines “should be based on the [E]xcessive [F]ines [C]lause of the Eighth Amendment instead of the due process rationale utilized in Dueñas.” (People v. Aviles, supra, 39 Cal.App.5th at p. 1060.) This is because the Excessive Fines Clause provides “an explicit textual source of constitutional protection against” a specific harm, which is narrower than the due process clause. (Graham v. Connor (1989) 490 U.S. 386, 395.)

“Like the Eighth Amendment’s proscriptions of ‘cruel and unusual punishment’ and ‘[e]xcessive bail,’ the protection against excessive fines guards against abuses of government’s punitive or criminal-law-enforcement authority. This safeguard, we hold, is ‘fundamental to our scheme of ordered liberty,’ with ‘dee[p] root[s] in [our] history and tradition.’ [Citation.] The Excessive Fines Clause is therefore incorporated by the [d]ue [p]rocess [c]lause of the Fourteenth Amendment.” (Timbs v. Indiana (2019) 139 S.Ct. 682, 686-687; see also, People v. Aviles, supra, 39 Cal.App.5th 1069; Kopp, supra, 38 Cal.App.5th at p. 97.)

Under the Excessive Fines Clause, which prohibits the imposition of excessive fines, proportionality is key: The amount of the fine must bear some relationship to the gravity of the offense that it is designed to punish. (United States v. Bajakajian (1998) 524 U.S. 321, 334; see also City and County of San Francisco v. Sainez (2000) 77 Cal.App.4th 1302, 1321.) The defendant’s ability to pay a punitive fine is also an important factor to be considered under the Excessive Fines Clause. (Dueñas, supra, 30 Cal.App.5th at p. 1171, fn. 8; City and County of San Francisco v. Sainez, supra, at p. 1322.)

The United States Supreme Court set out the following four factors to be considered when evaluating whether a fine is excessive under the Excessive Fines Clause: (1) the defendant’s culpability; (2) the relationship between the harm and the penalty; (3) the penalties imposed in similar statutes; and (4) the defendant’s ability to pay. (United States v. Bajakajian, supra, 524 U.S. at pp. 337-338; People v. Aviles, supra, 39 Cal.App.5th at p. 1070; Kopp, supra, 38 Cal.App.5th at p. 97; People ex rel. Lockyer v. R.J. Reynolds Tobacco Co., supra, 37 Cal.4th at p. 728.) The defendant bears the burden of establishing the fine constitutes an unconstitutional excessive fine. (United States v. Cheeseman (3rd Cir. 2010) 600 F.3d 270, 283; People v. Contreras (2018) 4 Cal.5th 349, 395 [defendant has considerable burden to show punishment is cruel and unusual].) This court may review de novo whether defendant’s fines are excessive under the Eighth Amendment. (United States v. Bajakajian, supra, at p. 336, fn. 10; People v. Aviles, supra, at p. 1072.)

We conclude that, because defendant’s fines are not grossly disproportionate to his level of culpability and the harm he caused, the fines are not excessive under the Eighth Amendment, Excessive Fines Clause. (People v. Aviles, supra, 39 Cal.App.5th at p. 1072.) Defendant’s charged offenses included various acts of domestic violence against his girlfriend, resulting in defendant being sentenced to 14 years and four months in state prison. Defendant was convicted of vandalism of over $400; dissuading a witness by the use of force or threat of force and violence; stalking in violation of a restraining order; stalking; violating a criminal protective order within seven years of a prior conviction and involving an act of violence; simple assault; and misdemeanor vandalism. Defendant’s restitution fine is about the same amount as the cost of repairing the two windows defendant broke ($400) and the cost of repairing the Doe’s garage ($1,200 to $1,300).

Furthermore, a reasonable inference can be made from the record that the court considered defendant’s ability to pay and reasonably found that defendant would be able to pay the fines. The probation department recommended substantially greater fines, which the trial court indicated it reduced, taking into consideration defendant’s ability to pay the fines. In determining defendant’s ability to pay the fines, the trial court could consider defendant’s future earning capacity, including the ability to earn prison wages. (See People v. DeFrance (2008) 167 Cal.App.4th 486, 505 [defendant sentenced to prison did not show absolute inability to pay $10,000 restitution fine even though prison wages would make it difficult for him to pay the fine, it would take a very long time, and the fine might never be paid]; People v. Ramirez (1995) 39 Cal.App.4th 1369, 1377 [a trial court may consider the defendant’s future ability to pay, including his ability to earn wages while in prison]; People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [“defendant’s ability to obtain prison wages and to earn money after his release from custody” are properly considered when determining whether a defendant has the ability to pay].)

We conclude the court reasonably could have concluded defendant would have the opportunity to earn income during his 14-year-four-month term in prison, as well as after his release from custody. The record shows that, at the time of sentencing, defendant was 35 years old and had an Associate Degree and Bachelor of Science degree. He was employed at the time of his arrest, earning $1,500 a month. We therefore conclude the trial court considered defendant’s ability to pay and did not abuse its discretion in imposing the $2,000 state restitution fine and $2,000 parole revocation fine.

Furthermore, even assuming the trial court erred in not conducting a hearing on defendant’s ability to pay the fines, any such error was harmless because, as discussed above, the record demonstrates that defendant would be able to pay the fees. Defendant has ample time to pay the fines “from a readily available source of income while incarcerated” and from income likely earned after he completes his sentence. (People v. Johnson (2019) 35 Cal.App.5th 134, 140; People v. Jones, supra, 36 Cal.App.5th at p. 1035.)

VIII.

DISPOSITION

The judgment of conviction is affirmed. The sentence is vacated and the matter is remanded with directions the trial court exercise its discretion to determine whether to strike defendant’s 2006 prior serious felony conviction under recently amended sections 667 subdivision (a) and 1385, subdivision (b). After the trial court exercises its discretion, it shall forward a certified copy of the amended and/or corrected abstract of judgment to the Department of Corrections and Rehabilitation.

The trial court is also directed to amend the abstract of judgment to correctly describe defendant’s count 2 conviction as “vandalism greater than $400.”

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

I concur:

FIELDS

J.

[E070948, People v. Hyatt]

RAPHAEL, J., Concurring.

I join the entire opinion except that, as to the due process challenge to the imposition to fines under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), I would reach no further than holding that the challenge is forfeited.

I would not address the due process objection on the merits, and I would not reach further to decide whether Dueñas was correctly decided; whether the Eighth Amendment is available to challenge a trial court’s imposition of a fine, fee, or assessment without a determination of a defendant’s ability to pay it; and whether the Eighth Amendment provides the exclusive vehicle for such a procedural challenge, even if it provides for substantive review of the penalty ultimately imposed. (See Hale v. Morgan (1978) 22 Cal.3d 388, 397-405 [ due process clauses of federal and state constitutions invalidate applications of statute that permitted “arbitrary, excessive, and unreasonable” penalties against landlords; penalties were “mandatory, fixed, substantial, and cumulative,” applied against persons of “disparate culpability,” and were distinguishable from statutes that “require the consideration of various ameliorating factors”].)

I note that in this case, the People argue that the Eighth Amendment is the sole constitutional means for a challenge to a restitution fine, but concede that the due process clause applies to “non-punitive fines to pay for access to justice” such as assessments for

court operations and court facilities, and that the People “do[] not seek to uphold the imposition of these assessments on those who have no ability to pay.”

RAPHAEL

J.

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

Opinion on transfer from Supreme Court; On rehearing

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 RENE LOPEZ,

Defendant and Appellant.

H043323

(Santa Clara County

Super. Ct. No. C1526411)
Defendant Daniel Rene Lopez pleaded no contest to one count of transportation, sale, or distribution of GHB (also known as gamma hydroxybutyric acid) (Health & Saf. Code, § 11352, subd. (a); see id., § 11054, subd. (e)(3)) and one count of possessing methamphetamine for sale (§ 11378). Defendant also admitted allegations that he possessed 28.5 grams or more of methamphetamine (Pen. Code, § 1203.073, subd. (b)(2)) and had a prior drug conviction (former § 11370.2). The trial court imposed a split sentence of six years eight months, with the first four years to be served in jail and the remaining two years eight months to be served under mandatory supervision (Pen. Code, § 1170, subd. (h)(5)(B)).

On appeal, defendant challenged a condition of his mandatory supervision that provides that his electronic devices, including his cell phones, computers, and notepads, are subject to search and forensic analysis, and that requires him to provide passcodes to conduct those searches. He contended the condition was unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) and was unconstitutionally overbroad.

On January 9, 2018, we affirmed the judgment. Upon a petition by defendant, the California Supreme Court granted review (case No. S246632) and later transferred the matter to this court with directions to vacate our decision and to reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.).

We have vacated our previous decision by separate order. Having reconsidered the cause in light of Ricardo P., we find the mandatory supervision condition at issue proper.

In a petition for rehearing, defendant for the first time contends that the enhancement under former section 11370.2 for the prior drug conviction must be stricken due to a change in the law that applies retroactively to him, and that the matter should be remanded for resentencing. The Attorney General concedes that amended section 11370.2 applies to defendant but contends that his claim is barred because he failed to obtain a certificate of probable cause. For reasons that we will explain, we will reverse the judgment and remand the matter to the trial court with directions to strike the enhancement and resentence defendant.

I. FACTS & PROCEDURAL HISTORY
II.
A. Charges and Plea
B.
Defendant was charged in a first amended felony complaint with four felony drug offenses: transportation, sale, or distribution of GHB (§ 11352, subd. (a); count 1); possession of GHB for sale (§ 11351; count 2); transportation, sale, or distribution of methamphetamine (§ 11379, subd. (a); count 3); and possession of methamphetamine for sale (§ 11378; count 4). The prosecution alleged that defendant possessed 28.5 grams or more of methamphetamine (Pen. Code, § 1203.073, subd. (b)(2)). At the time of the offenses, defendant was on mandatory supervision for a prior felony conviction for possessing a controlled substance for sale (§ 11378) in Santa Clara County Superior Court case No. C1242369. The first amended complaint also alleged that defendant had six prior drug convictions within the meaning of former section 11370.2, subdivision (b)—five prior convictions for possession of a controlled substance for sale (§ 11378) and one prior conviction for transportation for sale of a controlled substance (§ 11379, subd. (a))—and that defendant had served four prior prison terms (Pen. Code, § 667.5, subd. (b)).

Pursuant to a negotiated disposition, defendant pleaded no contest to transportation, sale, or distribution of GHB (count 1) and to possession of methamphetamine for sale (count 4). Defendant also admitted he possessed 28.5 grams or more of methamphetamine and that he had one prior conviction for possession of a controlled substance for sale (§ 11378) within the meaning of former section 11370.2. Defendant entered his pleas and admission with the understanding that he would receive a sentence of six years eight months and that he would spend the first four years in jail and the last two years eight months under mandatory supervision (Pen. Code, § 1170, subd. (h)(5)(B)). The parties stipulated to a factual basis for the plea and agreed that the remaining counts and enhancements would be dismissed at sentencing.

C. Sentencing Hearing
D.
In February 2016, the trial court sentenced defendant in accordance with the plea agreement. The sentence was based on the three-year lower term for transportation, sale, or distribution of GHB (count 1); three years consecutive for the prior drug conviction enhancement (former § 11370.2); and eight months consecutive for possession of methamphetamine for sale (count 4). The trial court made other orders that are not at issue on appeal and dismissed the remaining counts and enhancements.

The probation department recommended the trial court impose several conditions of mandatory supervision, including that “defendant’s computer and all other electronic devices (including but not limited to cellular telephones, laptop computers or notepads) shall be subject to Forensic Analysis search.”

Defense counsel objected to the electronic devices condition, stating: “Given that there was a phone involved in this case we will not object to a search of the phone, however we do object to all electronic devices being include[d] as overly broad. There is no nexus with the underlying charge.” (Italics added.) In response to an inquiry by the court, defense counsel clarified that the objection applied to computers and “[a]nything that’s not a phone.” (Italics added.)

The prosecutor responded that defendant would be subject to a general search condition, which “includes any and all property . . . , including electronic devices.”

The trial court stated, “[I]n today’s day and age everyone seems to have some kind of electronic equipment. And it seems to be reasonable that if he’s using his phone, he may use emails and who knows what else is in the computer. So I think that’s part of his property like everybody else. So it should be subject to search and seizure.”

The trial court ordered that while on mandatory supervision, “[t]he defendant’s computers, electronic devices, including but not limited to cell phones, laptop computers and notepads are subject to search and forensic analysis. And that means that the defendant must provide passcodes to conduct those searches.” The trial court also imposed a general search condition, ordering defendant to “submit his person, place of residence, vehicle and all property under his control to a search at any time without the necessity of a warrant or probable cause whenever requested by any peace officer.”

III. DISCUSSION
IV.
Defendant argues the electronic devices search condition is unreasonable under Lent because it bears no relationship to his crimes and is not reasonably related to his future criminality. He contends the condition is unconstitutionally overbroad because it infringes on his right to privacy and is not reasonably related to the state’s interests in his rehabilitation or public safety. Defendant urges us to remand to the trial court to narrowly tailor a condition that allows for only a cursory search of his cell phone and no other searches or forensic analysis of his electronic devices without a warrant.

Defendant additionally contends that the sentencing enhancement under former section 11370.2 for the prior drug conviction must be stricken due to a change in the law that applies retroactively to him, that no certificate of probable cause is required for him to raise this argument, and that the matter should be remanded for resentencing.

A. General Principles Regarding Mandatory Supervision
B.
Defendant was denied probation and placed on mandatory supervision under Penal Code section 1170, subdivision (h)(5)(B). We begin by reviewing general principles regarding mandatory supervision.

When a defendant is on mandatory supervision, the defendant “shall be supervised by the county probation officer in accordance with the terms, conditions, and procedures generally applicable to persons placed on probation.” (Pen. Code, § 1170, subd. (h)(5)(B).) Although mandatory supervision has been characterized as “akin to probation” (People v. Griffis (2013) 212 Cal.App.4th 956, 963, fn. 2), courts have also observed that mandatory supervision is in some respects “more similar to parole than probation” (People v. Fandinola (2013) 221 Cal.App.4th 1415, 1423; accord, People v. Martinez (2014) 226 Cal.App.4th 759, 763 (Martinez)).

“The fundamental goals of parole are ‘ “to help individuals reintegrate into society as constructive individuals” [citation], “ ‘to end criminal careers through the rehabilitation of those convicted of crime’ ” [citation] and to [help them] become self-supporting.’ [Citation.] In furtherance of these goals, ‘[t]he state may impose any condition reasonably related to parole supervision.’ [Citation.]” (Martinez, supra, 226 Cal.App.4th at p. 763.) Generally, the goals of probation are rehabilitation of the defendant and protection of public safety. (People v. Olguin (2008) 45 Cal.4th 375, 380; People v. Moran (2016) 1 Cal.5th 398, 402 [“ ‘probation [is] an act of clemency . . . , and its primary purpose is rehabilitative in nature’ ”].)

Mandatory supervision conditions have been analyzed “under standards analogous to the conditions or parallel to those applied to terms of parole.” (Martinez, supra, 226 Cal.App.4th at p. 763.) Nonetheless, the standard for analyzing the validity and reasonableness of parole conditions is “the same standard as that developed for probation conditions.” (Id. at p. 764; In re Stevens (2004) 119 Cal.App.4th 1228, 1233 [“[t]he criteria for assessing the constitutionality of conditions of probation also applies to conditions of parole”].) In Martinez, the appellate court applied those same standards, including the Lent test, to conditions of mandatory supervision. (Martinez, supra, at p. 764; accord People v. Relkin (2016) 6 Cal.App.5th 1188, 1193-1194, 1195 [applying Lent test to mandatory supervision condition].)

We understand the Attorney General to contend that the Lent test does not apply to parole conditions, and that therefore the Lent test should not be used for assessing the reasonableness of mandatory supervision conditions. In making this argument, the Attorney General relies primarily on People v. Burgener (1986) 41 Cal.3d 505 (Burgener). Burgener, however, did not hold that the Lent test is inapplicable to parole conditions. (See id. at pp. 532-533.)

The Attorney General nevertheless contends that mandatory supervision conditions should be analyzed “without reference to the specific offender or offense,” which is part of the Lent test, and instead should simply be assessed to determine whether the mandatory supervision condition “is reasonably related to fostering effective supervision.” As we will next explain, however, even under the stricter (in the Attorney General’s view) Lent test, the electronics search condition was properly imposed by the trial court.

B. Standards of Review

We review the reasonableness of conditions of mandatory supervision for an abuse of discretion. (Martinez, supra, 226 Cal.App.4th at p. 764.) We review constitutional challenges to conditions of mandatory supervision de novo. (Id. at p. 765.)

C. Reasonableness Under Lent

Under the Lent test, “ ‘[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.” ’ [Citations.] The Lent test ‘is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.’ [Citation.]” (Ricardo P., supra, 7 Cal.5th at p. 1118.)

In Ricardo P., the California Supreme Court addressed whether an electronics search condition met the third prong of the Lent test, that is, whether the condition was not reasonably related to future criminality. (Ricardo P., supra, 7 Cal.5th at pp. 1116, 1119.) The minor in Ricardo P. admitted two counts of felony burglary. (Id. at p. 1115.) Although there was no indication that the minor had used an electronic device in connection with the burglaries, the juvenile court imposed the condition in order to monitor the minor’s compliance with separate conditions prohibiting him from using or possessing illegal drugs. (Ibid.)

The California Supreme Court determined that the condition satisfied Lent’s third prong and was therefore invalid because “the burden it impose[d] on [the minor’s] privacy [was] substantially disproportionate to the condition’s goal of monitoring and deterring drug use.” (Ricardo P., supra, 7 Cal.5th at p. 1120.) The court indicated that there must be a “closer relationship” between the probation condition and deterring future criminality (ibid), and that this relationship must be “more than just an abstract or hypothetical relationship.” (Id. at p. 1121.)

The California Supreme Court clarified, however, that the third prong under Lent does not require a “nexus” between the probation condition and the underlying offense or prior offenses. (Ricardo P., supra, 7 Cal.5th at p. 1122.) The court explained that “ ‘conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime’ [citation] so long as they are ‘reasonably directed at curbing [the defendant’s] future criminality’ [citation]. For example, courts may properly base probation conditions upon information in a probation report that raises concerns about future criminality unrelated to a prior offense. [Citation.]” (Ibid.)

As an example, the California Supreme Court pointed to the validity of a condition requiring a prior narcotics offender to submit to warrantless property searches, as the condition was “ ‘reasonably related to the probationer’s prior criminal conduct and [was] aimed at deterring or discovering subsequent criminal offenses.’ ” (Ricardo P., supra, 7 Cal.5th at pp. 1120-1121.) Such a condition was “ ‘reasonable and valid’ ” because it was “ ‘related to [the probationer’s] reformation and rehabilitation in the light of the offense of which he was convicted.’ [Citations.]” (Id. at p. 1121, italics omitted.)

The California Supreme Court further 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. [Citations.]” (Ricardo P., supra, 7 Cal.5th at p. 1122.) Regarding this proportionality requirement, the court explained that a “probationer’s offense or personal history may provide the . . . 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.” (Id. at pp. 1128-1129.)

The California Supreme Court found that such proportionality was lacking in the case before it. The court explained: “[N]othing in the record suggests that [the minor] has ever used an electronic device or social media in connection with criminal conduct. The juvenile court instead relied primarily on indications that [the minor] had previously used marijuana and its generalization that ‘minors typically will brag about their marijuana usage or drug usage, particularly their marijuana usage, by posting on the Internet, showing pictures of themselves with paraphernalia, or smoking marijuana.’ Based solely on these observations, the juvenile court imposed a sweeping probation condition requiring [the minor to submit all of his electronic devices and passwords to search at any time. Such a condition significantly burdens privacy interests. [Citations.]” (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.)

In this case, defendant’s current offenses involved the sale and possession for sale of GHB and methamphetamine, and he admitted that he possessed 28.5 grams or more of methamphetamine. He also admitted having a prior conviction for possession for sale of a controlled substance.

At sentencing, defendant acknowledged that the instant case involved a phone, and therefore he did “not object to a search of the phone.” (Italics added.) Upon clarification by the trial court, defendant indicated that he was objecting to the electronics search condition with respect to its application “to the computers” and “[a]nything that’s not a phone.” (Italics added.)

On appeal, to the extent defendant objects to the electronics search condition as it applies to a phone, defendant has forfeited that objection. Indeed, he expressly disclaimed any objection regarding a phone in the trial court.

Regarding the application of the condition to electronic devices other than a phone, such as a computer, the trial court in imposing the condition recognized the prevalence of electronic devices and reasoned that computers, like phones, can be used for communication such as through e-mail.

In our view, the condition requiring all of defendant’s electronic devices to be subject to search is reasonably related to his future criminality. The record reflects that defendant has a prior conviction history for selling a controlled substance. His most recent offenses also involve sale or possession for sale of two different drugs, and he committed these offenses while on mandatory supervision for the prior drug conviction.

Since defendant used a cell phone to arrange a drug transaction, it was reasonable for the trial court to give the probation officer the ability to ensure that defendant was not violating his mandatory supervision by arranging additional drug sales through any electronic devices—whether a cell phone, laptop computer, or tablet. Although defendant had used a cell phone to conduct a drug deal, it was permissible for the trial court to impose a more wide-ranging electronics search condition, for “ ‘conditions of probation aimed at rehabilitating the offender need not be so strictly tied to the offender’s precise crime.’ ” (Ricardo P., supra, 7 Cal.5th at p. 1122.) We think the same applies to conditions of mandatory supervision. If the electronic devices search condition is limited to defendant’s cell phone, he could easily circumvent the condition by using some other device, like a tablet computer or laptop, to sell narcotics using many of the same functions and applications that are on his cell phone.

In sum, allowing the probation officer to access this information will facilitate defendant’s supervision and can deter future criminality by ensuring that defendant does not attempt to resume selling drugs using his electronic devices. Given his criminal history and the use of a cell phone to commit his current offenses, we conclude the electronic devices search condition was reasonably related to future criminality for this repeat offender who sells narcotics. Moreover, we believe the burden imposed by the condition in allowing a search of all of defendant’s electronic devices, rather than being limited to just phones, is proportionate to the condition’s goal of monitoring and deterring his drug sales. (Ricardo P., supra, 7 Cal.5th at pp. 1122-1123.)

Regarding defendant’s contentions on appeal that “nothing was put forth that would justify a forensic search of [his] telephone” (italics added), that only a “cursory review of cellular telephones” is permissible, and that the search of his phone or other electronic devices should be limited to certain information, defendant never objected on these grounds in the trial court. To the contrary, defendant indicated that he objected to the electronic devices search condition only as to the type of electronic devices it applied to, and that he had no objection to a forensic analysis search of his phone. Further, defendant’s reliance on People v. Appleton (2016) 245 Cal.App.4th 717 (Appleton) to support this argument is misplaced as to the analysis under Lent. In Appleton, this court found an electronics search condition valid under Lent. (Appleton, supra, at p. 724.)

For the foregoing reasons, we conclude the electronic devices search condition was reasonably related to preventing future criminality for this defendant. Since defendant cannot satisfy this third prong of the Lent test, the electronic devices search condition is reasonable and valid. We therefore shall not reach the parties’ arguments regarding the first prong of the Lent test.

D. Constitutional Overbreadth Challenge

Defendant contends the electronic devices search condition is unconstitutionally overbroad because it infringes on his Fourth Amendment right to privacy and is not reasonably related to the state’s interests in his rehabilitation or public safety. In the trial court, defendant objected that the condition was overbroad because it applied to devices other than his cell phone.

In the context of probation conditions, the California Supreme Court has stated that a “ ‘condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.’ ” (Ricardo P., supra, 7 Cal.5th at p. 1118.)

“The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ [Citation.]” (United States v. Knights (2001) 534 U.S. 112, 118-119 (Knights).) A person’s status as a probationer or parolee subject to a search condition informs both sides of that balance because probationers and parolees enjoy a lesser expectation of privacy than the general public. (Id. at p. 119 [probationer]; Samson v. California (2006) 547 U.S. 843, 850 (Samson) [parolee].)

The United States Supreme Court has “repeatedly acknowledged that a State’s interests in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment. [Citations.]” (Samson, supra, 547 U.S at p. 853.) “[T]he Fourth Amendment does not render the States powerless to address these [state] concerns effectively. [Citation.] . . . California’s ability to conduct suspicionless searches of parolees serves its interest in reducing recidivism, in a manner that aids, rather than hinders, the reintegration of parolees into productive society.” (Id. at p. 854.) Balancing the defendant’s privacy interests against the government’s interests, the Samson court held that “the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.” (Id. at p. 857.) The question in this case is whether the government’s right to conduct a suspicionless search of a person on mandatory supervision extends to data on the person’s electronic devices.

Defendant relies on the United States Supreme Court’s decision in Riley v. California (2014) 573 U.S. 373 (Riley) and this court’s decision in Appleton. In Riley, the court held that the warrantless search of a suspect’s cell phone implicated and violated the suspect’s Fourth Amendment rights. (Riley, supra, at pp. 386, 401-402.) The court explained that modern cell phones, which have the capacity to be used as mini-computers, can potentially contain sensitive information about a number of areas of a person’s life. (Id. at pp. 393-397.) The court emphasized, however, that its holding was only that cell phone data is subject to Fourth Amendment protection, “not that the information on a cell phone is immune from search.” (Riley, supra, at p. 401.)

Riley is inapposite since it arose in a different Fourth Amendment context. Riley involved the scope of a warrantless search incident to arrest of a person who had not been convicted of a crime beyond a reasonable doubt and who was not on supervised release. (Riley, supra, 573 U.S. at pp. 378-381.) The balancing of the state’s interests and the defendant’s privacy interests is very different in this case, which involves the mandatory supervision of a convicted felon with a criminal history for selling narcotics. Moreover, Riley did not consider the constitutionality of conditions of probation, parole, or mandatory supervision. Persons on supervised release do not enjoy the absolute liberty to which every citizen is entitled, and the court may impose reasonable conditions that deprive an offender of some freedoms enjoyed by law-abiding citizens. (Knights, supra, 534 U.S. at p. 119 [probationers].)

This court rejected an overbreadth argument in People v. Ebertowski (2014) 228 Cal.App.4th 1170 (Ebertowski), where the challenged probation conditions required the defendant to (1) “ ‘provide all passwords to any electronic devices, including cell phones, computers or notepads, within [the defendant’s] custody or control, and submit such devices to search at any time without a warrant by any peace officer,’ ” and (2) “ ‘provide all passwords to any social media sites . . . and to submit those sites to search at any time without a warrant by any peace officer.’ ” (Id. at p. 1172.) The defendant in Ebertowski, a member of a criminal street gang, used social media to promote his gang. This court rejected the defendant’s claim that the condition was “not narrowly tailored to [its] purpose so as to limit [its] impact on his constitutional rights to privacy, speech, and association” and concluded that the state’s interest in preventing the defendant from continuing to associate with gangs and participate in gang activities, which was served by the condition, outweighed the minimal invasion of his privacy. (Id. at p. 1175.)

In Appleton, the defendant pleaded no contest to false imprisonment by means of deceit. (Appleton, supra, 245 Cal.App.4th at p. 720.) The trial court granted probation and imposed a condition making the defendant’s computers and electronic devices “ ‘subject to forensic analysis search for material prohibited by law.’ ” (Id. at p. 721.) The only connection to electronic devices in Appleton was that the defendant met the minor victim on social media several months before the crime occurred. (Id. at pp. 719-720.) On appeal, the defendant challenged the search condition as both unreasonable and overbroad. (Id. at pp. 723-724.) The Appleton panel concluded that although the challenged condition was reasonable, it was unconstitutionally overbroad, and remanded to the trial court to “consider fashioning an alternative probation condition.” (Id. at p. 729.) Relying on Riley, the Appleton panel held that the condition was overbroad because it “would allow for searches of vast amounts of personal information” (Appleton, supra, at p. 727) that “could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity,” including “for example, medical records, financial records, personal diaries, and intimate correspondence with family and friends” (id. at p. 725). The Appleton panel concluded that “the state’s interest here—monitoring whether defendant uses social media to contact minors for unlawful purposes—could be served through narrower means,” such as by imposing “the narrower condition approved in Ebertowski, whereby defendant must provide his social media accounts and passwords to his probation officer for monitoring.” (Id. at p. 727, fn. omitted.)

Defendant urges us to follow Appleton and remand to the trial court to fashion a more narrowly tailored condition of mandatory supervision related to his electronic devices. Echoing themes from Riley, defendant argues that a cell phone may contain data dating far back in time and can implicate data that is not stored on the device itself that may be accessed via cloud computing. (See e.g., Riley, supra, 573 U.S. at pp. 394-395, 397.)

Here, the search condition regarding defendant’s electronic devices properly serves the state’s interest in preventing defendant from using electronic devices to engage in criminal activity such as the sale of narcotics. Indeed, defendant recognizes that some intrusion on his privacy rights would be justified, since he did not object below to applying the electronic devices search condition to his cell phone and, even on appeal, he does not object to having some type of search of his cell phone. Moreover, electronic information is easily transferable between devices. By allowing the search of other electronic devices, the condition ensures that defendant is not engaging in narcotics sales by the use of any electronic device. As we have stated, if the electronic devices search condition is limited to defendant’s cell phone, he could easily circumvent the condition by using some other device, like a tablet computer or laptop, to sell narcotics using many of the same functions and applications that are on his cell phone, and the probation officer would not be able to effectively monitor defendant’s activity while he is on mandatory supervision.

Citing In re J.B. (2015) 242 Cal.App.4th 749 (J.B.), defendant contends the electronic devices search condition is overbroad because it implicates the privacy interests of third parties. First, there is no evidence in the record to support defendant’s assertion that a search of his electronic devices implicates the privacy interest of third parties. Second, defendant fails to demonstrate that he has standing to raise third party privacy interests. (Id. at p. 759 [“the minor has no standing to raise the privacy interests of third parties”].)

For these reasons, we conclude the electronic devices search condition is not overbroad.

E. Amended Health and Safety Code Section 11370.2

Defendant contends that the three-year enhancement under former section 11370.2 should be stricken based on an amendment to that section that became effective in 2018. The Attorney General concedes that amended section 11370.2 applies to defendant but contends that his claim is barred because he failed to obtain a certificate of probable cause.

1. Retroactive application of amended section 11370.2
2.
Effective January 1, 2018, Senate Bill No. 180 (2017-2018 Reg. Sess.) amended section 11370.2, narrowing its application. (People v. Millan (2018) 20 Cal.App.5th 450, 454 (Millan).) Under the amendment, the three-year enhancement under section 11370.2 applies only if the defendant’s prior drug conviction was for a violation of section 11380. (§ 11370.2, subds. (a)-(c).) Here, defendant’s prior drug conviction was for a violation of section 11378, not section 11380.

Amended section 11370.2 applies to cases that are not yet final. (Millan, supra, 20 Cal.App.5th at pp. 455-456; People v. McKenzie (2018) 25 Cal.App.5th 1207, 1213, review granted Nov. 20, 2018, S251333.) “ ‘[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]’ [Citation.]” (People v. Vieira (2005) 35 Cal.4th 264, 306.) Defendant’s case is not yet final, and therefore amended section 11370.2 applies retroactively to him.

3. No certificate of probable cause is needed
4.
The Attorney General contends that, because defendant agreed to a specific sentence of six years eight months as part of his plea, his current attempt to reduce his sentence is an attack going to the validity of the plea and requires a certificate of probable cause. Because he did not obtain a certificate, the AG argues that defendant’s claim is barred.

Defendant contends that he was not required to obtain a certificate of probable cause in order to argue that an ameliorative law retroactively applies to him.

This court addressed the issue of a certificate of probable cause in the context of two other ameliorative changes in the law. In People v. Baldivia (2018) 28 Cal.App.5th 1071 (Baldivia), the defendant entered no contest pleas and admissions in exchange for an agreed prison sentence. (Id. at pp. 1073-1074.) On appeal, the defendant sought, based on recent changes in the law, a remand for a juvenile fitness hearing in juvenile court and, if he was transferred to adult criminal court, a resentencing hearing to allow the court to exercise its discretion to strike a firearm enhancement. (Id. at p. 1074.)

This court determined that the defendant was not required to obtain a certificate of probable cause. This court reasoned, based on California Supreme Court precedent, that “a plea agreement is deemed to incorporate subsequent changes in the law so long as those changes were intended by the Legislature or the electorate to apply to such a plea agreement.” (Baldivia, supra, 28 Cal.App.5th at p. 1078; accord, People v. Hurlic (2018) 25 Cal.App.5th 50, 57.) Further, an “ ‘inference of retroactivity’ is ‘the ordinary presumption’ ” that applies “whenever there is no evidence of a legislative intent that the change be only prospective. [Citation.]” (Baldivia, supra, at p. 1079.) This court reasoned that “[i]f the electorate or the Legislature expressly or implicitly contemplated that a change in the law related to the consequences of criminal offenses would apply retroactively to all nonfinal cases, those changes logically must apply to preexisting plea agreements, since most criminal cases are resolved by plea agreements. It follows that defendant’s appellate contentions were not an attack on the validity of his plea and did not require a certificate of probable cause.” (Ibid.)

As the parties here observe, a split of opinion has developed among the Courts of Appeal regarding whether a defendant who entered a plea in exchange for a specified sentence must obtain a certificate of probable cause before arguing on appeal that an ameliorative law retroactively applies to potentially alter the agreed-upon sentence. The issue is currently before the California Supreme Court. (See, e.g., People v. Stamps (2019) 34 Cal.App.5th 117 [no certificate required], review granted June 12, 2019, S255843; People v. Kelly (2019) 32 Cal.App.5th 1013 [certificate required], review granted June 12, 2019, S255145; People v. Fox (2019) 34 Cal.App.5th 1124 [certificate required], review granted July 31, 2019, S256298; People v. Galindo (2019) 35 Cal.App.5th 658 [certificate required], review granted August 28, 2019, S256568.)

The Attorney General contends that this court should follow the line of cases requiring a certificate of probable cause. However, we agree with the reasoning of this court’s decision in Baldivia. Specifically, since a plea agreement generally incorporates future changes in the law that the legislative body intends to apply retroactively to the parties, defendant is not attacking the validity of his plea when he argues that section 11370.2, as amended, retroactively applies to his case and requires a remand for resentencing. Therefore, no certificate of probable cause is required for defendant to raise this argument on appeal.

5. Remand for resentencing is appropriate
6.
If this court determines that a certificate of probable cause is not required, the Attorney General concedes that the matter should be remanded to the trial court to strike the section 11370.2 enhancement and resentence defendant. We find the Attorney General’s concession appropriate. We will remand the matter with directions to the trial court to strike the section 11370.2 enhancement and resentence defendant. (Millan, supra, 20 Cal.App.5th at p. 456.)

V. DISPOSITION
VI.
The judgment is reversed, and the matter is remanded to the trial court with directions to strike the Health and Safety Code section 11370.2 enhancement and to resentence defendant.

BAMATTRE-MANOUKIAN, J.

WE CONCUR:

PREMO, ACTING P.J.

ELIA, J.

People v. Lopez

H043323

Filed 12/19/19 P. v. Hyson CA1/4

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 FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

SHARONEE HYSON,

Defendant and Appellant.

A153805

(Alameda County

Super. Ct. No. 17-CR-014060)

Sharonee Hyson was convicted by a jury of first-degree burglary (Pen. Code § 459), unlawful driving or taking of a vehicle (Veh. Code § 10851, subd. (a)), and two misdemeanor counts of fraudulent possession of personal information (§ 530.5, subd. (c)(1)). The trial court found that multiple enhancement allegations for prior convictions and prior prison terms were true and sentenced Hyson to seven years and six months in prison.

On appeal, Hyson contends the judgment must be reversed due to prosecutor misconduct and ineffective assistance of counsel. Alternatively, she seeks reversal of specific convictions due to jury instruction error and insufficiency of the evidence, and a stay of court fines and fees that were imposed without consideration of Hyson’s ability to pay them. Finally, Hyson contends that two prior prison-term sentence enhancements must be stricken due to an amendment to section 667.5, subdivision (b) (section 667.5(b)) that will become effective in January 2020. We reject all but one of Hyson’s contentions; we agree that the section 667.5(b) sentence enhancements must be stricken. Accordingly, we will remand this case for resentencing.

BACKGROUND

On March 31, 2017, Mr. W. reported to the San Francisco Police Department that his car had been stolen. That morning, Mr. W. discovered his Acura was missing from the spot where he had parked it a few days earlier. There were no electronics, mail, personal checks or driver’s licenses in his car when Mr. W. parked and locked it that last time.

On the afternoon of April 2, 2017, the Piedmont Police Department’s Automatic License Plate Reader (ALPR) identified the location of Mr. W.’s Acura, which was traveling near the intersection of Grand and Rose Avenues. Piedmont Police Officer Garcia, who was accompanied by a citizen “ride-along,” responded to the ALPR report. While en route, Garcia spotted the Acura travelling toward him on Grand Avenue. Just as Garcia was passing the Acura, it made a sharp right turn onto a side street. The sun was shining directly through the front window of the patrol car, but Garcia could see there was only one person in the Acura, and he thought the occupant appeared to be a black male with a short haircut. Garcia made a partial U-turn, and followed as the Acura driver made another right turn and then pulled over and stopped. Garcia parked behind the vehicle and activated his patrol car lights.

Because he was dealing with a stolen vehicle, Garcia began performing a high-risk felony traffic stop. He exited his patrol car, drew his gun but did not approach the Acura. Standing near his car, which was behind and partially to the left of the Acura, Garcia issued a command, telling the suspect something like “show your hands.” The driver looked back at Garcia, made eye contact and then “sped off at a high rate of speed.” Garcia decided not to chase the suspect due to safety concerns for other citizens. Minutes later, a broadcast from police dispatch reported that a vehicle crashed into a barrier a few blocks away. Garcia responded to that report, where he found the Acura parked near a pile of construction debris. The engine was on but there was no key in the ignition. There was garbage, food and miscellaneous electronics in the car and a backpack was on the ground nearby. Garcia began searching for the suspect in yards and at houses in the neighborhood.

Piedmont Police Officer Foster had also responded to the ALPR report about the stolen Acura. While en route, Foster saw Garcia following the Acura and followed behind. By the time Foster arrived at the location where the Acura pulled over, Officer Garcia was exiting his vehicle. Foster parked her patrol car behind Garcia’s, activated her lights and stayed in her car. The driver never turned around, but Foster could see that there was only one occupant. From the back, the suspect appeared to be a light-skinned black male with short hair or a shaved head who was wearing a tan shirt.

After the suspect fled and Officer Garcia put out an update that the Acura had been abandoned, Officer Foster began searching the area in her patrol car. At one point, Foster stopped to question some children playing in a yard. The children approached and as they spoke to Foster through her passenger window, a woman who came down the sidewalk behind them caught Foster’s attention. The woman was wearing a brown “boonie hat,” which had a wide brim and strings that could be pulled tight under the chin. She had a guitar case slung over her shoulder and there were tattoos on both her forearms. The woman made eye contact with Foster and then looked straight ahead and walked past the patrol car.

After speaking with the children, Foster drove past the woman again but concluded she had no ground to stop her because the original thought was that the suspect was a male and because the woman did not appear as though she had just been running through yards trying to evade the police. So Foster drove to the location where the Acura had been abandoned and joined Officer Garcia in his foot search of the neighborhood.

By that time, Piedmont Police Officer Jaime had also joined the search. While driving the area waiting for updates from other officers, Jaime saw a woman walking on San Carlos Avenue, wearing a “boonie-style khaki hat” and carrying a guitar case. Jaime also noticed a tattoo on the woman’s forearm. Although the woman caught Jaime’s attention, he did not consider her a suspect at that point.

Later, Jaime responded to a call from Mr. R., whose multi-level home was a short distance from the abandoned Acura. Another officer had previously notified Mr. R. that the police were searching his neighborhood and, after realizing that he had left doors opened downstairs, he wanted the police to search his home. When Officer Jaime noticed that Mr. R. had a number of musical instruments in his downstairs room, he asked if a guitar was missing, which led Mr. R. to discover that he was missing a guitar and a tan hat, both of which he kept near the door on the bottom level of his home.

Meanwhile, Officers Garcia and Foster completed their foot search of the neighborhood and returned to the abandoned Acura, where Foster heard about Mr. R.’s missing guitar and hat and reached the conclusion that the woman she had seen while talking with the children was their suspect. Then she helped Garcia conduct a full search of the Acura, where they found several electronic devices, including two Kindles and multiple cell phones. Some of the devices were on the ground outside the stolen vehicle. They also found several “identification” documents, including a “handful” of driver’s licenses that did not appear to belong to the registered owner of the vehicle. The backpack found near the car contained miscellaneous items, including a screwdriver, a medical prescription, and driver’s licenses in the names of a Ms. L. and a Mr. C., both of whom had ordered new licenses from the Department of Motor Vehicles but never received them.

The next day, Officer Foster was examining items recovered from the Acura when she discovered that a Facebook account had been left open on one of the Kindles. Foster recognized the account holder’s photograph as the woman with the guitar case and tattoos whom she had encountered the previous day. At that point, Foster booked the Kindle into evidence and recommended that Officers Garcia and Jaime be shown a photo lineup to see if they would select the Facebook account owner’s photograph as the suspect who they encountered the previous day.

Piedmont Police Officer Coffey administered a photo lineup to Garcia and Jaime, which included photographs of six individuals, including Hyson. Although Coffey had not participated in the on-scene investigation, he knew Hyson was a person of interest when he administered the lineups. Prior to viewing the lineup, Garcia had not previously seen a photograph of Hyson. However, Jaime happened to see Hyson’s photograph on Foster’s desk while walking through the office earlier in the day. Both Garcia and Jaime identified Hyson as the person they encountered the previous day.

Officers Garcia, Foster and Jaime all testified at Hyson’s jury trial. Garcia identified Hyson as the person who made eye contact with him before fleeing from the traffic stop in the stolen Acura. Foster identified Hyson as the woman with the guitar who made eye contact when she walked by Foster’s patrol car while Foster was talking with the neighborhood children. And Jaime identified Hyson as the woman he saw walking on the street with the guitar when he was searching for the suspect who abandoned the stolen Acura.

At trial, the prosecution also produced documentary evidence of the photo lineups and accompanying admonitions, which were published to the jury. While cross-examining the officers about their identifications of Hyson, defense counsel elicited testimony that it is customary for the Piedmont Police Department to administer double-blind lineups, which means that the administrator does not know who the suspect is in order to avoid inadvertently giving cues that might be suggestive.

The jury returned verdicts finding Hyson guilty of burglary of Mr. R.’s home, unlawful driving or taking of Mr. W.’s Acura, and two misdemeanor counts of fraudulent possession of the personal information of Ms. L. and Mr. C.

DISCUSSION

I. The Prosecutor’s Conduct

Hyson contends the prosecutor committed misconduct during his closing argument, which deprived her of her constitutional right to a fair trial. “ ‘A prosecutor commits misconduct when his or her conduct either infects the trial with such unfairness as to render the subsequent conviction a denial of due process, or involves deceptive or reprehensible methods employed to persuade the trier of fact.’ [Citation.] ‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’ [Citation.] ‘When attacking the prosecutor’s remarks to the jury, the defendant must show that, “[i]n the context of the whole argument and the instructions” [citation], there was “a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.” ’ ” (People v. Dalton (2019) 7 Cal.5th 166, 251–252.)

In this case, defense counsel did not object to many of the comments that Hyson now characterizes as improper. However, because Hyson makes the alternative claim that failure to object constituted ineffective assistance of counsel, we address her objections on their merits. Hyson contends the prosecutor made three types of improper argument, which we consider in the order that the remarks were presented to the jury.

A. Alleged Allusions to the Reasonable Doubt Standard

Prior to the attorneys’ opening statements, the trial court instructed the jury regarding the presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt. The court reminded the jury of the prosecutor’s burden prior to closing arguments and gave another reasonable doubt instruction at the conclusion of those arguments. Hyson contends the prosecutor effectively contradicted these jury instructions by misstating the People’s burden during his closing argument to the jury.

A prosecutor commits misconduct when he or she “misstates the law by, for example, making remarks that would ‘absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements.’ ” (People v. Potts (2019) 6 Cal.5th 1012, 1036.) The issue does not turn on the prosecutor’s intent or whether the comments can be construed as objectionable. Rather, the defendant claiming misconduct must establish a reasonable likelihood that the jury understood the remarks as diluting the People’s burden of proving guilt beyond a reasonable doubt. (Ibid.)

According to Hyson, the prosecutor misstated his burden of proof at the end of his initial closing argument, while summarizing the trial evidence. The prosecutor began this line of argument by stating: “Now, in conclusion this case has a substantial amount of direct evidence.” After recounting the officers’ direct testimony, the prosecutor stated: “As I’ve discussed, you can probably call it a night right there, but there’s still circumstantial evidence as well.” After highlighting some circumstantial evidence, the prosecutor argued that the evidence also showed the officers followed proper procedure and there was no reason to doubt their testimony. Finally, the prosecutor concluded: “And because there is substantial evidence, substantial direct evidence, substantial circumstantial evidence presented by the work of the officers, once you consider the evidence, I have no doubt you will return verdicts of guilty . . . .”

Hyson construes these remarks as an argument that a “conviction could be supported by merely substantial evidence.” According to Hyson, the prosecutor committed misconduct by invoking this “deferential” substantial evidence standard of review as it has nothing to do with the “more demanding” beyond a reasonable doubt standard. However, when the challenged remarks are considered in context it is not reasonably likely that the jury interpreted them the way Hyson does. The prosecutor was not discussing the reasonable doubt standard but instead was summarizing the trial evidence. He used the word “substantial” as a way to urge the jury to take account of both the direct evidence and the circumstantial evidence. The term was not related to a discussion of standards of proof or standards of review.

Hyson mistakenly relies on People v. Centeno (2014) 60 Cal.4th 659. In that case, the prosecutor used a hypothetical to explain the People’s burden of proof, which “strongly implied that the People’s burden was met if its theory was ‘reasonable’ in light of the facts supporting it.” (Centeno, at p. 671.) Making this argument to the jury was misconduct because it was reasonably likely that the jury construed the prosecutor’s depiction of the reasonable doubt standard in an improper way. Here though, when the prosecutor used the word “substantial” he made no mention of the “substantial evidence standard,” nor was he purporting to characterize the reasonable doubt standard. He was instead making a factual argument that the direct and circumstantial evidence presented at trial was “substantial” in the sense that it was “abundant” or “plentiful.” (Webster’s 3d New Internat. Dict. (2002) p. 2280.)

B. Commenting on the Absence of Defense Evidence

Hyson next contends the prosecutor repeatedly commented on the absence of defense evidence as part of a strategy to shift the burden to Hyson to prove her innocence while highlighting the fact that she had elected not to testify in her own defense. A prosecutor commits misconduct with remarks that misstate the law by placing on the defendant the burden of establishing a reasonable doubt as to her guilt. (People v. Marshall (1996) 13 Cal.4th 799, 831-832.) Moreover, “[t]he Fifth Amendment prohibits a prosecutor from commenting, directly or indirectly, on a defendant’s decision not to testify on his own behalf.” (People v. Taylor (2010) 48 Cal.4th 574, 632.) The issue again is whether there is a “reasonable likelihood” the jury construed the remarks in these improper ways. (Marshall, at p. 831; Taylor, at p. 633.)

In this case, most of the prosecutor’s remarks about the absence of defense evidence were made during his rebuttal. The thrust of defense counsel’s closing argument had been that “[t]he government . . . arrested, charged and prosecuted the wrong person in this case.” Counsel argued that the police failed to conduct a competent investigation and that the police-officer witnesses who testified that Hyson committed these crimes were either lying or mistaken. Responding to this argument on rebuttal, the prosecutor stated: “Defense evidence. Where is the evidence this was not defendant?” The trial court sustained an objection that this statement was improper “burden shifting,” but the prosecutor responded that he had a right to “argue failure to call logical witness[es],” which led to a sidebar discussion between the court and counsel.

After the sidebar, the prosecutor continued his argument, pointing out that the defense had resources for gathering evidence but presented none, that there were no alibi witnesses, nor any evidence that Hyson was somewhere else on the day in question. Defense counsel lodged a continuing objection that this argument was improper burden shifting, which was overruled, and the prosecutor continued to develop this theme, suggesting ways the defense could have demonstrated that Hyson was not the person who drove the Acura or that the Facebook account belonged to someone else. Concluding his rebuttal, the prosecutor drove home his point that there was not a “shred of evidence” that anyone other than Hyson committed these offenses or that Hyson was someplace else when they occurred, pointing out that “you can bet your boots” that if the defense had any such evidence they would have presented it.

In this court, Hyson contends that by harping on the absence of defense evidence the prosecutor was shifting the burden to the defense to produce evidence that Hyson was somewhere else when the charged offenses were committed. But “[a] distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1340.) Here, Hyson challenges a rebuttal argument, responding to the defense claim that the prosecutor failed to prove that Hyson was the person who committed these crimes. The prosecutor’s point was that all of the evidence pointed to guilt and none pointed in the other direction—not that the defense had some burden of proof that it failed to meet.

Thus, the challenged argument was permissible, in contrast to People v. Hill (1998) 17 Cal.4th 800, where the prosecutor told the jury that “[t]here has to be some evidence on which to base a doubt.” (Id. at p. 831, italics omitted.) Nor did the prosecution argue, as Hyson contends, that any “defect in its proof was immaterial, because the defense failed to prove defendant was elsewhere or that someone other than defendant owned the Kindle and had driven the car.” He argued there was no defect in the People’s case and that all the evidence pointed to Hyson’s guilt. It is not reasonably likely the jury construed this argument as improper burden shifting.

Hyson further contends that because the defense never suggested anyone else knew where Hyson was when the crimes were committed, it is reasonably likely the jury interpreted the prosecutor’s remarks as commenting on Hyson’s decision not to testify in her own defense. However, as noted above, the prosecutor suggested all kinds of ways that an alibi could have been established other than by the defendant’s own testimony. “The Fifth Amendment does not prohibit the prosecution from commenting on the state of the evidence presented at trial, or on the defense’s failure to introduce material evidence or to call witnesses other than the defendant.” (People v. Taylor, supra, 48 Cal.4th at p. 633.)

By separate argument, Hyson objects to statements the prosecutor made while he was discussing the credibility of the police witnesses during his initial closing and rebuttal arguments. Specifically, the prosecutor argued that there was no “reason” to doubt the officers’ testimony because there was no showing of misconduct and that without a reason “you can’t just disregard these officer’s testimony.” On rebuttal, the prosecutor repeated that there was no evidentiary basis for attacking the officers’ credibility and argued the defense nevertheless launched such an attack because it was their “only option when presented with this evidence.”

Hyson construes these comments as an improper attempt to shift the burden to the defense to prove the officers were not credible witnesses, and she also accuses the prosecutor of misstating the law by telling the jury that “misconduct” was the only legally recognized basis upon which to question a police officer’s credibility. Again, we are not persuaded by this interpretation of the prosecutor’s statements. His argument that the jurors should not disregard the officers’ testimony without a reason echoed the standard instruction that jurors should “not disregard the testimony of any witness without a reason.” (CALCRIM No. 302.) He did not suggest, as in Hill, supra, 17 Cal.4th at pp. 831–832, that the defense had the burden of producing “evidence” to establish a reasonable doubt. As for comments about there being no evidence of police misconduct, the defense theory was that the police officers who investigated this case were either lying or mistaken. The challenged statements were a fair response to this defense theory and a fair comment on the state of the evidence.

C. Impugning the Integrity of Defense Counsel

Finally, Hyson argues the prosecutor committed misconduct by attacking the integrity of her trial counsel. “ ‘A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.’ [Citations.] ‘In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks’ [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion.” (People v. Edwards (2013) 57 Cal.4th 658, 738.)

During her closing argument, defense counsel discussed “the overarching principles” that the defendant is presumed innocent and the prosecutor has the burden of proving guilt beyond a reasonable doubt. In that context, counsel identified what she deemed to be the three most important things about the reasonable doubt standard: it is a personal decision; it does not require an articulable justification; and it requires some degree of certainty because jurors have to live with their verdicts. Then defense counsel stated: “People say she had a good defense lawyer who protected her rights. Well, I can’t. Only you can. The decision that you make you will have to live with for the rest of your life because Ms. Hyson will have to live with it for the rest of hers.”

Responding to this argument on rebuttal, the prosecutor stated: “She also said, you need to live with this for the rest of your life because the defendant is going to live with it for hers. She is asking you to break the law right there. You are not allowed to consider sentencing or any future consequences. She’s trying to ask you to bring in sympathy. Sympathy has no place in the jury box. That’s the judge’s determination . . . . You are not to consider her future. If you find yourselves thinking that, she has successfully convinced you to break the law as a juror.”

In this court, Hyson maintains that her defense counsel’s observation that jurors would have to live with their verdicts was a correct statement of law equating the reasonable doubt standard with an “ ‘abiding conviction’ ” of the truth of a charge, which means a conviction that is of a permanent and lasting nature. (See People v. Brigham (1979) 25 Cal.3d 283, 290–291.) Because defense counsel’s point was valid, Hyson argues, the prosecutor’s response to it was an improper attack on her attorney’s integrity, a violation of her constitutional right to counsel and another attempt to evade his burden of proof.

We agree that defense counsel’s point was valid but see no prejudicial error in the prosecutor’s rather overheated response. A prosecutor has “ ‘wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account.’ ” (People v. Winbush (2017) 2 Cal.5th 402, 484.) Thus, our Supreme Court has “upheld prosecutorial arguments suggesting defense counsel’s ‘job’ is to confuse the jury and say anything necessary to obtain a favorable verdict.” (Ibid.) However, it is generally improper to accuse counsel of fabricating a defense or to even imply that defense counsel “ ‘is free to deceive the jury.’ ” (Ibid.) To the extent the prosecutor’s argument could be construed as attacking defense counsel’s credibility, it goes too far, but even so construed, there was no prejudicial error here. This was an isolated remark, not a “pattern of egregious misbehavior making the trial fundamentally unfair” under federal constitutional standards. (See People v. Espinoza (1992) 3 Cal.4th 806, 820.) Nor is it reasonably probable that this isolated remark affected the jury’s evaluation of the evidence or the rendering of its verdict, so as to constitute state law error. (Ibid.)

II. Trial Counsel’s Representation

As an alternative basis for reversal of the judgment, Hyson contends she was denied her constitutional right to the effective assistance of counsel. “A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] ‘Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 575, italics omitted.)

“It is defendant’s burden to demonstrate the inadequacy of trial counsel. [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436 (Lucas).) To carry this burden, “ ‘ “a defendant must first show counsel’s performance was ‘deficient’ because his ‘representation fell below an objective standard of reasonableness . . . under prevailing professional norms.’ [Citations.] Second, [the defendant] must also show prejudice flowing from counsel’s performance or lack thereof. [Citation.] Prejudice is shown when there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” ’ ” (Ibid.)

Hyson contends her trial attorney’s representation fell below an objective standard of reasonableness because she did not request a pinpoint instruction advising the jury “to consider the fairness” of the identification procedure that was used to identify Hyson as the suspect in this case. According to Hyson, the defense had a clear right to such an instruction under People v. Fudge (1994) 7 Cal.4th 1075, 1109–1110 (Fudge), and there is no conceivable tactical reason for failing to request it.

Fudge, supra, 7 Cal.4th 1075, was a Supreme Court appeal following a defendant’s first-degree murder convictions and sentence of death. At trial, the defendant presented expert testimony to explain potential problems with the accuracy of eyewitness identifications, but the trial court denied a defense request for a special instruction relating to the expert’s testimony. (Id. at p. 1109.) Reviewing this ruling on appeal, the Fudge court began by articulating the following pertinent principles: “A criminal defendant ‘is entitled to an instruction that focuses the jury’s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence.’ [Citations.] An explanation of the effects of such factors, however, ‘is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate.’ ” (Id. at p. 1110.) Applying these principles, the Fudge court concluded that the trial court erred by refusing to give “at least a revised version of the [defendant’s] proposed instruction,” but the error was harmless. (Ibid.)

In contrast to Fudge, in the present case there was no expert testimony regarding problems endemic to eyewitness identifications. However, identity was a highly disputed issue, leading defense counsel to request three instructions pertinent to witness identification: CALCRIM No. 105, a pre-trial general instruction outlining factors for evaluating witness credibility; CALCRIM No. 226, which again instructed the jury regarding factors relevant to witness credibility; and CALCRIM No. 315, addressing factors for evaluating an eyewitness identification. Each of these instructions was delivered to the jury.

CALCRIM No. 315, which only the defense requested, provided the jury with a comprehensive list of factors to consider when evaluating whether an eyewitness who had identified the defendant “gave truthful and accurate testimony.” CALCRIM No. 315 explicitly told the jury to consider, inter alia, whether: “the witness [was] asked to pick a perpetrator out of a group”; if “the witness [was] able to identify the defendant in a photographic or physical lineup”; and whether there were “any other circumstances affecting the witness[’s] ability to make an accurate identification.”

During her closing argument, defense counsel encouraged the jury to reject each identification of her client by the police officer witnesses. Counsel questioned the officers’ ability to get a good look at the suspect, the officers’ credibility as witnesses, and the police department’s failure to use a double-blind procedure to conduct the photo lineup. In presenting these arguments, counsel twice referred to the CALCRIM instructions telling jurors to consider factors affecting a witness’s perceptions and credibility.

Under these circumstances, we are not persuaded that defense counsel’s representation of Hyson fell below an objective standard of reasonableness solely because she did not request an additional pinpoint instruction like the one approved in Fudge. Tellingly, Hyson does not specify the content of a special instruction that she envisions as being materially different from the CALCRIM pattern instructions. CALCRIM No. 315 explicitly instructed the jury to evaluate the “identification testimony” that was elicited in this case by considering many of the same factors that were listed in the special instruction that was requested by the defense in Fudge. (See Fudge, supra, 7 Cal.4th at p. 1109, fn. 8.)

Hyson contends that the CALCRIM instructions were inadequate because they did not explain the defense theory “that the use of defective identification procedures was a reason jurors might elect to not credit the identifications.” But Fudge does not entitle a defendant to a jury instruction explaining why she thinks an identification procedure was unfair. Rather, when there is a dispute about an eyewitness identification, the jury instruction should list the relevant factors that are supported by the evidence in a “ ‘neutral manner’ ” while an “explanation” regarding the effect of such factors “ ‘is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate.’ ” (Fudge, supra, 7 Cal.4th. at p. 1110.) In reaching this conclusion, the Fudge court affirmed People v. Wright (1988) 45 Cal.3d 1126, 1138–1144. (Fudge, at p. 1110.) Wright disapproved the use of a special cautionary instruction regarding the unreliability of eyewitness identification and held that a defendant who “wishes to present to the jury information on the unreliability of eyewitness identifications under a particular set of circumstances . . . must use means other than a jury instruction, such as expert testimony.” (Wright, at p. 1153–1154.)

The only matter Hyson claims was not adequately covered by the jury instructions was the “fairness of the identification procedure.” But the version of CALCRIM No. 315 that was used in this case instructed the jury to consider a panoply of factors affecting the reliability of witness identification procedures, including specifically, whether the identification was made in a photo lineup, which was then followed immediately with a directive to consider “any other circumstances affecting the witness[’s] ability to make an accurate identification.”

Finally, if Hyson is suggesting her counsel should have requested a pinpoint instruction addressing a discrete aspect of the witness identification procedures, she fails to specify what procedure allegedly merited special attention. Moreover, requesting such a pinpoint instruction would have risked focusing the jury’s attention too narrowly on that point when the defense theory was that there were many reasons to reject each eyewitness identification of Hyson. Thus, using the CALCRIM instructions, which list multiple circumstances for evaluating witness testimony, was fully consistent with the overall defense strategy, and we have no reason to conclude that failing to request an additional instruction constituted ineffective assistance of counsel.

III. Hyson’s Felony Conviction for Driving or Taking A Vehicle

Hyson next contends a prejudicial jury instruction error requires us to reverse her felony conviction for violating section 10851(a) of the Vehicle Code, which states in part: “Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, . . . is guilty of a public offense . . . .”

Section 10851(a) prohibits at least two distinct crimes: taking a vehicle with the intent permanently to deprive the owner of possession; and driving a vehicle one knows to have been stolen. (People v. Garza (2005) 35 Cal.4th 866, 876.) Because the first crime is a theft, it can be a felony only if the value of the vehicle exceeds $950. (People v. Page (2017) 3 Cal.5th 1175, 1182–1183 (Page).) The second crime, however, can be a felony regardless of the value of the car because it is not a theft offense. (People v. Lara (2019) 6 Cal.5th 1128, 1136–1137 (Lara).) Thus, “[w]here the evidence shows a ‘substantial break’ between the taking and the driving, posttheft driving may give rise to a conviction under Vehicle Code section 10851 distinct from any liability for vehicle theft.” (Page, at p. 1188.)

A. There Was A Non-Prejudicial Jury Instruction Error

In the present case, the jury was instructed with a version of CALCRIM No. 1820 that conflated the elements of two crimes prohibited by section 10851(a). It stated: “The defendant is charged in Count [2] with unlawfully taking or driving a vehicle. [¶] To prove the defendant is guilty of this crime, the People must prove[:] 1. [T]he defendant took or drove . . . someone else’s vehicle without the owner’s consent; [¶] AND 2. When the defendant did so, she intended to deprive the owner of possession or ownership of the vehicle for any period of time. A taking requires that the vehicle be moved any distance, no matter how small. A vehicle includes a passenger vehicle.”

As other courts have recognized, an instruction of this ilk fails “to [distinguish adequately] among, and separately define the elements for, each of the ways in which section 10851 can be violated.” (People v. Gutierrez (2018) 20 Cal.App.5th 847, 856; People v. Bussey (2018) 24 Cal.App.5th 1056, 1062, rev. granted (9/12/18) 237 Cal.Rptr.3d 791.) It allows the jury to find a felony violation of section 10851(a) based on either an unlawful taking or an unlawful driving theory, but it does not require that the vehicle must have a value of more than $950, or that the vehicle was taken with the intent to deprive the owner permanently of possession. Thus, the instruction is erroneous as to the taking or theft prong of this crime. (Gutierrez, at pp. 856–857; Bussey, at pp. 1061–1062.)

“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.) “Unlike with other types of instructional error, prejudice is presumed with this type of error.” (People v. Jackson (2018) 26 Cal.App.5th 371, 378, italics omitted.) But “[a]n instruction on an invalid theory may be found harmless when ‘other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary’ under a legally valid theory.” (In re Martinez (2017) 3 Cal.5th 1216, 1226.)

In this case, count two of the information charged Hyson with a felony violation of section 10851(a) based on allegations that she “did unlawfully drive and take” Mr. W.’s Acura without his consent and “with intent, either permanently or temporarily, to deprive said owner of title to and possession of said vehicle.” Thus the charge was sufficiently broad to convict Hyson based on either type of prohibited conduct. Moreover, the jury found Hyson guilty of this offense by returning a verdict form that stated Hyson “did unlawfully drive and/or take” the Acura, which was the personal property of Mr. W., “without the consent of and with intent either permanently or temporarily, to deprive said owner of the title to and possession of said vehicle . . . .” This verdict form explicitly authorized the jury to return a guilty verdict without electing whether to rely on an illegal taking theory or an illegal driving theory. Thus, neither the charging allegations nor the formal written verdict establish beyond a reasonable doubt that the guilty verdict was based on a finding pursuant to adequate instruction that Hyson drove the Acura without the owner’s consent. The charging document and verdict form do not rule out that the jury found she instead took the car in the first instance.

Nevertheless, reversal is not required because the trial evidence shows that the jury could not have convicted on an improper taking theory unless it also found Hyson guilty on the valid ground that she unlawfully drove the Acura. The prosecutor’s trial theory as explained during closing argument was that Hyson violated section 10851(a) by driving a vehicle that she knew was stolen. There is no dispute on appeal that a conviction based on this theory is supported by substantial evidence that at least two days after Mr. W.’s car was stolen in San Francisco, Hyson was seen driving it in Piedmont.

Although not urged to do so, the jury could have used evidence of Hyson’s unlawful driving to conclude that she was also the person who stole the Acura a few days earlier. (See People v Hopkins (1963) 214 Cal.App.2d 487, 491 [mere possession of a stolen vehicle under suspicious circumstances may be sufficient evidence to sustain a conviction for violating section 10851].) However, to the extent the jury used this evidence to find a theft-based violation of section 10851(a), it also necessarily found a driving-based violation of that law. Thus, the evidence leaves no reasonable doubt that the jury made findings necessary to convict under a legally valid theory.

Hyson argues that at least one juror could have rejected evidence that she was the Acura driver who fled from Officer Garcia but nevertheless concluded that she committed a vehicle theft based solely on evidence that she was spotted in the area, and her Facebook account was opened on one of the Kindles found inside the car. The fact that the jury instruction permitted this outcome was prejudicial, Hyson reasons, because there was no evidence of the Acura’s value, and whether a properly instructed jury would have found the car’s value exceeded $950 “would be pure speculation.”

Hyson cites no authority supportive of her novel theory that a person can be convicted of taking a vehicle when there is no evidence she had that vehicle in her possession. Certainly, this case was not tried on such a theory. The linchpin of the section 10851(a) charge was that Hyson was the driver of the stolen Acura, who fled from police, and then abandoned the car in an effort to escape prosecution. For this reason, the facts of this case are materially different from Jackson, supra, 26 Cal.App.5th 371, upon which Hyson mistakenly relies.

In Jackson, an employee of a home-staging business was outside his company’s warehouse when he saw the defendant loading chairs into a Toyota Land Cruiser. After half-heartedly confronting the defendant, the employee left the scene and contacted police. Subsequently, the police determined the Toyota had been stolen and located it parked on the street with the chairs inside it. The defendant was also in the vehicle, asleep in the passenger seat with the keys and registration in his pocket. (Jackson, supra, 26 Cal.App.5th at p. 375-376.) He was charged with and convicted of a felony violation of section 10851(a) and with second degree robbery of the chairs. (Id. at p. 375.) At trial, the prosecutor’s primary theory regarding the section 10851(a) charge was illegal driving, based on circumstantial evidence that the defendant must have driven the Toyota away from the warehouse where he was confronted by the witness. However, during closing argument, the prosecutor alluded to other theories, based on the defendant’s “taking” or “possessing” the Toyota, which were supported by direct evidence that the defendant possessed and exercised control over the stolen vehicle at a time he was not driving it. (Id. at p. 376.)

On appeal, the Jackson court found that an instructional error permitting the jury to convict the defendant of a felony violation of section 10851(a) based on an invalid theft theory or a valid driving theory was prejudicial because the prosecutor did not clearly elect the valid driving theory and the trial evidence did not establish beyond a reasonable doubt that “not a single juror relied on taking rather than driving to convict Jackson.” (Jackson, supra, 26 Cal.App.5th at p. 380, italics omitted.) In reaching this conclusion, the Jackson court rejected the People’s argument that there was no evidence of a taking of the Toyota. The court reasoned that although evidence of driving may have been stronger than the evidence of taking, a conviction based on stealing was supported by substantial evidence that the defendant possessed the Toyota under suspicious circumstances shortly after it was stolen. Furthermore, the evidence did not “permit” the court to “conclude that no juror could have found that Jackson stole the vehicle without also finding that he engaged in posttheft driving” because the witness did not see the defendant driving the Toyota after he loaded chairs into it and there was no other “direct evidence of driving that compelled the conclusion that if Jackson stole the vehicle, he also drove it after the theft.” (Id. at pp. 380–381.)

The present case is the opposite of Jackson. The prosecution presented evidence that Hyson was driving a stolen car that was subsequently abandoned and found to contain other stolen property. Thus, if the jury concluded that Hyson stole the Acura, it was because they also concluded that she was driving it, whereas in Jackson, the prosecution did not present any direct evidence that the defendant drove the stolen Toyota. Instead, the section 10851(a) charge was based on evidence that the defendant was seen loading stolen goods into the Toyota and was subsequently found sleeping in that car. This evidence that the defendant had actual possession of the Toyota could have been used by the jury to infer a theft of the vehicle even if they were not convinced that defendant drove the car after he loaded it with the stolen chairs, thus precluding a finding of harmless error. Here, by contrast, because the substantial evidence that Hyson illegally drove the Acura is the same evidence that could potentially have been used to find that she stole it, we can conclude beyond a reasonable doubt that the jury instruction error was harmless.

B. Imposing Harsher Punishment for Unlawful Driving than For Theft

Hyson contends that even if the jury instruction error was not prejudicial, her felony conviction for violating section 10851(a) cannot stand for two related reasons.

First, Hyson contends that section 10851(a) would violate constitutional equal protection if it is interpreted to authorize felony punishment for unlawful driving of a vehicle that is not worth more than $950, when felony punishment for unlawful taking of that same low-value vehicle is prohibited. This same equal protection challenge was rejected in People v. Morales (2019) 33 Cal.App.5th 800, 808–809 (Morales), a published decision from this division not mentioned by either party.

Offenders who violate the unlawful driving prong of section 10851(a) are not similarly situated to defendants who commit a theft by violating the unlawful taking prong of this law. (Morales, supra, 33 Cal.App.5th at p. 809.) Unlawful post-theft driving is a separate, distinct violation of section 10851(a), which does not constitute a theft offense under controlling precedent. (Lara, supra, 6 Cal.5th 1136-1137). Therefore, this crime is not governed by the statutory mandate that “obtaining any property by theft where the value of the . . . property . . . does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor.” (§ 490.2.) Because Hyson fails to establish that the two classes receiving unequal treatment under section 10851(a) are similarly situated, her “ ‘equal protection claim cannot succeed, and does not require further analysis.’ ” (Morales, at p. 809.)

Hyson’s second contention is that section 490.2, which imposes the $950 threshold for treating a theft as a felony, must be interpreted to apply to unlawful driving under section 10851(a) so as to avoid absurd results. Again, this argument was rejected in Morales, supra, 33 Cal.App.5th at pp. 806–807. By its plain meaning, section 490.2 affects only theft offenses and does not apply to crimes that do not constitute theft, including post-theft driving of a vehicle in violation of section 10851(a). Hyson fails to persuade us that a straightforward application of this law leads to absurd consequences. Nor do we agree with Hyson that post-theft driving is necessarily a less serious offense than the unlawful taking of a low value vehicle. “Driving is an inherently dangerous activity, driving illegally even more so, and although the theft of a car is a single incident, driving a car without its owner’s permission may be done many times, multiplying the threat to public safety. Far from being absurd, then, imposing harsher punishment on driving violations of section 10851 is entirely reasonable in this respect,” we previously held. (Morales, at p. 807.)

IV. Hyson’s Identity Theft Convictions

Next, Hyson challenges the sufficiency of the evidence to support her two misdemeanor convictions for fraudulent possession of personal information in violation of section 530.5, subdivision (c)(1), which states: “Every person who, with the intent to defraud, acquires or retains possession of the personal identifying information . . . of another person is guilty of a public offense . . . .”

“Our role when reviewing the sufficiency of the evidence is to evaluate the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Ramos (2016) 244 Cal.App.4th 99, 104.) “ ‘ “The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ ” ’ ” ’ [Citations.] Reversal on the basis of insufficient evidence is ‘unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].” ’ ” (People v. Truong (2017) 10 Cal.App.5th 551, 556, italics omitted.)

Hyson contends there is no evidence, substantial or otherwise, that she ever had possession of the two driver’s licenses found in the backpack near the abandoned Acura, which are the basis for her misdemeanor convictions. As support for this argument, Hyson invokes the principle that “[m]ere access or proximity to stolen goods is not enough to infer possession [citation].” (People v. Martin (1973) 9 Cal.3d 687, 696.) In Martin, for example, there was insufficient evidence to support a defendant’s conviction for receipt of stolen goods that were discovered in the back of a co-defendant’s car because the fact that the defendant was arrested near the car was insufficient to establish that he possessed those goods.

The present case is materially different from cases like Martin. Here there was substantial evidence that Hyson fled from police in a stolen car, which contained stolen property, and that she abandoned that car after crashing it into a barrier. There was also evidence that some of the stolen items had fallen out of the car or been dropped when Hyson fled on foot. From this evidence a reasonable inference could be drawn that Hyson dropped the backpack on the ground when she fled the scene. In other words, this is not a case in which possession was inferred from the defendant’s proximity to stolen goods but a case in which the identity of the person who stole the personal information documents that were found in the Acura and in the backpack was inferred from circumstances established by the evidence.

V. Fines and Fees Imposed at Sentencing

Hyson contends the trial court erred by requiring her to pay statutory court fees without finding that she has the ability to pay them. As support for this claim, Hyson relies on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which was decided after she was sentenced in this case.

A. Additional Background

The pre-sentence report recommended that the court require Hyson to pay the following fines and fees in addition to victim restitution: (1) a $4,800 restitution fine (§ 1202.4); (2) a $250 probation investigation fine (§ 1203.1b); (3) a $40 per conviction court security fee for a total of $160 (§ 1465.8); and (4) a $30 per conviction assessment fee for a total of $120 (Govt. Code, § 70373).

At Hyson’s sentencing hearing, there was no substantive discussion about the recommended sentencing fines and fees. After announcing Hyson’s prison sentence, and denying her probation, the court imposed a restitution fine in the amount of $4,800 pursuant to section 1202.4, and then ordered her to pay victim restitution. Defense counsel did not object to the restitution fine, but she did object to the victim restitution order and requested a hearing as to that matter.

Then, after ordering Hyson to submit DNA samples, the court stated: “The court makes the following civil order which is not a condition of probation: [¶] One, the defendant is ordered to pay a probation investigation fee of $250 pursuant to Penal Code section 1203.1[b]. The defendant has been advised of the amount and right to have a hearing with counsel concerning her ability to pay. [¶] Number two, defendant is ordered to pay a $40 per conviction court operation assessment fee pursuant to section 1465.8 of the Penal Code, for a total of $160. [¶] And number three, to pay $30 per conviction—criminal conviction assessment fee pursuant to section 70373, the Government Code, for a total of $120.” Defense counsel did not object to these rulings.

B. Analysis

Hyson challenges the orders imposing the $40 per conviction court assessment and the $30 per conviction criminal conviction assessment. She contends that requiring her to pay these statutory fees totaling $280 without any consideration of her ability to pay them violates her due process rights under the reasoning of Dueñas, supra, 30 Cal.App.5th 1157. (But see People v. Hicks (2019) 40 Cal.App.5th 320, rev. granted (11/26/2019) 2019 Cal. LEXIS 8958 [disagreeing with Dueñas].) Initially, Hyson also challenged the imposition of a restitution fine, but she subsequently withdrew this claim of error.

The Dueñas defendant was convicted of driving on a suspended license and sentenced to probation. (Dueñas, supra, 30 Cal.App.5th 1157.) At her sentencing hearing she objected that she did not have the ability to pay statutory fees and fines, requested a hearing on the matter and produced undisputed evidence establishing her inability to pay. (Id. at p. 1162.) Consequently, the court struck some fees, but imposed others that it concluded were mandatory. (Id. at pp. 1162–1163.) On appeal, the Dueñas court found it was a violation of constitutional due process to impose court assessments required by section 1465.8 and Government Code section 70373, neither of which was intended to be punitive, without finding that the defendant had the ability to pay them. (Id. at p. 1168.) The court also found that, although a restitution fine imposed under section 1202.4 was considered additional punishment for defendant’s crime, that fine posed constitutional concerns because the statute required imposition of a minimum fine irrespective of the defendant’s ability to pay it. To avoid the constitutional problem, the court held that although section 1202.4 requires a trial court to impose a minimum fine regardless of ability to pay, execution of the fine must be stayed until the defendant’s ability to pay is determined. (Id. at p. 1172.)

Unlike the Dueñas defendant, Hyson did not request a hearing regarding her ability to pay any statutory fine or assessment imposed on her. Thus, she forfeited her claim that these fines should not have been imposed. (People v. Aguilar (2015) 60 Cal.4th 862, 864 [appellate forfeiture rule applies to probation fines and attorney fees imposed at sentencing]; People v. McCullough (2013) 56 Cal.4th 589, 596–597 [defendant forfeits appellate challenge to the sufficiency of evidence supporting a Government Code section 29550.2, subdivision (a) booking fee if objection not made in the trial court]; People v. Avila (2009) 46 Cal.4th 680, 729 [appellate forfeiture rule applies to defendant’s claim that restitution fine amounted to an unauthorized sentence based on his inability to pay]; People v. Nelson (2011) 51 Cal.4th 198, 227 [claim that trial court erroneously failed to consider ability to pay a restitution fine forfeited by the failure to object].)

Hyson contends that objecting to statutory fines would have been futile because at the time of her sentencing hearing she did not have the benefit of the Dueñas decision. (See People v. Castellano (2019) 33 Cal.App.5th 485, 488–489; but see People. v Frandsen (2019) 33 Cal.App.5th 1126, 1154–1155 [positing that Dueñas was based on settled principles of due process].) This argument misconstrues the reason for finding a forfeiture in the present case. Forfeiture did not result from Hyson’s failure to make a substantive due process objection to the statutory fines but rather from her failure to request a hearing or to otherwise dispute her ability to pay them at all.

In contrast to Dueñas, in this case the court imposed a restitution fine that exceeded the $300 minimum fine required by section 1202.4, and therefore Hyson’s ability to pay was a statutory consideration under subdivision (d) of that statute. However, Hyson did not object that she lacked the ability to pay a $4,800 restitution fine or request an ability-to-pay hearing. Moreover, ability to pay was also a statutory consideration for imposing a probation investigation fee under section 1203.1b. Yet again, Hyson did not request an ability-to-pay hearing even after the court expressly stated she was entitled to one. The failure to request such a hearing under these circumstances resulted in a forfeiture of Hyson’s claim for purpose of appellate review.

We note that Hyson does not challenge the probation investigation fee and has withdrawn her appellate challenge to the restitution fine. But Hyson cannot avoid the consequences of her failure to request an ability-to-pay hearing by limiting her appellate challenge to the specific assessments imposed under section 1465.8 and Government Code section 70373. After all, the same evidence in the same hearing that would have addressed Hyson’s ability to pay the $4,800 restitution fine and the $250 probation investigation fee could have also established her inability to pay these assessments, had Hyson chosen to litigate that issue. Unlike the Dueñas defendant, Hyson had a statutory right to an ability-to-pay hearing that she did not exercise, thus forfeiting her appellate claim that such a hearing was required. (See People v. Johnson (2019) 35 Cal.App.5th 134, 138, fn. 5 [recognizing that the “distinction between minimum and above minimum restitution fines has consequences for the applicability of forfeiture doctrine”].)

VI. The Prior Prison Term Sentence Enhancements Must Be Stricken

Pursuant to a supplemental brief, Hyson requests that this court strike two one-year sentence enhancements that the trial court imposed under section 667.5(b), arguing that an amendment to this statute that will go into effect in January 2020 applies retroactively to her case.

Hyson was charged with 13 prior convictions, as well as 5 prior prison terms subjecting her to sentence enhancements under section 667.5(b). Section 667.5(b) currently states that when a defendant is convicted of a felony and sentenced to prison, “in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony . . . .” The trial court found all enhancement allegations were true, imposed consecutive one-year terms for two of Hyson’s prior prison terms and struck the other three.

Effective January 1, 2020, section 667.5(b) will enhance punishment only for sexually violent priors. The amended statute will state that “where the new offense is any felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code . . . .” Under the amended statute, Hyson would not be subject to any additional sentence enhancement because her prior prison terms were not for sexually violent offenses.

Hyson contends that this statutory amendment to section 667.5(b) applies retroactively to her because it will go into effect before the judgment in this case becomes final. (Citing In Re Estrada (1965) 63 Cal.2d 740 (Estrada).) In Estrada, supra, 63 Cal.2d at p. 745, our Supreme Court stated that “[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too serve and that a lighter punishment is proper as punishment for the commission of the prohibited act.” From this holding came the Estrada rule, which provides that “ ‘when a statute mitigating punishment becomes effective after the commission of the prohibited act but before final judgment the lesser punishment provided by the new law should be imposed in the absence of an express statement to the contrary by the Legislature.’ ” (People v. Woods (2018) 19 Cal.App.5th 1080, 1090.) “[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed.” (People v. Vieira (2005) 35 Cal.4th 264, 306.)

The People concede that once the amendment to section 667.5(b) goes into effect, “it will apply retroactively to defendants whose judgments are not yet final.” They also concede that because Hyson’s prior prison terms were not for sexually violent offenses, the amendment will apply retroactively to her. Nevertheless, they argue that the issue whether amended section 667.5(b) applies retroactively to this case is not ripe for review because, until the amendment goes into effect in January 2020, there is a possibility that it may not become operative.

Because the record shows that the judgment in this case will not yet be final on January 1, 2020, we reject the People’s contention that this issue is not ripe for review. As the People concede, under the Estrada rule Hyson will be entitled to the benefit of amended section 667.5(b), which means that the sentence enhancements previously imposed pursuant to this statute must be stricken. (See People v. Warren (Nov. 13, 2019, No. S258351) ___Cal.5th___ [2019 Cal. LEXIS 8382] [Supreme Court grant of review and transfer to Court of Appeal to reconsider applicability of 2020 amendment to non-final judgment].)

“[W]hen part of a sentence is stricken on review, on remand for resentencing ‘a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.’ ” (People v. Buycks (2018) 5 Cal.5th 857, 893.) Thus, as Hyson acknowledges, the proper remedy is a remand for resentencing.

DISPOSITION

The sentence enhancements imposed pursuant to section 667.5(b) are stricken and this case is remanded for resentencing. In all other respects, the judgment is affirmed.

_________________________

TUCHER, J.

WE CONCUR:

_________________________

POLLAK, P. J.

_________________________

BROWN, J.

People v. Hyson (A153805)

Filed 12/23/19 P. v. Froman CA3

Opinion following rehearing

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

(Tehama)

—-

THE PEOPLE,

Plaintiff and Respondent,

v.

STUART EUGENE FROMAN,

Defendant and Appellant.

C087868

(Super. Ct. Nos. 17CR001153, 17CR001651, 17CR002020)

OPINION ON REHEARING

In his initial briefing, appointed counsel for defendant Stuart Eugene Froman filed an opening brief that set forth the facts of the case and asked this court to review the record to determine whether there were any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding none, we affirmed the judgment.

In a petition for rehearing, counsel contended that the matter should be remanded for a hearing on defendant’s ability to pay the fines, fees, and assessments imposed by the trial court, or else this court should strike the court facilities assessment and conviction assessment and stay the restitution fines absent a finding that defendant has the present ability to pay those fines. (People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).) We granted rehearing, vacated our earlier opinion and obtained further briefing from the parties. We now conclude remand is not required.

We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

FACTUAL AND PROCEDURAL BACKGROUND

In case No. 17CR001153, an information filed May 31, 2017, charged defendant with failure to appear (Pen. Code, § 1320.5) and alleged defendant committed the offense while out on bail on his own recognizance (§ 12022.1). On June 2, 2017, defendant pleaded guilty to failure to appear, in return for the prosecutor’s dismissal of the on-bail enhancement and charges alleged in other pending cases. On June 26, 2017, the trial court suspended imposition of sentence and placed defendant on five years of probation, on terms and conditions including 120 days in county jail and 80 hours of community service.

In case No. 17CR001651, a felony complaint filed June 22, 2017, charged defendant with possession of metal knuckles (§ 21810—count I), unlawfully carrying a concealed dirk or dagger (§ 21310—count II), misdemeanor possession of methamphetamine (Health & Saf. Code, § 11377—count III), and misdemeanor possession of a pipe and paraphernalia used for smoking a controlled substance (Health & Saf. Code, § 11364—count IV). On September 5, 2017, defendant pleaded guilty to count II. The trial court placed defendant on three years of probation subject to terms and conditions that included 90 days in county jail, and dismissed the balance of the complaint.

In case No. 17CR002020, a felony complaint filed August 8, 2017, charged defendant and a codefendant with being a felon in possession of a firearm (§ 29800, subd. (a)—count I), being a felon in possession of ammunition (§ 30305, subd. (a)—count II), unlawfully carrying a concealed weapon in a vehicle (§ 25400, subd. (a)(1)—count III), and unlawfully carrying a concealed dirk or dagger (§ 21310—count IV). On September 5, 2017, defendant pleaded guilty to count II. The trial court placed defendant on three years of supervised probation, subject to terms and conditions including 90 days in county jail, and dismissed the balance of the complaint.

The parties stipulated that the factual basis for defendant’s plea in case No. 17CR001153 was found in the trial court’s file, which showed that he had pleaded guilty to being a person charged with the offense of felon in possession of a firearm, being released from custody on bail, and willfully and unlawfully failing to appear in court on December 13, 2016. As to the other two cases, the parties stipulated that the factual basis could be taken from the Tehama County Sheriff’s Department’s reports. The report in case No. 17CR001651 stated that in the early morning of May 12, 2017, an officer, after placing defendant under arrest for outstanding misdemeanor warrants, found metal knuckles, a methamphetamine pipe, methamphetamine, a sharpened razor blade knife, and tinfoil with heroin residue on defendant’s person. The report in case No. 17CR002020 stated that in the early morning of August 7, 2017, an officer who arrested defendant on an outstanding warrant while he was in a vehicle found a sharpened metal file, a concealed switchblade knife, and a single-edge folding razor on his person, and in the vehicle found another sharpened metal file, a black box containing a glass pipe with methamphetamine residue, a loaded .45-caliber handgun, and hypodermic syringes inside a black pack that also held defendant’s wallet and identification.

On August 17, 2017, a petition for revocation of probation was filed in case No. 17CR001153, based on the offense alleged in case No. 17CR002020. On September 5, 2017, defendant admitted the violation of probation.

The trial court revoked and reinstated probation on the same terms and conditions.

On April 26, 2018, a second petition for revocation of probation was filed in case No. 17CR001153, alleging defendant admitted to using heroin and methamphetamine and possessing a controlled substance and drug paraphernalia. A first petition for revocation of probation in case Nos. 17CR001651 and 17CR002020 was also filed based on these allegations. On June 1, 2018, defendant admitted all of the violations.

On August 17, 2018, an “Amended Petition for Revocation of Probation” was filed in all three cases, alleging that defendant cashed a stolen check at a bank and was in possession of stolen checks; however, the prosecutor withdrew the petition on August 21, 2018.

On August 21, 2018, at the consolidated sentencing proceeding for all three cases, the trial court rejected defendant’s request to be sent to Adult Felony Drug Court, agreeing with the probation department and the Drug Court Team that he was unsuitable because his criminal history stemmed primarily from his attraction to criminality rather than from addiction. The court also denied defendant’s request for reinstatement of probation.

The trial court sentenced defendant to a total state prison term of four years four months, consisting of the upper term sentence of three years for failure to appear (case No. 17CR001153), plus eight months (one-third the middle term) consecutive for possession of a concealed dirk or dagger (case No. 17CR001651) and another eight months consecutive for possession of ammunition (case No. 17CR002020). The court awarded 332 days of presentence custody credits, consisting of 166 actual days and 166 conduct days, all assigned to case No. 17CR001153.

DISCUSSION

1.0 Defendant is Not Entitled to a Remand to Challenge the Imposed Fines and Fees

As part of defendant’s sentence, the trial court imposed the previously stayed restitution fine of $600 (§ 1202.4, subd. (b)) and a matching suspended parole revocation fine as to each case. The court also ordered the immediate payment of the matching probation revocation fines as to each case, probation having been revoked. In addition, the court imposed a $120 court operations assessment (§ 1465.8) and a $90 conviction assessment (Gov. Code, § 70373).

In defendant’s petition for rehearing, he argued that because the trial court did not hold a hearing on his ability to pay the fines and assessments noted above, and the record not only does not show he has the ability to pay them but strongly suggests he does not, he is entitled to relief under Dueñas, supra, 30 Cal.App.5th 1157 (review on own motion declined and request for depublication denied Mar. 27, 2019, S254210). Defendant also argued he did not forfeit this contention by failing to object when the trial court imposed the fines and assessments, because (1) their imposition was unauthorized as a matter of law in light of Dueñas; (2) a defendant may raise a contention for the first time on appeal that asserts the deprivation of fundamental constitutional rights, such as the rights to due process, equal protection, and the freedom from excessive fines; and (3) objection would have been futile because there was no authority supporting the objection at the time of sentencing.

Although it is defendant’s burden to establish an inability to pay (accord, People v. Kopp (2019) 38 Cal.App.5th 47, 96 (Kopp) review granted Nov. 13, 2019, S257844; People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 (Frandsen), review den. July 17, 2019, S255714), defendant neither objected to these fines generally nor asserted his inability to pay them (to refute the presumption that defendants capable of working who are serving a lengthy prison term will be able to pay assessments from prison wages (People v. Johnson (2019) 35 Cal.App.5th 134, 139, review den. Aug. 14, 2019, S256281)). (The defendant in Dueñas had in fact sought a hearing on her ability to pay on constitutional grounds. (Dueñas, supra, 30 Cal.App.5th at pp. 1162-1163.)) As a result, existing authority would hold that defendant has forfeited the issue on appeal (Frandsen, supra, 33 Cal.App.5th at pp. 1154-1155), although there is also authority to the contrary (Johnson, at pp. 137-138; People v. Castellano (2019) 33 Cal.App.5th 485, 489, review den. July 17, 2019, S255551). There is also settled law that failure to object to the amount of a restitution fine on the ground of inability to pay forfeits that issue on appeal. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033, (Gutierrez) review den. Sept. 18, 2019, S256881 [failure to object to maximum restitution fine on ground of inability to pay forfeits Dueñas issue].) Defendant has thus forfeited our plenary review of this issue.

In any event, subsequent published authority has called the reasoning of Dueñas into question. As digested in People v. Hicks (2019) 40 Cal.App.5th 320 (review granted Nov. 26, 2019, S258946) (Hicks), Dueñas is premised on authority involving a right under due process of access to the courts, and a bar against incarceration for an involuntary failure to pay fees or fines. (Hicks, at p. 325.) However, a postconviction imposition of fees and fines does not interfere in any respect with the right of access to either the trial or appellate court. (Id. at p. 326.) The postconviction imposition of fees and fines also does not result in any additional incarceration, and therefore a liberty interest that due process would protect is not present. (Ibid.) Since the stated bases for the conclusion in Dueñas do not support it, the question is whether due process generally otherwise compels the same result. (Hicks, at p. 327.) The People have a fundamental interest in punishing criminal conduct, as to which indigency is not a defense (otherwise, defendants with financial means would suffer discrimination). It would also be contrary to the rehabilitative purpose of probation if a court were precluded at the outset from imposing the payment of fees and fines as part of educating a defendant on obligations owed to society. (Id. at pp. 327-328.) “For the reasons set forth above, we conclude that due process does not [generally] speak to this issue and that Dueñas was wrong to conclude otherwise.” (Hicks, at p. 329.) Kingston, supra, 41 Cal.App.5th at page 279, agreed with Hicks.

Aviles also found Dueñas to be wrongly decided, finding the only proper limit on fees and fines is the constitutional prohibition against excessive fines under the Eighth Amendment to the federal Constitution. (Aviles, supra, 39 Cal.App.5th at pp. 1061, 1067, 1069-1072; accord, Kopp, supra, 38 Cal.App.5th at p. 96, rev.gr.)

Therefore, given the forfeiture of any objection to the restitution fine under consistent authority and the absence of any valid claim under due process in connection with the remaining fees and fines, we conclude defendant is not entitled to a remand for the trial court to consider his ability to pay either financial obligation as a matter of constitutional due process. We therefore reject this argument.

So far as defendant contends the issue should be addressed under the Eighth Amendment’s prohibition against excessive fines, he has failed to make a developed argument on this point that is distinct from his due process argument. In his original rehearing petition, he did not discuss excessive fines at all, other than to cite (with a “see” signal) Timbs v. Indiana (2019) __ U.S. __ [203 L.Ed.2d 11], which he asserted—without a direct quotation or a pin cite—stands for the proposition that imposition of fines and assessments without a determination of ability to pay “constitutes a violation of due process, equal protection and the right to be free from excessive fines under the United States and California Constitutions.” In his supplemental reply brief, he acknowledges that Dueñas itself claims the excessive fines analysis is so similar to the due process analysis that it makes no difference which way the issue is examined. (See Dueñas, supra, 30 Cal.App.5th at p. 1171, fn. 8.) Because defendant has offered no argument as to excessive fines that is distinguishable from his due process argument, we need not discuss the point further.

For all of the above reasons, we decline to remand the matter for a hearing on defendant’s ability to pay the imposed restitution fines, fees and assessments, or to strike or stay any of them.

2.0 Correction to Abstract of Judgment

We note an error in the abstract of judgment. Defendant pleaded guilty to section 1320.5 in case No. 17CR001153. The abstract reflects a conviction of section 1320, subdivision (b). We will instruct the trial court to correct item 1 of the abstract to indicate section 1320.5.

DISPOSITION

The trial court is directed to correct item 1 of the abstract of judgment to indicate a violation of Penal Code section 1320.5, rather than section 1320, subdivision (b). In all other respects, the judgment is affirmed. The clerk of court shall send a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.

/s/

Butz, J.

We concur:

/s/

Hull, Acting P. J.

/s/

Krause, J.

Filed 12/23/19 P. v. Glaude 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

THE PEOPLE,

Plaintiff and Respondent,

v.

CHRISTOPHER JULIUS GLAUDE,

Defendant and Appellant.

F076021

(Super. Ct. No. F12909264)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge.

Peter Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Defendant Christopher Julius Glaude was charged with multiple counts related to three different incidents involving stolen vehicles and the burglary of an apartment. On appeal, defendant challenges his convictions, arguing (1) the prosecution failed to establish an essential element of his felony conviction for evading a police officer (count 12)—that the pursuing officer was wearing a distinctive uniform—so this conviction must be reversed; (2) the court reversibly erred in failing to instruct the jury the People had to prove the value of the vehicles exceeded $950 to establish a felony violation of Vehicle Code section 10851, subdivision (a), so these convictions must be reversed; (3) the prosecutor improperly commented in closing argument upon defendant’s failure to testify in violation of Griffin v. California (1965) 380 U.S. 609, 615 (Griffin) by arguing defendant found a stolen car but there was no evidence he tried to return it to police; (4) the trial court abused its discretion in excluding evidence of alleged third party culpability; and (5) the prosecutor engaged in prejudicial misconduct through his use of an everyday example to illustrate the reasonable doubt standard.

We reverse defendant’s convictions as to counts 1, 10, and 12 and remand for further proceedings consistent with this opinion. In all other respects, we affirm the judgment.

FACTUAL BACKGROUND

Defendant was charged with three felony counts of unlawfully driving or taking a vehicle on different occasions in violation of Vehicle Code section 10851, subdivision (a) (counts 1, 5 & 10), three felony counts of receiving stolen property, a motor vehicle, in violation of Penal Code section 496d, subdivision (a) (counts 2, 6 & 11), felony residential burglary in violation of sections 459 and 460, subdivision (a) (count 3), misdemeanor receipt of stolen property in violation of section 496, subdivision (a) (count 4), misdemeanor resisting a peace officer in violation of section 148, subdivision (a)(1) (count 7), carjacking in violation of section 215, subdivision (a) (count 8), felony robbery in violation of section 211 (count 9), and felony evading a peace officer in violation of Vehicle Code section 2800.2, subdivision (a) (count 12). He was also charged with special allegations that he had two prior strikes (§ 667, subds. (b)–(i)), two prior serious felony convictions (§ 667, subd. (a)(1)), and four prison priors (§ 667.5, subd. (b)). A jury convicted him of counts 1, 2, 5, 6, 7, 8, 9, 10, 11, and 12 and found him not guilty on counts 3 and 4. The trial court found true all of the special allegations after defendant waived a jury trial on them.

October 23, 2012, theft or driving and receipt of Augustin Serna and Jose Payan’s car (counts 1 & 2)

On October 23, 2012, Jose Payan was selling his brother-in-law Augustin Serna’s car, a 1991 or 1992 Chevrolet Caprice. Only Payan had permission to have the car. He parked it in a parking lot with a “for sale” sign and also put it on Craigslist. According to Payan, defendant called him and expressed interest in the car and they set up a meeting. At trial, Payan identified defendant as the man he met with at the car. According to Payan, defendant looked the same and “there [was] just no way it [was] not him. … [H]e is the one who stole my car.” Defendant was with another man and woman at the meeting.

Payan recalled defendant got in the Caprice and made the back tires spin on the pavement such that smoke was coming out. Defendant then took the car for a test drive and never brought it back. The other man and woman left. According to Payan, he was “sure” defendant was the person who called him to set up the meeting. He explained when they were together, defendant “had the phone with him and he would be the one that would answer it.” After defendant left with the car, Payan called the phone number used to set up the meeting to reach him and find out when defendant was going to return. According to Payan, defendant “was answering that phone, so … it had to have been him. It couldn’t have been anybody else.” Defendant said “I’m on my way” repeatedly, and then, later, he stopped answering. Defendant did not have permission to drive and keep possession of the car.

Officer Daniel Havens worked as a plainclothes officer with the Help Eliminate Auto Theft (HEAT) team of the California Highway Patrol (CHP) and focused on the investigation of vehicle thefts in 2012. At the time, Officer Havens drove an unmarked Chevrolet Silverado and he would drive around looking for stolen cars on his list. At the end of October 2012, Officer Havens participated in the investigation related to the stolen 1992 Chevrolet Caprice. On October 30, 2012, Officer Havens located the Caprice being driven out of a motel parking lot. Officer Havens “thought it was [defendant driving] but … wasn’t a hundred percent certain at the time.” Another CHP investigator found the car in the parking lot of a Red Roof Inn after Officer Havens lost sight of it. Two investigators searched the car and found a backpack in the backseat that had been taken during a residential burglary.

Officer Havens recalled “contacting the occupants” of the car, but defendant ran away from the scene. Officer Havens ordered defendant to stop and defendant did not comply. Eventually, defendant was apprehended and taken into custody. According to Officer Havens, he had been wearing either a shirt issued by the HEAT team that has a pull-down pocket displaying a badge and “CHP” displayed on the back, or a tactical vest issued by CHP that has shoulder straps wrapping around the waist and “CHP” displayed across the back.

On January 10, 2013, Officer Havens interviewed Savana Meeker. Meeker reported that on October 23, 2012, defendant and Goldie Walker saw the Caprice, the owner arrived, they went for a test drive, and, after the test drive, Meeker and Walker walked away. Defendant “remained in the vehicle, was smoking the tires[, and t]old the owner of the car that he was going to move it.” Defendant eventually picked up Meeker and Walker in the Caprice about a block away. Meeker reported knowing that she was getting in a stolen car.

October 23, 2012 residential burglary (count 3, intent to commit larceny) and receipt of stolen property of Seanna McDonald (count 4)

In October 2012, college student Seanna McDonald was dating Darren Jones when his apartment was burglarized. McDonald and Jones had gone to Jones’s apartment after class and McDonald left her green backpack there. They rode their bicycles to get something to eat and, when they returned to the apartment, the door had been kicked in and things were missing, including McDonald’s backpack and some electronics. McDonald recalled seeing an African-American male and a white female sitting on the steps near adjacent apartments. Police eventually recovered McDonald’s backpack from Payan’s stolen Caprice and she identified it as hers.

During Officer Havens’s January 10, 2013, interview with Meeker, she described her and defendant’s involvement in the burglary of Jones’s apartment. She recalled three people leaving the apartment on bicycles before she, Walker, and defendant entered. Walker kicked in the apartment door and instructed Meeker to carry items out. Defendant and Walker also took items out of the apartment and Meeker was to whistle “if something was going on.” Walker instructed Meeker to carry out the green backpack later recovered in the Caprice. Defendant, Walker, and Meeker took the big items they stole to a house and the smaller items, like games, to Game Stop.

Meeker was on parole at the time of the trial for the October 23, 2012, residential burglary and November 12, 2012, robbery with which defendant was charged. She testified for the prosecution. Meeker denied recalling either incident and claimed she was “very high on drugs back then” so “[e]verything’s a blur.” At that time, in late 2012, Meeker was in a relationship with Goldie Walker.

October 26, 2012, theft or driving and receipt of Danielle Kent’s car, and resisting arrest (counts 5, 6, & 7)

On October 25, 2012, Danielle Kent was staying at the Red Roof Inn in Fresno. She was moving boxes up to her hotel room and left her keys in the car, a 2008 silver Honda Accord, when one of her dogs got loose. Kent caught the dog and put him in her room. When she came back downstairs, her car was gone. Kent called and reported the car stolen and an officer returned her call. Kent was unfamiliar with defendant and denied giving him or anyone else permission to drive her car.

Around 12:15 p.m. on October 26, 2012, CHP patrol sergeant Corben Whitney was part of the HEAT team conducting auto theft investigations while in plainclothes. He saw a 2008 Honda Accord occupied by at least three Black male adults, one Hispanic female adult, and two very small children. He noticed the car because the two children were not secured in a safety device of any kind in the back seat and were instead standing up. Whitney then realized the car was on the list of stolen cars based on its license plate number. The vehicle was registered to Danielle Kent. Sergeant Whitney followed the car and eventually found it parked with the original driver walking away from it and defendant now in the driver’s seat. Defendant drove the car into a motel parking lot and Whitney called for backup.

Officer Havens responded to Sergeant Whitney’s call for backup and reestablished surveillance of the Accord while Whitney searched for the original driver. The occupants had left the car. When they returned, Havens called for backup to “take down the vehicle and the occupants,” meaning the police would surround the vehicle and park very close to it so it could not build any momentum to get away or to harm anyone. As the police attempted the takedown, defendant ran away on foot.

Police eventually apprehended defendant and Sergeant Whitney interviewed him a few minutes later. Defendant denied stealing the car and stated “another person who was in the car that he knew as Money stole the car.” Defendant admitted he knew the car was stolen and had driven it. He also admitted he ran from the police and knew it was law enforcement pursuing him. Defendant was taken into custody but was released within days.

November 12, 2012, second degree robbery, theft or driving, receipt, and carjacking of Alejandro Sanchez’s car, and felony evasion of an officer (counts 8, 9, 10, 11 & 12)

On November 12, 2012, Alejandro Sanchez received phone calls inquiring about a 2005 blue Honda Civic he had posted for sale on Craigslist. Sanchez set up a meeting at a donut shop. Four people—two males and two females—arrived in a Toyota pickup truck and asked to test drive the car. Sanchez did not identify defendant as one of the people that met him at the donut shop. The two females got in the Civic and Sanchez rode in the back seat as they took it for a “test drive.” They drove to an apartment complex where the women said they were going to have a mechanic check the car; the other two men followed them in the truck.

Sanchez identified defendant in court as the person whom he met and who acted like a mechanic. Defendant opened the hood of the car and checked it. He then suggested another test drive, and Sanchez accompanied defendant and one of the females. The female drove the car, defendant was in the passenger seat, and Sanchez sat in the back seat. They eventually stopped the car and defendant told Sanchez to get out because he wanted Sanchez to drive.

Sanchez and defendant both exited the car and as Sanchez walked towards the driver’s side, defendant pulled out a gun and pointed it at Sanchez’s face. Defendant told Sanchez, “‘Give me all your stuff, your wallet, your phone.’” Sanchez was scared because he did not know if defendant was going to shoot him. He put everything he had including his cellular phone and wallet, which had around $300 in it, on the back of the car. Sanchez then took off running, and defendant got in the car and left. Sanchez called the police from someone else’s phone and the police picked him up and took him to the station. Sanchez met with Sergeant Michael Peterka of the Fresno police who took Sanchez to his car, which had crashed into a house. The car did not have a bumper and suffered “[a] lot of damage” such that Sanchez called it a “[t]otal loss.” Sanchez estimated the Civic was worth about $5,000 at the time.

Sergeant Peterka investigated the carjacking and robbery. He testified he spoke to Meeker on November 12 or 13, 2012, and she told him “she and three other subjects[, David Hevron, a female named Cayla White, and Goldie Walker] had decided to steal a car to take out of town.” They planned to meet someone who was selling a Honda Civic off Craigslist. “The plan was for her and Cayla to take the vehicle for a test drive and not return it.” Walker and Hevron dropped Meeker and Cayla off at a donut shop to meet the victim, Alejandro Sanchez. Meeker and Cayla agreed to take the car for a test drive, but Sanchez got into the back seat, so they were not able to take the car. They told Sanchez they wanted to have a mechanic check out the vehicle and took it to an apartment complex where Hevron and Walker were waiting. When they were at the apartment complex, defendant came out. According to Meeker, defendant was not part of the original plan and Meeker did not know he was going to be there. She denied seeing defendant pointing a weapon at someone on November 12, 2012.

Corporal Brett Vestal of the Fresno police was on duty in a marked patrol car on November 12, 2012, when he heard a broadcast regarding a carjacking of a blue Honda Civic. He went to a known high-crime area in an effort to locate the stolen car. Another officer, Sergeant Jerardo Chamalbide, broadcast over the radio that he had located the car nearby. Chamalbide was in an undercover, unmarked truck. Vestal located both Chamalbide, the Honda Civic, and an accompanying Toyota Tacoma driving on the freeway, and he followed them. All of the cars exited the freeway where other patrol cars were waiting. All of the units followed Vestal’s car as he attempted to conduct a vehicle stop of the Civic by turning on his lights and siren. The Civic ran a red light and continued westbound while the Toyota Tacoma went in a different direction. Vestal pursued the Civic with four other patrol cars behind him. At the next intersection, the Civic squeezed between two occupied lanes and ran another red light as Vestal followed. The Civic sped up to 80 miles per hour (in excess of the speed limit) and attempted to turn at another intersection but it was traveling too fast, slid into a front yard, and continued into the actual house. According to Vestal, defendant, the driver, exited the car and ran through the neighborhood. Vestal broadcasted that defendant was running and Vestal stayed with the car. Seconds later other officers arrived and they approached the Civic. Hevron was still inside the car and the police recovered a replica firearm from the passenger floorboard.

Officer James Young was working routine patrol that night with a canine officer when he heard a call regarding an armed carjacking. He followed Vestal’s patrol car once it exited the highway in pursuit of the Civic. During the high-speed chase, Officer Young prepared to release the canine officer to pursue the suspect on foot if necessary. When he saw defendant exit the Civic, Officer Young continued to follow him and stopped his patrol car. He announced “Stop, police, canine.” Defendant tried to unlock a fence gate to run into a backyard at which point Officer Young released his canine to apprehend defendant. The canine bit defendant as he tried to climb the fence and defendant fell back down to the ground. Officer Young waited for some time to approach because he was not sure if defendant was armed. Defendant refused to comply with orders to show his hands and was struggling against the officers trying to handcuff him. Eventually, Officer Young took defendant into custody.

Verdict

The jury convicted defendant of counts 1, 2, 5, 6, 7, 8, 9, 10, 11, and 12. The court sentenced defendant to 25 years to life under the three strikes law on count 8 for felony carjacking, enhanced by two 5-year terms based on defendant’s two prior section 667, subdivision (a)(1) convictions, for a total commitment on count 8 of 10 years, plus 25 years to life. The court noted the jury also found true four section 667.5, subdivision (b) prison priors but the court struck each of these one-year enhancements. The court imposed and stayed, pursuant to section 654, a 25-year-to-life sentence on count 9 (felony robbery) enhanced by two 5-year terms based on defendant’s two prior section 667, subdivision (a)(1) convictions. The court imposed and stayed aggravated terms of six years as to counts 10 and 11 (felony theft or driving and receipt of Sanchez’s car). The court imposed a 16-month consecutive term for count 12 (one-third the middle term) for defendant’s felony violation of Vehicle Code section 2800.2, subdivision (a) alleged in count 12. The court imposed a 16-month consecutive term for count 1 (one-third the middle term) for defendant’s felony violation of Vehicle Code 10851, subdivision (a) as to Serna and Payan. The court stayed an additional term on count 2 (for felony receipt of Serna/Payan’s car) pursuant to section 654. The court imposed a 16-month consecutive term for count 5 (one-third the middle term) for defendant’s felony violation of Vehicle Code 10851, subdivision (a) as to Kent’s car. The court stayed an additional term on count 6 (for felony receipt of Kent’s car) pursuant to section 654. Finally, it held defendant would receive credit for time served on misdemeanor count 7. Accordingly, the court ordered in total a 14-year determinate sentence, plus 25 years-to-life indeterminate term.

DISCUSSION

I. Insufficient Evidence Supports Defendant’s Conviction for Felony Evading a Peace Officer in Violation of Vehicle Code Section 2800.2 (count 12)

Defendant contends, and the People concede, the prosecution failed to prove the pursuing officer was a peace officer wearing a distinctive uniform as necessary to establish a violation of Vehicle Code section 2800.2, requiring reversal of defendant’s conviction on count 12.

A. Standard of Review

On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) The reviewing court’s task is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—evidence that is reasonable, credible, and of solid value upon which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolin (1998) 18 Cal.4th 297, 331; People v. Johnson (1980) 26 Cal.3d 557, 578.)

“The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) It is the jury, not the appellate court, which must be convinced of a defendant’s guilt beyond a reasonable doubt. (Ibid.) If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.)

We “presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis … is there sufficient substantial evidence to support”’ the jury’s verdict.” (Ibid.)

B. Applicable Law

Vehicle Code section 2800.1, subdivision (a) details the offense of evading a police officer. It provides in relevant part:

“(a) Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist:

“(1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp.

“(2) The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary.

“(3) The peace officer’s motor vehicle is distinctively marked.

“(4) The peace officer’s motor vehicle is operated by a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, and that peace officer is wearing a distinctive uniform.”

“Thus, the statute requires four distinct elements, each of which must be present: (1) a red light, (2) a siren, (3) a distinctively marked vehicle, and (4) a peace officer in a distinctive uniform.” (People v. Hudson (2006) 38 Cal.4th 1002, 1008.) The prosecution must prove each element beyond a reasonable doubt. (People v. Byrd (2016) 1 Cal.App.5th 1219, 1223.)

Vehicle Code section 2800.2, the statute under which defendant was charged, makes it a crime for a motorist to flee from, or attempt to elude, a pursuing peace officer’s vehicle in “violation of Section 2800.1” and “in a willful or wanton disregard for the safety of persons or property”:

“(a) If a person flees or attempts to elude a pursuing peace officer in violation of Section 2800.1 and the pursued vehicle is driven in a willful or wanton disregard for the safety of persons or property, the person driving the vehicle, upon conviction, shall be punished by imprisonment in the state prison, or by confinement in the county jail for not less than six months nor more than one year. The court may also impose a fine of not less than one thousand dollars ($1,000) nor more than ten thousand dollars ($10,000), or may impose both that imprisonment or confinement and fine.

“(b) For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs.” (Veh. Code, § 2800.2.)

C. Analysis

Defendant argues “there was no testimony about what Officer Vestal, the pursuing officer, was wearing during the [November 12, 2012,] chase.” Thus, he contends, the evidence was insufficient to establish the elements of a violation of Vehicle Code section 2800.2, subdivision (a). He notes, “[t]he fact that Officer Vestal was in a patrol unit and was in a patrol car was not sufficient to prove that he was wearing a ‘distinctive uniform.’” He further contends, if this issue is deemed waived, his counsel was ineffective for failing to object. The People agree defendant’s conviction for count 12 must be reversed because there was no evidence regarding what Corporal Vestal was wearing when he pursued defendant on November 12, 2012. We accept the People’s concessions and agree defendant’s conviction on count 12 must be reversed on this basis.

Vehicle Code section 2800.2, subdivision (a) incorporates by reference section 2800.1, subdivision (a), which requires the peace officer a defendant evaded to be wearing a distinctive uniform. (See People v. Hudson, supra, 38 Cal.4th at p. 1011.) For purposes of Vehicle Code section 2800.2, “‘a law enforcement officer’s “distinctive uniform” is the clothing prescribed for or adopted by a law enforcement agency which serves to identify or distinguish members of its force.’” (People v. Byrd, supra, 1 Cal.App.5th at p. 1223; see People v. Mathews (1998) 64 Cal.App.4th 485, 490.) “‘The statute does not require that the uniform be of any particular level of formality or that it be complete.’” (People v. Byrd, supra, at p. 1223, quoting People v. Estrella (1995) 31 Cal.App.4th 716, 724.) Nor does the statute require that the person eluding capture actually see that the police officer is wearing a distinctive uniform. (Byrd, supra, at p. 1223; Estrella, supra, at p. 724.)

As the parties note, there is no evidence in the record regarding Corporal Vestal’s attire on November 12, 2012, when he was pursuing defendant. “To infer evidence of a distinctive uniform rather than plainclothes or another less-than-distinctive outfit from the evidence in the record before us would be pure speculation.” (People v. Byrd, supra, 1 Cal.App.5th at p. 1224.) Accordingly, because this was a required element for conviction under Vehicle Code section 2800.2, subdivision (a), the evidence presented at trial was insufficient to support this conviction. (See Byrd, supra, at pp. 1223–1224 [insufficient evidence supported conviction for violation of Veh. Code, § 2800.2, subd. (a) because no evidence was presented pursuing officers were distinctively uniformed despite evidence defendant admitted he saw patrol car behind him with lights on and decided to flee from police].)

Thus, we reverse defendant’s conviction on count 12.

II. Defendant’s Convictions for Counts 1 and 10 (Felony Violations of Veh. Code, § 10851) Must Be Reversed Based on Instructional Error

Defendant next argues his Vehicle Code section 10851 convictions (counts 1, 5 & 10) must be reversed and remanded for a new trial because the court failed to give proper jury instructions.

A. Relevant Procedural History

The court instructed the jury:

“The defendant is charged in Count 1, Count 5 and in Count 10 with unlawfully taking or driving a vehicle in violation of Vehicle Code section 10851(a).

“To prove that the defendant is guilty of this crime, the People must prove that:

“One, 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.

“A taking requires that the vehicle be moved for some—for any distance, no matter how small.

“A vehicle includes a passenger vehicle.

“The defendant is charged in Count 2, Count 6 and Count 11 with receiving stolen property, a motor vehicle, in violation of Penal Code section 496d(a).

“To prove that the defendant is guilty of this crime, the People must prove that:

“One, the defendant received property that had been stolen;

“And two, when the defendant received the property, he knew that the property had been stolen.

“Property is stolen if it was obtained by any type of theft or by burglary or robbery. Theft includes obtaining property by larceny, embezzlement, false pretense or trick.

“To receive property means to take possession and control of it. Mere presence near or access to the property is not enough. Two or more people can possess the property at the same time. A person does not have to actually hold or touch something to possess it. It is enough if the person has control over it or the right to control it, either personally or through another person.”

B. Applicable Law

1. Proposition 47

“Proposition 47 was passed by voters at the November 4, 2014, General Election, and took effect the following day. The measure’s stated purpose was ‘to ensure that prison spending is focused on violent and serious offenses, to maximize alternatives for nonserious, nonviolent crime, and to invest the savings generated from this act into prevention and support programs in K–12 schools, victim services, and mental health and drug treatment,’ while also ensuring ‘that sentences for people convicted of dangerous crimes like rape, murder, and child molestation are not changed.’ (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, § 2, p. 70 (Voter Information Guide).) To these ends, Proposition 47 redefined several common theft- and drug-related felonies as either misdemeanors or felonies, depending on the offender’s criminal history.” (People v. DeHoyos (2018) 4 Cal.5th 594, 597–598; accord, People v. Martinez (2018) 4 Cal.5th 647, 651.)

Proposition 47 provided for prospective changes to the law and for retrospective relief in the form of a petitioning process for those convicted and serving final sentences, or those who completed their sentences, prior to the measure’s passage. (§ 1170.18, subds. (a), (f); People v. DeHoyos, supra, 4 Cal.5th at pp. 597–598; People v. Martinez, supra, 4 Cal.5th at p. 651.)

2. Page decision

Approximately three years after the passage of Proposition 47 and ten months after the trial in this case, the California Supreme Court addressed the applicability of Proposition 47 to Vehicle Code section 10851, subdivision (a), which proscribes driving or taking a vehicle without the owner’s consent “with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle ….” (Veh. Code, § 10851, subd. (a).) The statute criminalizes “‘a wide range of conduct’” (People v. Garza (2005) 35 Cal.4th 866, 876), and in People v. Page (2017) 3 Cal.5th 1175 (Page), the high court concluded that “if the defendant was convicted under Vehicle Code section 10851, subdivision (a), of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession, he has, in fact, ‘suffered a theft conviction.’ [¶] By its terms, Proposition 47’s new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense. As noted, section 490.2, subdivision (a), mandates misdemeanor punishment for a defendant who ‘obtain[ed] any property by theft’ where the property is worth no more than $950. An automobile is personal property. ‘As a result, after the passage of Proposition 47, an offender who obtains a car valued at less than $950 by theft must be charged with petty theft and may not be charged as a felon under any other criminal provision.’” (Page, supra, at p. 1183.)

C. Analysis

Defendant argues his Vehicle Code section 10851 convictions (counts 1, 5 & 10) must be reversed and remanded in light of Proposition 47, People v. Gutierrez (2018) 20 Cal.App.5th 847 and Page, because the court failed to instruct the jury the People had to establish the vehicles were worth $950 or more to sustain a felony theft violation of Vehicle Code section 10851. He contends, on remand, the trial court should instruct the prosecution it can either accept reductions of these convictions to misdemeanors or seek a new trial on these counts with appropriate jury instructions. The People agree counts 1 and 10 should be remanded for potential reduction or retrial, but they argue remand is unnecessary for count 5 “because the record establishes beyond a reasonable doubt that the conviction was obtained based on a theory of post-theft driving, not theft.” We agree with the People and conclude counts 1 and 10 must be reversed and remanded but count 5 is affirmed because the record establishes beyond a reasonable doubt the jury convicted defendant on a posttheft driving theory of liability.

“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.) Unlike with other types of instructional error, prejudice is presumed with this type of error. “[T]he presumption is that the error affected the judgment: ‘“Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law …. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.”’” (In re Martinez (2017) 3 Cal.5th 1216, 1224.) “An instruction on an invalid theory may be found harmless when ‘other aspects of the verdict or the evidence leave no reasonable doubt that the jury made the findings necessary’ under a legally valid theory.” (Id. at p. 1226.)

It is undisputed defendant was charged with three felony counts of driving or taking a vehicle in violation of Vehicle Code section 10851, the jury was instructed on driving or taking pursuant to CALCRIM No. 1820, and the jury convicted defendant of unlawful driving or taking of a motor vehicle as to each of these counts. Pursuant to Page, when a violation of Vehicle Code section 10851 is “based on theft,” a defendant can be convicted of a felony only if the vehicle was worth more than $950 and the prosecution must establish the vehicle was taken with an intent to permanently deprive the owner of its possession, “a taking with intent to steal the property.” (Page, supra, 3 Cal.5th at pp. 1182; see id. at pp. 1187–1188.) The court’s instructions in this case included neither of these essential elements for a felony vehicle theft conviction, thus resulting in instructional error. (Id. at p. 1187.) Accordingly, the court’s instructions allowed the jury to convict defendant of a felony violation of Vehicle Code section 10851 for stealing the cars, even though no value was proved—a legally incorrect theory—or for a nontheft taking or driving offense—a legally correct one. Thus, instructional error occurred.

Here, the record does not reveal whether the jury convicted defendant of counts 1 and 10 based on the taking versus posttheft driving of the vehicles. (See People v. Gutierrez, supra, 20 Cal.App.5th at p. 857.) Thus, we cannot conclude the instructional error was harmless beyond a reasonable doubt as to counts 1 and 10, and these counts must be reversed and remanded for reduction to misdemeanors or retrial. (See Page, supra, 3 Cal.5th at p. 1187 [“obtaining an automobile worth $950 or less by theft constitutes petty theft under section 490.2, and is punishable only as a misdemeanor”].)

However, with regard to count 5, the prosecutor did not argue defendant stole Danielle Kent’s car. Rather, he focused his argument on defendant’s posttheft driving: “[Defendant] did not have Ms. Kent’s permission to drive her car. She has never met him before. No one had permission to drive her car. It was not like someone else gave him permission. The car was stolen. And he knew it was stolen. He admitted that to Sergeant Whitney that he knew the vehicle was stolen. And we have heard no testimony, no evidence, no anything about an attempt to return it, or, oh, I found it and I called the police. No, he found it and then he ran from the police actually.” There was also limited, if any, evidence connecting defendant to the theft of the car.

Additionally, the evidence of posttheft driving was exceedingly strong such that no reasonable jury would have convicted defendant of theft but not posttheft driving. Specifically, Officer Whitney testified he saw defendant driving Kent’s stolen car. And when he spoke to defendant minutes after defendant was apprehended, defendant denied stealing the car and stated “another person who was in the car that he knew as Money stole the car.” However, defendant admitted he knew the car was stolen and he had driven it. He also admitted he ran from the police and knew that it was law enforcement pursuing him.

“In light of this overwhelming evidence of defendant’s posttheft driving, even if every juror believed that defendant both took the car and drove it after the theft was complete, no reasonable juror could have found that he took the car but did not drive it after the theft was complete. [Citation.] Thus, the jury necessarily found that defendant drove the car in an act that was distinct from and independent of the taking of the car. This act constituted a separate offense for which defendant could be separately convicted. [Citation.] Even if there had been substantial evidence that defendant took the car, such that the ‘evidence was consistent either with driving, or with taking and driving,’ ‘no reasonable juror could have found taking alone.’” (People v. Calistro (2017) 12 Cal.App.5th 387, 403.)

Because the record conclusively demonstrates the jury rested its verdict on the legally correct nontheft theory of driving the stolen vehicle without consent in violation of Veh. Code, § 10851, reversal of defendant’s conviction on count 5 is unwarranted. (See People v. Lara (2019) 6 Cal.5th 1128, 1138 [reversal of count not required where court’s instruction supported by lawyers’ arguments focused exclusively on the nontheft variant of the Vehicle Code section 10851 offense and no evidence directly implicated the defendant in initial theft]; People v. Garza, supra, 35 Cal.4th at p. 871 [“[U]nlawful driving of a vehicle is not a form of theft when the driving occurs or continues after the theft is complete …. Therefore, a conviction under [Vehicle Code] section 10851(a) for posttheft driving is not a theft conviction”]; but see People v. Jackson (2018) 26 Cal.App.5th 371, 380–381 [presumption of prejudice not rebutted where juror may have found theft without also finding posttheft driving based on defendant’s possession of stolen vehicle under suspicious circumstances shortly after it was stolen and no one saw defendant actually drive vehicle and he was not driving it when arrested].)

Additionally, though it is not raised by the parties, as to counts 1 and 10, a defendant convicted under Vehicle Code section 10851, subdivision (a) of unlawfully taking a vehicle with the intent to permanently deprive the owner of possession has suffered a theft conviction and may not also be convicted of receiving the same vehicle as stolen property under Penal Code section 496d. (See Page, supra, 3 Cal.5th at p. 1183.) Here, though in his closing argument the prosecutor mentioned the “10851 Vehicle Code counts and … receiving stolen property, automobile counts, the Penal Code 496d, they are, alternative counts,” the jury was not instructed that if it found defendant guilty of unlawfully taking a vehicle with intent to permanently deprive the owner of possession of it under Vehicle Code section 10851 it could not also convict defendant of receiving the same vehicle under Penal Code section 496d. We are, therefore, unable to conclude from the record beyond a reasonable doubt that the jury convicted defendant of counts 1 and 10 based on a theory of posttheft driving rather than the theft itself. Because we are reversing defendant’s convictions as to counts 1 and 10, the section 496d convictions may stand. But, upon remand, should the People choose to reimpose and reduce defendant’s convictions on counts 1 and 10 to misdemeanors, defendant’s related convictions for receipt of these vehicles under section 496d, counts 2 and 11, must be stricken.

III. Prosecutor’s Statement in Closing Argument Did Not Constitute Prejudicial Griffin Error

Defendant next argues the prosecutor’s argument the jury heard no testimony to the effect that defendant “found the car, and attempted to return it to the police” amounted to Griffin error, an impermissible comment on defendant’s failure to testify, mandating reversal of his convictions.

A. Relevant Procedural History

During his closing argument, the prosecutor argued:

“On October 26th, the Danielle Kent vehicle, the defendant is charged with two crimes. The first one we have seen before, it is unlawful taking or driving of a motor vehicle. And I am not going to spend a lot of time on it. He did not have Ms. Kent’s permission to drive her car. She has never met him before. No one had permission to drive her car. It was not like someone else gave him permission. The car was stolen. And he knew it was stolen. He admitted that to Sergeant Whitney that he knew the vehicle was stolen. And we have heard no testimony, no evidence, no anything about an attempt to return it, or, oh, I found it and I called the police. No, he found it and then he ran from the police actually.”

B. Standard of Review and Applicable Law

“Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. [Citations.] … [I]t is error for the prosecution to refer to the absence of evidence that only the defendant’s testimony could provide. [Citation.] But although ‘“Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand,”’ the prohibition ‘“does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or call logical witnesses.”’ [Citation.]” People v. Hughes (2002) 27 Cal.4th 287, 371–372; see People v. Bradford (1997) 15 Cal.4th 1229.)

In People v. Bradford, supra, 15 Cal.4th 1229, the Supreme Court concluded the prosecutor did not commit misconduct during closing argument by making “brief comments” noting the absence of evidence contradicting the prosecution’s evidence and the defense’s failure to present material evidence or alibi witnesses. (Id. at p. 1339.) It rejected the defendant’s argument the prosecutor’s comments “impermissibly shift[ed] the burden of proof to defendant.” (Id. at p. 1340.) Rather, it held “[a] distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.” (Ibid.)

C. Analysis

Defendant argues the “I” referred to in the prosecutor’s argument there was “no testimony, no evidence, no anything about an attempt to return [Kent’s car], or, oh, I found it and I called the police” (italics added), could only have referred to defendant. Thus, he asserts, this was a direct comment on defendant’s failure to testify amounting to Griffin error. Defendant notes his counsel did not object to the challenged comment but he argues “an objection is not required where a retraction by the prosecutor or admonition by the court would not have cured the harm.” He also contends an admonition could not have “unrung” the bell that defendant had failed to testify. He further justifies the failure to object by asserting an objection “can serve to magnify, rather than reduce, the harm of prosecution [sic] misconduct.” Finally, he argues the doctrine of forfeiture as it relates to Griffin error “is on shaky ground.” He asserts even if the issue was technically forfeited, our court should apply a “plain error rule exception” as federal courts do to “‘temper the blow of a rigid application of the contemporaneous objection rule.’” And he contends the People cannot establish beyond a reasonable doubt that he was not prejudiced by the error because the evidence in this case was not overwhelming.

The People respond defendant’s failure to object at trial on the basis of Griffin error forfeited this claim on appeal. They contend defendant’s justifications for failing to object, including that such an objection would have been futile, are meritless because the court could have admonished the jury if an objection had been lodged. Additionally, they assert “plain error review” or “plain error rule exception” does not apply here given that the California Supreme Court has rejected its adoption in capital cases. Irrespective, they contend the prosecutor’s comment did not amount to Griffin error because it related to defendant’s statement to the arresting officers and was a permissible comment on the state of the evidence. They also assert this is not a case where the prosecutor stated certain evidence was uncontradicted or unrefuted where only defendant could contradict or refute it by testifying on his own behalf. They contend even if error occurred, it was harmless beyond a reasonable doubt because the evidence of defendant’s guilt on count 5 was strong; he admitted to driving the car knowing it was stolen. Additionally, the evidence on the remaining counts was also strong such that the alleged Griffin error did not fill any “evidentiary gap.” Finally, they contend the jury is presumed to have followed the trial court’s admonition that a defendant has an absolute constitutional right not to testify and to not consider for any reason at all that he did not testify.

As the People argue, generally, a criminal defendant forfeits an appellate claim of Griffin error by failing to object at trial. (See People v. Valdez (2004) 32 Cal.4th 73, 127; People v. Brown (2003) 31 Cal.4th 518, 554; People v. Hughes, supra, 27 Cal.4th at p. 372, 373.) However, even assuming, arguendo, the error had been adequately preserved or the failure to object justified, we find no Griffin error. (People v. Valdez, supra, at p. 127.)

Here, minutes after he was pursued and arrested in connection with Kent’s stolen vehicle, defendant admitted to Officer Whitney that he knew the car was stolen. He also admitted he had driven the car. There was no evidence introduced, through Officer Whitney or otherwise, that defendant reported the stolen vehicle to the police or attempted to return it. And the prosecutor’s argument was a fair comment on the state of the evidence. (See People v. Brown, supra, 31 Cal.4th at p. 554 [prosecutor directing jury’s attention to fact defendant never presented evidence he was somewhere else when crime was committed was not Griffin error but fair comment on evidence]; People v. Hughes, supra, 27 Cal.4th at pp. 373–375 [prosecutor’s comments the evidence was uncontradicted, rhetorical questions to jury asking why someone would bring a knife if not intending to use it, and where questioning the evidence to support the defense did not amount to Griffin error but were fair comments on evidence]; People v. Medina (1995) 11 Cal.4th 694, 755–756 [prosecutor’s comments that defense failed to provide rational explanation for why defendant was armed was a permissible remark on the evidence, not on defendant’s silence].) The prosecutor did not mention the lack of a “denial” by defendant or otherwise refer to a lack of refutation by defendant himself. (See People v. Bradford, supra, 15 Cal.4th at p. 1339 [prosecutor did not allude to lack of refutation or denial by defendant but rather to lack of evidence which might have been presented as physical evidence or testimony (other than that of defendant) to contradict what was produced by prosecution on several points]; cf. People v. Vargas (1973) 9 Cal.3d 470, 476 [prosecutor’s comment on lack of “denial” regarding defendant’s whereabouts amounted to Griffin error because “only defendant himself could ‘deny’ his presence at the crime scene” so jury could have interpreted remarks as comment on defendant’s failure to take stand and deny his guilt].) Accordingly, the prosecutor’s comment in closing was not a “reference to the fact that defendant did not take the stand; nor is the remark susceptible of such interpretation by inference or innuendo.” (People v. Bethea (1971) 18 Cal.App.3d 930, 936.) Thus, it did not amount to an improper comment on defendant’s failure to testify.

Additionally, the prosecutor did not argue defendant had a burden to produce any evidence or to prove his innocence. Rather, he repeatedly stated the prosecution bore the burden of establishing defendant’s guilt beyond a reasonable doubt, noting “none of this is the defendant’s burden.” Defense counsel also reiterated the prosecutor “has the entire burden in this case. He acknowledges it, he accepts it.” Accordingly, the prosecutor’s brief comment regarding the lack of material evidence did not impermissibly shift the burden of proof to defendant. (See People v. Bradford, supra, 15 Cal.4th at p. 1340 [“A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence”]; see also People v. Ratliff (1986) 41 Cal.3d 675, 691.)

We reject defendant’s third contention.

IV. The Court Did Not Abuse Its Discretion by Excluding Alleged Third Party Culpability Evidence

Defendant next contends the trial court abused its discretion and violated his constitutional rights to due process and to present a defense by excluding third party culpability evidence that the phone used to call Payan to set up the appointment to see Serna’s car was owned by another individual who resembled the physical description of the person who stole the car.

A. Relevant Procedural History

During trial, defense counsel explained Officer Brian Chadwick investigated the phone number from which Payan reported he received a phone call to set up the meeting to see the Caprice. The phone number was traced back to two people, Jonathan Boyd and Deondre or Leondre Stamps. According to defense counsel, “because Jonathan Boyd … tended to match the description given by Mr. Payan,” Detective Havens included him in the photographic lineup. Payan did not identify Boyd in the lineup. Defense counsel argued he intended to introduce evidence of the telephone number and the subsequent investigation linking it to Jonathan Boyd and Deondre or Leondre Stamps.

The People objected to that line of questioning. They argued Officer Chadwick received information regarding the source of the phone number from Fresno Police Department dispatch. Officer Havens did not conduct an independent check on the phone number but instead relied on Officer Chadwick’s report regarding the identification of Stamps and Boyd. They asserted Officer Chadwick’s communications with dispatch and any reports of association given by dispatch to him regarding the source of the number would be hearsay. Additionally, the People objected on Evidence Code section 352 grounds, arguing “there is no evidence before the jury that Jonathan Boyd or Leondre Stamps were involved in these crimes. And in fact the evidence appears to be that, if anything, these were maybe identities of [Goldie Walker], not as an alternative identity for [defendant].” Accordingly, such evidence did not prove or disprove any charge in the case pertaining to defendant and it could be confusing to the jury and more prejudicial than probative.

The court held such evidence inadmissible, noting it involved hearsay statements that may not be admissible under an exception, “[b]ut more problematic … is [Evidence Code section] 352.” The court questioned the probative value of such evidence, noting “it really doesn’t matter who owns the phone” or “whose name it may be under …. What matters is who had possession of the phone, who used the phone at a particular date and time at issue in this case.” Accordingly, the court concluded the evidence of “who was associated with the phone” was not probative of the issue before the court and was ultimately to be decided by the jurors. It sustained the People’s hearsay and Evidence Code section 352 objections and held the admission of such evidence would lead to an undue consumption of time, could result in juror confusion because it would bring in names unassociated with any conduct in the case, and such evidence was irrelevant.

B. Standard of Review and Applicable Law

1. Admissibility of evidence of third party culpability

All relevant evidence is admissible except as otherwise provided by a statutory or constitutional exclusionary rule. (See Cal. Const., art. I, § 28, subd. (f)(2); Evid. Code, § 351.) Relevant evidence is defined as evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The general test of relevance “‘is whether the evidence tends “logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive.’” (People v. Bivert (2011) 52 Cal.4th 96, 116.)

A court may exclude evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) “Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.) “Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (Id. at pp. 1124–1125; see People v. Olguin (1994) 31 Cal.App.4th 1355, 1369–1370.) An appellant has the burden to establish an abuse of discretion and prejudice. (People v. Jordan (1986) 42 Cal.3d 308, 316.) “[S]tate law error in admitting evidence is subject to the traditional Watson [People v. Watson (1956) 46 Cal.2d 818] test: The reviewing court must ask whether it is reasonably probable the verdict would have been more favorable to the defendant absent the error.” (People v. Partida (2005) 37 Cal.4th 428, 439.) Federal due process is offended only if admission of the irrelevant evidence renders the trial fundamentally unfair. (Ibid.)

In People v. Hall (1986) 41 Cal.3d 826, the California Supreme Court held that to be admissible, evidence of third party culpability must be capable of raising a reasonable doubt of the defendant’s guilt. (Id. at p. 833; see People v. Davis (1995) 10 Cal.4th 463, 501.) “[E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt; there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (People v. Hall, supra, at p. 833.)

A trial court’s ruling excluding third party culpability evidence is reviewed for an abuse of discretion. (People v. Elliott (2012) 53 Cal.4th 535, 581.)

2. Defendant’s constitutional right to present a defense

While a defendant has a right to present a complete defense at trial, state evidentiary rules do not ordinarily infringe upon this right. (See People v. Hall, supra, 41 Cal.3d at p. 834 [“As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s (constitutional) right to present a defense. Courts retain … a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice”].) Indeed, the United States Supreme Court has noted:

“‘[T]he Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense,”’ [citation], but we have also recognized that ‘“state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials,”’ [citation]. Only rarely have we held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence.” (Nevada v. Jackson (2013) 569 U.S. 505, 508.)

And “rules regulating the admission of evidence proffered by criminal defendants to show that someone else committed the crime with which they are charged,” “are widely accepted” as not violating a defendant’s constitutional right to present a defense. (Holmes v. South Carolina (2006) 547 U.S. 319, 327.)

“It follows, for the most part, that the mere erroneous exercise of discretion under such ‘normal’ rules does not implicate the federal Constitution. [Our Supreme Court has] consistently assumed that when a trial court misapplies Evidence Code section 352 to exclude defense evidence, including third-party-culpability evidence, the applicable standard of prejudice is that for state law error, as set forth in People v. Watson[, supra,] 46 Cal.2d 818, 836 …. [Citations.]” (People v. Cudjo (1993) 6 Cal.4th 585, 611.)

C. Analysis

Defendant contends the “trial court abused its discretion in excluding third-party culpability evidence that the phone number used to set up the appointment to test drive Payan’s vehicle was that of Jonathan Boyd, who physically resembled the description of the person who drove off with the vehicle.” He argues such evidence “tended to raise doubt” regarding his culpability because it was reasonable to infer the person who arranged the appointment stole the vehicle. Relatedly, defendant argues the “trial court failed to hold a sufficient hearing on the admissibility of this evidence” or “properly weigh the probative value of this evidence,” and “improperly found that the evidence was barred by hearsay rules.” He also contends the evidence should not have been excluded as hearsay because it “could have come in under Evidence Code section 1340 as a compilation of data” or “under the business record exception to the hearsay rule.” He contends the error was prejudicial because it related to the key disputed issue as to counts 1 and 2—the identity of the perpetrator. The People argue the trial court properly excluded the evidence based on hearsay concerns and under Evidence Code section 352. They further contend defendant did not argue a hearsay exception applied to such evidence below and thus, forfeited the argument an exception applies on appeal. We agree with the People.

The trial court did not abuse its discretion in excluding such evidence and concluding its potential for prejudice outweighed its probative value under Evidence Code section 352. As the court noted, evidence of who owned the phone used to set up the meeting with Payan was not highly probative of the issue before the court and would be ultimately decided by the jurors: the identity of the person who actually had possession of the phone, met with Payan, and took the car. According to defense counsel, the alleged report reflected the owner of the phone could have been Boyd or Stamps, and Payan did not identify an image of Boyd—who defendant argued resembled the description of the perpetrator—as an individual involved in the offense. Thus, the relevance of such evidence was in question and it had the potential to confuse the jury and consume time unnecessarily. The court’s exercise of discretion under Evidence Code section 352 excluding such alleged third party culpability evidence did not violate the Constitution by infringing on defendant’s ability to present a defense (See People v. Hall, supra, 41 Cal.3d at p. 834.)

In any event, any error in excluding the evidence was harmless because it is not reasonably probable defendant would have obtained a more favorable result had the evidence been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836.) Payan repeatedly identified with certainty defendant as the perpetrator. The fact the alleged owner of the phone may have resembled Payan’s description of the perpetrator did not, standing alone, render it reasonably probable the jury would have rejected Payan’s eyewitness identification and the other evidence linking defendant to the stolen vehicle.

Accordingly, we reject defendant’s fourth contention.

V. Prosecutor’s Comment on the Reasonable Doubt Standard in Closing Argument Was Harmless

In his final contention, defendant argues the prosecutor engaged in prejudicial misconduct in violation of his due process rights by illustrating “proof beyond a reasonable doubt” with the example of an ordinary person deciding to make a turn while driving (e.g., “if you [the driver] had a reasonable doubt about the safety of making that turn, you would not make the turn”). He further contends, if this issue was waived for failure to object, his counsel was ineffective.

A. Relevant Procedural History

The court instructed the jury the People must prove defendant guilty beyond a reasonable doubt. It explained, “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.”

During his closing argument, the prosecutor attempted to explain the reasonable doubt standard, arguing:

“[I]t is my burden, the People of the State of California have an obligation, as the judge told you, to prove every crime beyond a reasonable doubt. And that is the highest standard under the law. It is important that is a high burden. This is a serious burden that we’re doing.… [¶] … [¶]

“The burden is on the People. And we call it proof beyond a reasonable doubt. So the judge read you an instruction, it was actually the last instruction he read to you, it was instruction 220, and he described proof beyond a reasonable doubt as an abiding conviction that the charges are true. And that is not the clearest statement in the world, is it? An abiding conviction that the charges are true is old language. It dates actually back, I think, from the 19th century. And I submit to you that an abiding conviction means essentially a strong belief. It means that this is something, not just a casual belief that you have that these charges are true, but you believe it, you’re convinced. The ruling—or the law does give you some guidance. It tells you that proof beyond a reasonable doubt is not absolute certainty. That it’s not imaginary doubt or possible doubt. That everything in life is open to some imaginary or possible doubt. If you say it is possible that something else happened, that is the kind of okay doubt to have. And in fact, if any of you knew beyond any doubt that these events occurred, you wouldn’t be jurors, you would be witnesses. It is okay to have doubts. The question is if those doubts are reasonable. And one way to think about that is whether or not there is a reasonable explanation of the facts as you heard them that lead to innocence. If the only reasonable conclusion is that the defendant committed these crimes, I’d submit to you that he is guilty beyond a reasonable doubt.

“I have an example I like to use when I think about reasonable doubt. So I believe we use this standard actually in our ordinary lives. And I’m going to think about driving, just a trip from Fig Garden to here. Got Hungry Bear Cookies in Fig Garden. Some part of those decisions are not decisions we make beyond a reasonable doubt. When you decide to drive from Fig Garden to here, you make a decision about what road to take. Do you drive straight down Palm to downtown? Do you go over to 41 and take 41 down to downtown? I guess you can go down Shaw to 99 and take 99 to downtown. You are going to decide, based on traffic and how long you think it is going to take and if you have other stops, you are going to decide which route is best for you. That is a decision you are not making beyond a reasonable doubt. If one route is a little better than another, you will choose that route. That is a preponderance of the evidence standard, the kind of standard we do not use in criminal trials.

“And if at the conclusion of this case you just think it is a little more likely than not the defendant did it, do not convict. If it is just a little more likely than not, acquit. That is your job. But that is not our standard here. Our standard here is proof beyond a reasonable doubt. And we make those decisions when we drive also. So the reason I choose Fig Garden is because to get out of Fig Garden on Palm, you have to make an unprotected left turn, or at least one of the exits you do. And when we make a left turn or a right turn or we change lanes, we make a decision. And that is a decision I would submit to you we do make beyond a reasonable doubt. We want to have no reasonable doubts about our safety. We look both ways, that is evaluating the evidence, we make sure that a car is not coming, and then if we think we’re not going to get hit, we make the turn. And if you had a reasonable doubt about your safety, you wouldn’t make that turn.

“So, yes, beyond a reasonable doubt is the highest standard under the law. And it is a high standard. It’s the standard we use to make important decisions, important decisions like whether or not we are going to be in a car accident. But it is not a decision that is foreign or alien to us. It is the kind of rubric, the mechanism we use to make decisions about things in our lives that have consequences. Just like this is a case with consequences. It had consequences for the victims. So that is how I would encourage you to think about beyond a reasonable doubt.”

Defense counsel did not object to these comments. He also noted during his closing, “[W]e don’t describe reasonable doubt or define it, because that’s defined in the instruction which you’ve been given.” And, in rebuttal, the prosecutor reminded the jury “the law is the law as the judge has given it to you.”

B. Standard of Review and Applicable Law

“A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44; see People v. Mendoza (2007) 42 Cal.4th 686, 700; People v. Farnam (2002) 28 Cal.4th 107, 167.) “The focus of the inquiry is on the effect of the prosecutor’s action on the defendant, not on the intent or bad faith of the prosecutor.” (People v. Mendoza, supra, at p. 700.)

It is improper for the prosecutor to misstate the law generally, and particularly to misstate the prosecution’s burden of proving every element of the crime charged beyond a reasonable doubt. (See People v. Hill (1998) 17 Cal.4th 800, 820.) “‘“[I]t is difficult, if not impossible, to give a precise and intelligible definition of what a reasonable doubt is, without extending an instruction into almost a treatise upon the subject ….”’” (People v. Johnson (2004) 119 Cal.App.4th 976, 986.) As a result, courts should stick to the pattern jury instructions on the topic. (See ibid.) However, while “‘“attempts at definition are likely to prove confusing and dangerous”’” (ibid.), not every comment on reasonable doubt constitutes reversible error. And “‘[a] defendant’s conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.’” (People v. Tully (2012) 54 Cal.4th 952, 1010.)

C. Analysis

Defendant contends the prosecutor’s use of an ordinary person’s decision to turn while driving as an example of proof beyond a reasonable doubt improperly trivialized the state’s burden of proof. He contends even if such misconduct did not amount to structural error, it violated his federal constitutional right to a jury determination based upon proof beyond a reasonable doubt and, accordingly, “[t]he error went to the heart of the defense.” Citing People v. Centeno (2014) 60 Cal.4th 659, defendant also contends there was no correction of the error in this case so there was no reason for the jury to reject the prosecutor’s hypothetical. The People respond, because defendant did not object to such argument at trial, his claim is forfeited. Additionally, they further argue “[e]ven if the claim had not been forfeited, the prosecutor’s remarks—though improper—were harmless.” We agree with the People.

“‘As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.’” (People v. Hill, supra, 17 Cal.4th at p. 820.) An exception is made if a timely objection or request for admonition would have been futile, or if an admonition would not have cured the harm caused by the misconduct. (Ibid.) “The reason for this rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury.’” (People v. Green (1980) 27 Cal.3d 1, 27, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 239.)

Defendant did not object to the prosecutor’s comments he now challenges on appeal, nor can we conclude an objection would have been futile because it would have permitted the court to instruct the jury to disregard any alleged improper comments and rely on the court’s definition of reasonable doubt. Thus, his prosecutorial misconduct claim was not preserved for appeal. (People v. Dalton (2019) 7 Cal.5th 166, 259; see People v. Samayoa (1997) 15 Cal.4th 795, 841–842.)

Alternatively, defendant contends his trial counsel rendered ineffective assistance of counsel for failing to object to the prosecutor’s challenged comments below. To prove ineffective assistance of counsel, a defendant must satisfy a two-part test requiring a showing of counsel’s deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 687.) As to deficient performance, a defendant “must show that counsel’s representation fell below an objective standard of reasonableness” measured against “prevailing professional norms.” (Id. at p. 688.) The prejudice prong requires a defendant to establish “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Id. at p. 694.) “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Ibid.) Prejudice must be affirmatively proved. (People v. Maury (2003) 30 Cal.4th 342, 389.) Where a defendant fails to show prejudice, a reviewing court may reject a claim of ineffective assistance of counsel without reaching the issue of deficient performance. (See Strickland, supra, at p. 697.)

Defendant argues our Supreme Court’s opinion in People v. Centeno, supra, 60 Cal.4th 659 supports the conclusion the alleged error was not harmless. In Centeno, the defendant was charged with molesting a child and the prosecutor used a visual display of the State of California to illustrate the applicable standard of proof. (Id. at pp. 665–666.) The prosecutor argued:

“‘Let me give you a hypothetical. Suppose for me that there is a trial, and in a criminal trial, the issue is what state is this that is on the [overhead projector]. Say you have one witness that comes in and this witness says, hey, I have been to that state, and right next to this state there is a great place where you can go gamble, and have fun, and lose your money. The second witness comes in and says, I have been to this state as well, and there is this great town, it is kind of like on the water, it has got cable cars, a beautiful bridge, and it is called Fran-something, but it is a great little town. You have another witness that comes in and says, I have been to that state, I went to Los Angeles, I went to Hollywood, I saw the Hollywood sign, I saw the Walk of Fame, I put my hands in Clark Gable’s handprints in the cement. You have a fourth witness who comes in and says, I have been to that state.

“‘What you have is you have incomplete information, accurate information, wrong information, San Diego in the north of the state, and missing information, San Bernardino has not even been talked about, but is there a reasonable doubt that this is California? No. You can have missing evidence, you can have questions, you can have inaccurate information and still reach a decision beyond a reasonable doubt. What you are looking at when you are looking at reasonable doubt is you are looking at a world of possibilities. There is the impossible, which you must reject, the impossible [sic] but unreasonable, which you must also reject, and the reasonable possibilities, and your decision has to be in the middle. It has to be based on reason. It has to be a reasonable account. And make no mistake about it, we talked about this in jury selection, you need to look at the entire picture, not one piece of evidence, not one witness. You don’t want to look at the tree and ignore the forest. You look at the entire picture to determine if the case has been proven beyond a reasonable doubt.’” (Centeno, supra, 60 Cal.4th at pp. 665–666, fn. omitted.)

In reviewing the argument for error, the Centeno court explained the “case law is replete with innovative but ill-fated attempts to explain the reasonable doubt standard. [Citations.] We have recognized the ‘difficulty and peril inherent in such a task,’ and have discouraged such ‘“experiments”’ by courts and prosecutors. [Citation.] We have stopped short, however, of categorically disapproving the use of reasonable doubt analogies or diagrams in argument. Rather, we assess each claim of error on a case-by-case basis.” (Centeno, supra, 60 Cal.4th at p. 667.) The Centeno court further noted, “When attacking the prosecutor’s remarks to the jury, the defendant must show that, ‘[i]n the context of the whole argument and the instructions’ [citation], there was ‘a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements.’” (Ibid.)

The Centeno court concluded it was “reasonably likely that the prosecutor’s hypothetical and accompanying argument misled the jury about the applicable standard of proof and how the jury should approach its task.” (Centeno, supra, 60 Cal.4th at p. 674.) It stressed the closeness of the case—noting in particular the victim had made inconsistent statements, recanted, and refused to answer questions, and her father also recanted what he had witnessed. (Id. at p. 676.) It also noted “[t]he prosecutor introduced further confusion by suggesting that it was ‘reasonable’ to believe that defendant was guilty,” “confound[ing] the concept of rejecting unreasonable inference with the standard of proof beyond a reasonable doubt,” and that “the prosecutor’s argument was the last word on the subject [of reasonable doubt].” (Id. at pp. 676, 673, 677.) The court determined that the reasonable doubt argument and other improper arguments prejudiced the defendant and required reversal of the judgment. (Id. at p. 677.)

In its analysis, Centeno discussed and contrasted People v. Katzenberger (2009) 178 Cal.App.4th 1260, upon which defendant also relies here in arguing error occurred. In Katzenberger, the Court of Appeal disapproved of the prosecutor’s use of a slide show to display pieces of a puzzle to illustrate the reasonable doubt standard. (Id. at p. 1264.) “The picture is immediately and easily recognizable as the Statue of Liberty. The slide show finishes when the sixth puzzle piece is in place, leaving two rectangular pieces missing from the picture of the Statue of Liberty—one in the center of the image that includes a portion of the statue’s face and one in the upper left-hand corner of the image.” (Ibid.) Over defense objection, the prosecutor argued, ‘“[w]e know [what] this picture is beyond a reasonable doubt without looking at all the pieces of that picture. We know that that’s a picture of the Statue of Liberty, we don’t need all the pieces of the [sic] it.’” (Id. at p. 1265.) The Katzenberger court concluded the presentation misrepresented the standard of proof. (Id. at p. 1266.) It reasoned the presentation invited the jurors to guess or jump to a conclusion without considering all of the evidence, an approach “completely at odds with the jury’s serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt.” (Id. at p. 1267.)

Unlike in Centeno, the Katzenberger court found the error harmless, noting such alleged prosecutorial misconduct did not amount to structural error (as defendant argues here) and is reviewed for prejudice. (People v. Katzenberger, supra, 178 Cal.App.4th at pp. 1268–1269.) In so holding, the court relied in part upon the relative strength of the evidence and commented the “‘[a]rguments of counsel “generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law.” [Citation.]’ [Citation.]” (Id. at p. 1268.) “‘When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for “[w]e presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.” [Citation.]’ [Citation.]” (Ibid.)

Here, even if we were to assume the prosecutor’s comment constituted misconduct and defense counsel erred in failing to object, we conclude any alleged error was harmless. (See People v. Nguyen (1995) 40 Cal.App.4th 28, 36–37 [prosecutor’s argument suggesting reasonable doubt standard is used in daily life when considering whether to change lanes trivialized standard but was harmless where prosecutor directed jury to instruction on reasonable doubt and jury was properly instructed].) The parties do not dispute the jury was correctly instructed on the reasonable doubt standard. It was also instructed, “If you believe that the attorneys’ comments on the law conflict with [the jury] instructions, you must follow [the jury] instructions.” We presume the jury followed the jury instructions. (People v. Dalton, supra, 7 Cal.5th at pp. 260–261 [any alleged prosecutorial misconduct was not prejudicial where jury was properly instructed on reasonable doubt standard; “We presume that jurors treat the court’s instructions as a statement of the law by a judge, and the prosecutor’s comments as words spoken by an advocate in an attempt to persuade”].) And both defense counsel and the prosecutor in rebuttal directed the jury to follow the law as it was given to them by the judge and discussed the reasonable doubt standard further. Thus, the prosecutor’s example was not the last word the jury heard on the subject of reasonable doubt.

Additionally, unlike in Centeno and contrary to defendant’s argument, the evidence implicating defendant here was strong. As to each count, eyewitnesses provided testimony linking defendant to the alleged crimes, and defendant in fact admitted to his involvement in some of the incidents leading to his convictions. We disagree with defendant’s assertion that “the victim gave strongly contradictory accounts of what happened to him” as to counts 1 and 2. Rather, Jose Payan consistently identified defendant as the individual he met with who took his car under the false impression of taking a “test drive.”

In light of the correct instructions on reasonable doubt, admonitions by counsel and the trial court to follow the jury instructions, and the strength of the evidence, we cannot conclude defendant has established he was prejudiced. And, for the same reasons, we cannot conclude the alleged error infected the trial with such unfairness as to make the resulting conviction a denial of due process. (See People v. Morales, supra, 25 Cal.4th at p. 44; see also People v. Mendoza, supra, 42 Cal.4th at p. 700; People v. Farnam, supra, 28 Cal.4th at p. 167.)

We reject defendant’s final contention.

VI. Correction of Abstract of Judgment

The abstract of judgment in this matter lists eight prison prior enhancements pursuant to section 667.5, subdivision (b) as “stayed.” However, though the court found true eight prison prior allegations, it struck these enhancements on the record. Accordingly, the abstract of judgment should be amended to remove these enhancements, rather than listing them as “stayed.” Though the parties do not discuss this clerical error, it is within our power to correct it. (People v. Jones (2012) 54 Cal.4th 1, 89.)

DISPOSITION

Defendant’s convictions as to counts 1, 10, and 12 are reversed and remanded to the trial court for further proceedings and resentencing. On remand, the People may reduce defendant’s convictions on counts 1 and 10 to misdemeanors or retry these allegations. If defendant’s convictions on counts 1 and 10 are reduced and reimposed, the trial court is instructed to strike defendant’s convictions for counts 2 and 11. The trial court shall prepare an amended abstract of judgment reflecting the prison prior enhancements were stricken and forward a copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

PEÑA, J.

WE CONCUR:

LEVY, Acting P.J.

MEEHAN, J.

Filed 12/23/19 P. v. Tucker 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

THE PEOPLE,

Plaintiff and Respondent,

v.

D’EDWARD TUCKER,

Defendant and Appellant.

F074608

(Super. Ct. No. F15904258)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. James Petrucelli, Judge.

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Defendant D’Edward Tucker was charged with two felonies after one or more of the passengers in the vehicle Tucker was driving fired a gun at a person outside the vehicle whose jaw was struck by a bullet. Tucker was convicted by jury for permitting the discharge of a firearm from his vehicle (Pen. Code, § 26100, subd. (b)) (count 6). Tucker was found not guilty for assault with a firearm pursuant to an aiding and abetting theory (§ 245, subd. (a)(2)) (count 5), but he was found guilty on the lesser offense of acting as an accessory to a felony (§ 32). The jury also found true the gang enhancement allegation attached to count 6 that Tucker’s crime was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)). Codefendant and minor Eric Major was convicted of assault with a firearm (§ 245, subd. (a)(2)) (count 2), and the jury found true that the offense was committed for the benefit of, at the direction of, or in association with a criminal street gang (§ 186.22, subd. (b)(1)) and found true that Major was 14 years old when the offense was committed (Welf. & Inst. Code, § 707, subd. (b)).

The trial court sentenced Tucker to the aggravated term of three years on count 6 (§ 26100, subd. (b)) and imposed an additional, consecutive three years for the gang enhancement pursuant to section 186.22, subdivision (b)(1). As to Tucker’s conviction on count 5 for acting as an accessory to a felony, the court imposed the middle term of two years, to be served concurrent with the sentence on count 6. Major was sentenced to an aggregate term of nine years: four years for assault with a firearm (§ 245, subd. (a)(2) (count 2), and a five-year term for the gang enhancement under section 186.22, subdivision (b)(1).

On appeal, Tucker claims his conviction for permitting the discharge of a firearm from his vehicle (count 6) is not supported by substantial evidence and requires reversal; Tucker also joins any applicable argument advanced by Major. On October 16, 2019, after briefing was complete, Major filed a notice of abandonment of his appeal and requested dismissal. Tucker’s and Major’s appeals were bifurcated, Major’s appeal was separated into case No. F080145, and Major’s request for dismissal of case No. F080145 was granted.

The People maintain Tucker’s conviction on count 6 is supported by substantial evidence and should be affirmed. As to Tucker’s statement of joinder in Major’s appellate arguments, the People maintain this blanket joinder is cursory, not particularized to Tucker, and should be deemed forfeited.

We conclude that there is substantial evidence to support Tucker’s conviction on count 6, and the arguments in which Tucker joins are deemed forfeited. The judgment is affirmed.

FACTUAL SUMMARY

On July 7, 2015, at approximately 11:30 p.m., Fresno police officers were dispatched to the northwest corner of Amador and Plumas Streets in Fresno, where a pedestrian reportedly had been shot by someone in a vehicle. Approximately 12 minutes after being dispatched to the scene, an officer located the suspect vehicle pulling into the parking lot of a nearby apartment complex. Following the vehicle into the parking lot, the officer observed the vehicle parking underneath a carport and then saw four men, later identified as Tucker, Major, Jaishawn Young, and Dejour Clay, exiting the vehicle. Tucker exited from the driver’s seat, and Clay exited from the rear passenger seat directly behind Tucker; Young exited from the front passenger seat, and Major exited from the rear passenger seat behind Young. The four men were detained by the officer, questioned, and ultimately arrested.

Three guns were located in the vehicle: (1) a brown .22-caliber semiautomatic rifle was found in the rear, pouch pocket behind the driver’s seat (a pocket directly in front of the rear, driver’s side passenger); (2) a silver .25-caliber semiautomatic Raven Arms pistol was under the carpet of the footwell on the rear passenger’s side, directly behind the front passenger seat; and (3) a black handgun in the right, front passenger footwell, partially under the front passenger seat. A .25-caliber Raven Arms bullet casing was found at the intersection where the shooting occurred. Gunshot residue (GSR) was found on Tucker, Major, and Clay.

The victim, John Doe, testified he was walking with his cousin, his 8-year-old brother, and another friend to pick peaches from a tree located one apartment complex down the street from where they lived. While the group was walking, a whitish-colored car with four doors and tinted rear windows pulled up and the front passenger leaned out of his window and asked John where he was from. John understood the question to be whether he was in a gang. John responded to the effect that he was not in a gang, and he then tried to walk away, but the front passenger pointed a gun at him and another person stood up in the sunroof and pointed a gun at John too. John immediately froze in place, but when they did not shoot, he again started to walk away. He then heard gunshots and started to run. He could not see specifically who was shooting at him, but he thought he heard three gunshots; on cross-examination, however, he was uncertain how many shots he heard. In the process of fleeing, John discovered he was bleeding around his neck and chin. He ran home, was transported to the hospital, and ultimately recovered from a gunshot wound that had fractured his jaw.

After being taken into custody, Major was interviewed by police later that night. According to Major, he had called Tucker for a ride home around 9:30 to 10:00 that evening; when Tucker picked up Major, Tucker was driving, Young was sitting in the front passenger seat, and Clay was sitting in the backseat, behind Tucker. Major dropped his phone to the floor and when he reached down to grab it, he saw a gun, which he immediately threw back under the seat. Major said they drove to Clay’s house to get gas money, and they stopped to ask three different people where they could find some marijuana. Major said when they stopped at another location, a pedestrian walked up to the car, someone in the car fired a gun in the air, and the pedestrian and the group the pedestrian was with started running away from the car. He denied he fired a gun.

Later in the interview, Major changed his story and said that when John approached the car, he was talking about the Fink White gang; Major recognized him as a person he had an argument with at a bus station about three weeks before. According to Major, he thought John was a member of the Muhammad gang, and he had brandished a gun at Major at the bus stop. When Major recognized John outside the car, he fired three shots in the air—he never stood up in the sunroof. He said the gun under the seat in front of him was one that he had stolen three days before. Major indicated the other three in the car with him knew people had threatened Major and were after him.

At trial, the prosecution pursued a theory Tucker, Young, Major and Clay were members of gangs within the MUG gang alliance (Modoc, U-Boys, and Garrett Street), Major shot at John believing he was a gang rival and intended to kill him, and Tucker facilitated the shooting as the driver of the car. Detective Zebulon Price testified as a gang expert for the prosecution and identified Tucker, Major, Clay, and Young as members of three gangs within the MUG alliance and indicated MUG alliance gang members are frequently found together. He opined Tucker was a member of Garrett Street, Clay and Young were members of Modoc, and Major was a member of U-Boys; when the shooting occurred, they were within Modoc gang territory. Price testified MUG alliance gangs are rivals of the TWAMP alliance, and the Muhammad gang was one within the TWAMP alliance. Price indicated MUG alliance gangs were associated with drive-by shootings and violence against rival gang members; he opined that shooting a rival would elevate a gang member’s status within his gang and observed that shooting a rival inside a gang’s own territory was not uncommon.

Major testified at trial and recanted his police-interview confession, asserting he had been covering for Clay. When they saw the police car pulling in behind them at the apartment building that night, Clay told Major that Major would get less time for the shooting because Major was younger, so Major agreed to take the blame for the shooting. Major testified it was true that he had called Tucker for a ride home that night, and they had driven around looking for marijuana, but it was Clay who was seated in the rear passenger side when Major got in the vehicle (where the silver .25-caliber semiautomatic handgun was recovered), and Major was seated behind Tucker, who was driving. Major had no idea there was a gun in the back pocket of the driver’s seat directly in front of him, and he denied he had ever seen the silver handgun in the footwell where Clay was sitting until Clay grabbed it to go out the sunroof—Major did not know why he told the police he had stolen that silver handgun.

Major thought Tucker might have stopped the car because Clay recognized John, but he did not hear anyone discussing anything about John and he did not know why Clay fired his gun at John. When the car stopped, he saw Clay stand up through the sunroof while holding the silver handgun. He heard someone ask, “where are you from?” but denied he knew to whom that question was directed. He then heard a gun being fired, but he could not remember how many shots he heard. He denied he saw anything from the car’s back windows because they were tinted, it was dark, and he had his head down; he never saw John outside the car that night. He denied having ever seen John before and denied they had been in a fight at a bus stop. He indicated the police were “feeding [him] things” to lie about during the interview, so he made up the story about recognizing John from the bus stop and lied that the Muhammads were out to get him—he did not know they were a gang, he thought the Muhammads were just a family. Major denied standing up in the sunroof and denied firing a gun. Major also denied being a gang member or associating with gangs. He denied having any indication or reason to believe a shooting was going to occur while they were riding around in the car. He denied knowing Tucker was associated with the Garrett Street gang and indicated he had only known Tucker for a few days prior to the shooting.

DISCUSSION

I. Tucker’s Substantial Evidence Challenge

A. Background

Tucker argues his conviction for permitting another person to discharge a firearm from a vehicle pursuant to section 26100, subdivision (b) (count 6), is not supported by substantial evidence. According to Tucker, for criminal liability to attach under section 26100, subdivision (b), a defendant must either (1) affirmatively assent to, or authorize, the discharge of a firearm from a vehicle he owned and/or was driving; or (2) know that another person intended to discharge a firearm from a vehicle the defendant owned or was driving and had the ability to stop that person from doing so. Tucker contends there is no evidence he affirmatively assented to or authorized Major and/or Clay to discharge a firearm from his car. The victim, John, testified Young was the only person who spoke to him, and John did not hear anyone from the car say anything else. There was no indication in Major’s testimony that Tucker said anything that could be interpreted as authorizing or assenting to the discharge of a firearm from the vehicle.

Tucker also argues there is no evidence he knew anyone intended to discharge a weapon from the car, or that he had the ability to stop him or them from doing so. There is no evidence Tucker knew there were guns in the car or that they would be discharged. The jury acquitted Tucker of aiding and abetting Major in committing an assault with a firearm as to count 5, and Tucker contends this verdict establishes the jury believed the prosecution failed to prove Tucker knew Major and/or Clay intended to discharge a firearm. As such, Tucker maintains, the prosecution likewise lacked evidence Tucker knew anyone intended to discharge a weapon for purposes of count 6. Tucker maintains he had no ability to prevent Major and/or Clay from discharging their weapons: there was no evidence Tucker had any control over what the others did as they were not members of Tucker’s Garrett Street gang.

The People maintain there was ample evidence Tucker knowingly permitted the discharge of a firearm from his vehicle. There was evidence Tucker had familiarity with weapons as he had previously been arrested in a car with a gun; Tucker was a gang member who was driving a vehicle with three other gang members in Modoc gang territory. Even after Young pointed a gun at John, Tucker kept the car in place and allowed his passengers the opportunity to shoot at John. The People assert Tucker was aware by this time that his passengers had loaded guns, and Tucker did not drive away until John was running away after he heard shots fired at him.

B. Standard of Review

“The Due Process Clause of the Fourteenth Amendment denies States the power to deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt every element of the charged offense” (Carella v. California (1989) 491 U.S. 263, 265, citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357). On appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “‘is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) “The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Zamudio, supra, at p. 357.)

“In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence.” (People v. Zamudio, supra, 43 Cal.4th at p. 357.) “‘[I]t is the jury, not the appellate court which must be convinced of the defendant’s guilt .…’” (People v. Nguyen, supra, 61 Cal.4th at pp. 1055–1056.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.” (People v. Zamudio, supra, at p. 357.) However, “speculation, supposition and suspicion are patently insufficient to support an inference of fact.” (People v. Franklin (2016) 248 Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Xiong (2013) 215 Cal.App.4th 1259, 1268.)

C. Analysis

Section 26100, subdivision (b), imposes criminal liability on “[a]ny driver or owner of any vehicle, whether or not the owner of the vehicle is occupying the vehicle, who knowingly permits any other person to discharge any firearm from the vehicle .…” The constitutionality of its exactly worded statutory predecessor, section 12034, subdivision (b), was challenged in People v. Laster (1997) 52 Cal.App.4th 1450, 1466–1467. (See Stats. 2010, ch. 711, § 4.) In concluding subdivision (b) was not unconstitutionally void for vagueness, the court noted this section applies to a defined class of persons who have a duty to act: drivers and owners of vehicles; it imposes a legal duty on such drivers and owners to prevent the discharge of firearms from their vehicles. (People v. Laster, supra, at p. 1467.) Pursuant to the statute’s language, the court observed a driver or owner can be held criminally liable for “affirmatively assenting to[] or authorizing the discharge; but he or she can also be held criminally liable for failing to prevent the discharge (provided, of course, he or she had the power or ability to prevent it).” (Ibid.) By its plain language, the statute imposes criminal liability “only where the driver or owner ‘knowingly’ permits the discharge.” (Ibid.) As such, to find a defendant guilty of permitting another person to discharge a weapon from a vehicle pursuant to section 26100, subdivision (b), the prosecution must prove beyond a reasonable doubt that (1) the defendant was the driver or owner of the vehicle; (2) the defendant permitted someone to shoot a firearm from the vehicle; (3) the defendant knew that he or she was permitting someone to shoot a firearm from the vehicle; and (4) the other person shot the firearm from the vehicle. (§ 26100, subd. (b); CALCRIM No. 969.)

Reviewing the entire record in the light most favorable to the judgment, there is reasonable, credible, and solid evidence based on which a rational trier of fact could have found Tucker guilty beyond a reasonable doubt of permitting another to discharge a firearm from his vehicle. (People v. Zamudio, supra, 43 Cal.4th at p. 357.)

While there was no evidence Tucker affirmatively authorized or assented to the discharge of a weapon from the car, there is substantial evidence he knowingly permitted the discharge of a weapon and failed to prevent it from occurring even though he had a plausible opportunity to do so. Evidence established Tucker was driving the car when the shooting occurred: Major testified it was Tucker’s car and he was driving at the time of the shooting; the officer who stopped the vehicle only a few minutes after the shooting testified Tucker was driving the car at that time. There was also substantial evidence a firearm was discharged from the car. John testified two of the passengers in Tucker’s car pointed guns at him, he heard gunshots as he was attempting to run away, and then he discovered he had been shot. When Tucker’s car was stopped by an officer approximately 12 minutes after police were dispatched to the scene, three guns were recovered from the car, including a silver semiautomatic weapon that matched John’s description of the gun in the hands of the passenger who stood up in the sunroof. A .25-caliber bullet casing found at the scene of the shooting also matched the type of ammunition used by the silver semiautomatic handgun found in the car. Tucker, Clay, and Major all tested positive for GSR. Major testified he saw Clay pick up the silver handgun when Clay stood up in the sunroof, and he heard a gunshot when the car was stopped next to John.

Moreover, there was evidence Tucker knowingly permitted passengers in the car to discharge their firearms. Circumstantially, the evidence strongly suggested this was a gang-related shooting and that Tucker was not merely an unaware, unknowing driver whose passengers suddenly and without any warning happened to shoot a weapon from his car. There was substantial evidence Tucker and his passengers were active gang members. The gang expert testified Tucker was a Garrett Street gang member, that Young and Clay were Modoc gang members, and that Major was a U-Boys gang member—all gangs within the MUG alliance, which is an association of the Modoc, U-Boys, and Garrett Street gangs. Price testified gang members within the alliance are often together, and that the TWAMP alliance, made up of another set of gangs, including the Muhammads, is a rival alliance. The MUG and TWAMP alliances are known to have violent confrontations. Price testified that shooting a rival gang member during a drive-by shooting elevates the status of any gang member in the vehicle, including a driver. He also testified gang members will commit crimes on their own turf—shooting a rival within a gang’s own turf sends a message to rivals the area is not a place they should frequent.

While Major testified the four were driving around to buy marijuana, he also conceded when they stopped the car next to John, Major heard someone in the car ask John where he was from—a question John immediately understood to be about his gang status and which expert testimony corroborated was intended to elicit gang-membership status. There was also some evidence suggesting Major believed John was associated with the Muhammads, although testimony did not reveal whether Major shared this belief with anyone else in the vehicle. As a gang member, Tucker would have understood Young’s question was about John’s gang status, and while Major testified there was no conversation in the vehicle about confronting John, it was nonetheless reasonable to infer Tucker knew he was stopping the car to confront a potential rival gang member. (People v. Maury (2003) 30 Cal.4th 342, 396 [appellate court “must accept logical inferences that the jury might have drawn from the circumstantial evidence”].)

To enable Young to ask John where he was from, Tucker maneuvered the vehicle and stopped it next to John, physically facilitating the encounter. While there is no direct evidence Tucker knew there were guns in the vehicle at the moment he stopped the car near John, John’s testimony about the encounter was substantial evidence Tucker would have become aware of the guns and that they were about to be discharged. When Young asked John where he was from, John replied and tried to walk away. At that point, Young pointed his gun at John, and another person with dreadlocks stood up in the sunroof and pointed a gun at John. John testified he “kind of like froze up and put [his] hands up, and then they just stayed right there.” He “didn’t know what to do next” and he “kind of like backed up a little bit” and when he felt like they were not going to do anything, he started walking away; at that point, one or both vehicle passengers started shooting, and then John ran.

Given Tucker’s position as driver, it was reasonable to infer he knew Young—the passenger right next to him—had pulled out a gun and pointed it at John. John essentially testified there was a pause between the time the guns were aimed at him and when the guns were discharged. Despite this pause, there is no evidence Tucker moved the car in an attempt to prevent Young or the rear passenger standing in the sunroof from shooting. Tucker argues because John did not think they were going to shoot the drawn weapons, it could not be inferred Tucker knew they intended to shoot. However, Tucker’s knowledge his passengers intended to discharge their drawn weapons was circumstantially supported. The weapons were held by gang members within Tucker’s own alliance, they were pointed at a potential rival within Modoc territory, drive-by shootings were part of the Modoc gang culture, both Young and Clay were Modoc gang members, and shooting a rival elevated a gang member’s status—including that of the driver. As a gang member within the MUG alliance, Tucker would have known all of that and it would have been in his interest to permit the shooting to elevate his own status. (See People v. Gonzales (2015) 232 Cal.App.4th 1449, 1463 [(“‘Evidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction.’”].)

Further, the moment the weapons were drawn, Tucker—as the driver—had the ability to prevent the weapons from being discharged by simply driving away from the intersection. But, Tucker did not do that; instead, he facilitated the entire interaction by stopping his car next to John for the duration of the interaction and doing nothing to drive away when the weapons were drawn and before they were fired. To reverse a conviction for insufficiency of the evidence, it must clearly appear that under no hypothesis whatsoever is there sufficient substantial evidence to support it. (People v. Stewart (2000) 77 Cal.App.4th 785, 790). We are not persuaded Tucker has made such a showing. In our view, the evidence discussed above and the inferences that reasonably could have been drawn from it were sufficient to permit a jury to conclude Tucker knowingly permitted someone to shoot a firearm from his vehicle, which he had an opportunity to prevent but did not do so.

This conclusion is not undercut by the jury’s not-guilty verdict as to count 5 against Tucker for aiding and abetting an assault with a firearm. Tucker argues the not-guilty verdict on count 5 indicates the jury determined the prosecution failed to establish Tucker had knowledge that any of the passengers intended to discharge a firearm. Without evidence Tucker knew others were planning to discharge a firearm from the vehicle as to count 5, Tucker maintains he could not have knowingly permitted someone to discharge a weapon from his vehicle as to count 6. Tucker’s argument in this regard is tantamount to asserting the jury’s verdict on count 5 and count 6 are inconsistent. One of the reasons purported inconsistencies in a jury’s verdict are not generally challengeable is because an individualized assessment of the reason for the inconsistency “‘would be based either on pure speculation, or would require inquiries into the jury’s deliberations that courts generally will not undertake.…’” (People v. Palmer (2001) 24 Cal.4th 856, 863, quoting United States v. Powell (1984) 469 U.S. 57, 66–67 [considering a case where a single jury inconsistently found a single defendant guilty of some counts and not guilty of others].) A criminal defendant’s protection against jury irrationality or error is provided through the independent review of the sufficiency of the evidence, and this review “‘should be independent of the jury’s determination that evidence on another count was insufficient.’” (Ibid., discussing the reasoning of United States v. Powell, supra, at p. 67.)

As the jury was instructed here, to establish a defendant is guilty of aiding and abetting the commission of a crime, the prosecution must prove (1) the perpetrator committed a crime; (2) the defendant knew the perpetrator intended to commit the crime; (3) before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and (4) the defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. (CALCRIM No. 401; see People v. Prettyman (1996) 14 Cal.4th 248, 259.) Of those elements, it is impossible to know which the jury found the prosecution had not proven beyond a reasonable doubt. As discussed in United States v. Powell, supra, 469 U.S. at page 67, we cannot divine the jury’s basis for its not-guilty verdict as to Tucker’s aiding and abetting an assault with a firearm (count 5) and then superimpose that conjured reasoning onto our consideration of the sufficiency of evidence as to count 6. The sufficiency of the evidence to support the conviction on count 6 must be considered independently from the jury’s verdict as to count 5. (People v. Palmer, supra, 24 Cal.App.4th at p. 863.) For the reasons discussed above, we find substantial evidence supports Tucker’s conviction on count 6.

II. Joinder in Codefendant’s Applicable Arguments

At the conclusion of his opening brief, Tucker notes he joins “in any arguments made by the [codefendant], Eric Major, in his opening brief that are applicable to [Tucker].” The People object to this blanket joinder for failing to provide a particularized argument of Tucker’s ability to seek relief on the grounds articulated by Major and urges the court to deem the purportedly joined arguments forfeited.

Joinder is broadly permitted (see Cal. Rules of Court, rule 8.200(a)(5)), “but each appellant has the burden of demonstrating error and prejudice .…” (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.) As such, if a party’s briefs do not provide legal argument and citation to authority on each point raised, “‘the court may treat it as waived, and pass it without consideration.’” (People v. Stanley (1995) 10 Cal.4th 764, 793.) Tucker joined any applicable arguments raised by codefendant Major, but at the time of this blanket joinder, Major had not yet filed his opening brief. When Major filed his opening brief in February 2018, his assertions of error were predicated on his age and the ineffective assistance of his counsel in failing to move to suppress his police-interview confession. Tucker filed a reply brief in July 2018, but never mentioned Major’s arguments or responded to the People’s assertion his joinder in Major’s arguments was improper without any particularized argument. Absent any assertion how Major’s contentions of error apply specifically to Tucker, we deem the joined arguments forfeited and decline to consider them. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 363 [“party purporting to join some or all of the claims raised by another are obligated to thoughtfully assess whether such joinder is proper as to the specific claims and, if necessary, to provide particularized argument in support of his or her client’s ability to seek relief on that ground”].) Moreover, Major’s claims of error do not appear applicable to Tucker: Tucker was not a minor at the time of the shooting, and it is not clear how suppression of Major’s confession would undercut the jury’s verdict as to Tucker on counts 5 and/or 6.

DISPOSITION

The judgment is affirmed.

MEEHAN, J.

WE CONCUR:

LEVY, Acting P.J.

PEÑA, J.

Case Number: BC699909 Hearing Date: December 27, 2019 Dept: 47

Michael Hoffman v. The Men’s Warehouse, Inc., et al.

MOTION TO QUASH NOTICES OF DEPOSITION OR, IN THE ALTERNATIVE, FOR A PROTECTIVE ORDER

MOVING PARTY: Defendant The Men’s Wearhouse, Inc.

RESPONDING PARTY(S): Plaintiff Michael Hoffmann

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges discrimination based on age and sexual orientation. Plaintiff also alleges whistleblower retaliation, constructive termination, emotional distress and defamation.

Defendant moves to quash deposition notices for three individuals: Eugene Ryan, Louis Carpentier, and Joel Schultz. On November 14, 2019, the Court granted the protective order and stayed the depositions pending this hearing.

TENTATIVE RULING:

Defendant The Men’s Wearhouse, Inc.’s motion to quash notices of deposition is GRANTED as to the deposition notice for Joel Schultz.

Defendant’s alternative motion for a protective order is DENIED AS MOOT as to Joel Schultz and is DENIED as to Louis Carpentier and Eugene Ryan.

The Court finds that an award of sanctions in connection with making or opposing this motion would be unjust and declines to award sanctions to either party.

DISCUSSION:

Motion To Quash Notices of Deposition

Three Motions in One (Not Including the Proper Alternative Motion for Protective Order)

At the outset, the Court notes that this motion is three motions in one: Defendant seeks to quash three separate notices of deposition. Defendant does make some overlapping arguments about these notices, but often that is inappropriate, given that the three potential deponents are not identical in every relevant way.

In the future, moving party is ordered to obtain separate hearing reservations and pay separate filing fees. Combining multiple motions under the guise of one motion with one hearing reservation manipulates the Court Reservation System and unfairly jumps ahead of other litigants. Moreover, combining motions to avoid payment of separate filing fees deprives the Court of filing fees it is otherwise entitled to collect.

Be that as it may, the Court will still exercise its discretion to hear all three motions, but this order will not become effective until moving party pays an additional $120 in filing fees.

Meet and Confer Requirement

The Declaration of Cory D. Catignani reflects that the parties met and conferred as required by CCP § 2025.410(c).

Analysis

Defendant moves to quash three deposition notices pursuant to CCP § 2025.410, which provides:

(a) Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled, on the party seeking to take the deposition and any other attorney or party on whom the deposition notice was served.

(b) If an objection is made three calendar days before the deposition date, the objecting party shall make personal service of that objection pursuant to Section 1011 on the party who gave notice of the deposition. Any deposition taken after the service of a written objection shall not be used against the objecting party under Section 2025.620 if the party did not attend the deposition and if the court determines that the objection was a valid one.

(c) In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.

(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to quash a deposition notice, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(CCP § 2025.410(a)-(d) (bold emphasis and underlining added).)

CCP § 2025.410 authorizes an order staying the taking of a deposition or quashing the deposition notice if the deposition notice does not comply with Article 2, commencing with § 2025.210. Article 2 (CCP §§ 2025.210 – 2025.290) specifies the procedural requirements for taking an oral deposition, including when a deposition notice may be served, the contents of the deposition notice, upon whom notice is to be served, the place of taking of deposition, number of days required for notice, the effect of service of deposition notice, and time limits for depositions. The instant motion is not based on any defects of this nature as to two of the three proposed depositions: those of Louis Carpentier and Eugene Ryan. As such, there is no basis to quash these deposition notices under CCP § 2025.410. Accordingly, the motion to quash is DENIED as to the deposition notices of Louis Carpentier and Eugene Ryan.

As to the third potential deponent, Joel Schultz, Defendant barely squeaks by with a brief mention (buried in the middle of a paragraph in the middle of its separate statement) of a basis on which his deposition notice could potentially be quashed: Defendant states that Mr. Schultz lives in the Oakland area. This was buried so far within the separate statement Plaintiff missed it entirely. (Plaintiff’s Separate Statement, at p. 13 [discussing Defendant’s motion to quash as to Mr. Schultz and stating that “Defendant’s only argument in support of its motion to quash the deposition notices at issue is that the depositions present an undue burden and are oppressive because they are irrelevant and ‘propounded at the eleventh hour’” (emphasis in original)].)

Under CCP § 2025.250, in general, the “deposition of a natural person, whether or not a party to the action, shall be taken at a place that is, at the option of the party giving notice of the deposition, either within 75 miles of the deponent’s residence, or within the county where the action is pending and within 150 miles of the deponent’s residence.” (CCP § 2025.250(a).) Defendant objected on this basis, among others, to the deposition notice for Mr. Schultz. (Reply Decl. of Cory D. Catignani, Exh. E, at p. 2.)

A party “desiring to take the deposition of a natural person who is a party to the action or an officer, director, managing agent, or employee of a party may make a motion for an order that the deponent attend for deposition at a place more distant than that permitted under Section 2025.250.” (CCP § 2025.260(a).) Thus, Plaintiff may file a motion seeking permission to depose Mr. Schultz here even though Defendant maintains that he lives in Oakland. At this time, however, Plaintiff has not sought that permission.

Accordingly, the motion to quash is GRANTED as to the deposition notice for Joel Schultz only.

As noted above, sanctions are mandatory against the losing party on a motion to quash unless the losing party acted “with substantial justification” or other circumstances make the imposition of a sanction “unjust.” (CCP § 2025.410(d).) Here, the parties each partially won and partially lost this motion. Therefore, the Court finds that imposing sanctions for only partially losing the motion would be unjust. Accordingly, no sanctions are awarded to either party on the motion to quash.[1]

Alternative Motion for a Protective Order

Meet and Confer Requirement

The Declaration of Cory D. Catignani reflects that the parties met and conferred as required by CCP § 2025.420(a).

Analysis

Alternatively, Defendant seeks a protective order pursuant to CCP § 2025.420, which provides:

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

(1) That the deposition not be taken at all.

(2) That the deposition be taken at a different time.

. . .

(9) That certain matters not be inquired into.

(10) That the scope of the examination be limited to certain matters.

(11) That all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, copied, tested, or sampled, or that conditions be set for the production of electronically stored information designated in the deposition notice.

. . .

(CCP § 2025.420(a), (b).)

In light of the Court’s decision to quash the deposition notice for Joel Schultz, the alternative motion for a protective order is DENIED AS MOOT as to him.

As to Eugene Ryan and Louis Carpentier, Defendant argues that they have no information relevant to Plaintiff’s claims because Plaintiff does not base any of his claims on their conduct and because any such claims would be barred by the statute of limitations. (Notice, at p. 2.) Plaintiff argues that these claims would not be barred based on the “continuing violation” doctrine. Even if that is not the case, however, Defendant’s argument reflects an overly narrow view of the scope of discovery. Discovery is proper if the information sought is relevant to the “subject matter” of the action. (CCP § 2017.010.) This is broader than being relevant to the “issues” and means that the discovery is appropriate if it might reasonably help a party evaluate the case, prepare for trial, or facilitate settlement. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013; Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1392.)

Here, as to Louis Carpentier, Plaintiff notes that Defendant may raise defenses based on Plaintiff’s work performance, and Mr. Carpentier was among those who disciplined Plaintiff when he was Plaintiff’s supervisor. (3AC ¶ 14 [noting that Carpentier was the manager of the Torrance store where Plaintiff worked and “decided to transfer him” to Huntington Beach].) It stands to reason that Mr. Carpentier may have information relevant to the subject matter of this lawsuit based on employment discrimination, harassment, and retaliation.

Likewise, as to Eugene Ryan, Plaintiff indicates that Ryan disciplined him for complaining of sexual harassment. (Plaintiff’s Separate Statement, at p. 9.) Just as Mr. Carpentier’s testimony may therefore be relevant regarding Plaintiff’s work performance, so to may Mr. Ryan’s testimony be relevant, whether or not it is actionable based on the “continuing violation” doctrine.

Moreover, Defendant has not shown that the “burden, expense, or intrusiveness involved in . . . [the discovery procedure] clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Emerson Elec. Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.) The Declaration of Cory D. Catignani describes the volume of discovery Plaintiff has propounded in this case, but no where does the Catignani Declaration state facts establishing that these three depositions are oppressive or unduly burdensome.

Accordingly, the alternative motion for a protective order is DENIED as to Eugene Ryan and Louis Carpentier.

For the reasons discussed in connection with the motion to quash, no party is awarded sanctions in connection with the alternative motion for protective order. The Court finds that the circumstances render an award of sanctions against Defendant unjust.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 27, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

[1] The Court also notes that Defendant did not request sanctions in its notice of motion, and Plaintiff did not file any notice of opposition in which he requested sanctions. Rather, Plaintiff’s request for $9,100 (!) in sanctions in connection with his opposition is buried near the end of his opposing memorandum and fails to even name the parties or counsel against whom sanctions are sought. Even if the Court had been inclined to award Plaintiff sanctions, which it is not, this request does not meet the requirements of due process and is so excessive the Court would be justified in denying it in its entirety on that basis alone. (CCP § 2023.040 [requiring a request for sanctions to “identify every person, party, and attorney against whom the sanction is sought” in the notice]; Serrano v. Unruh (1982) 32 Cal.3d 621, 635 [“A fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.”].)

Case Information

19-CIV-01251 | JOYCE KOHN vs. JOEL PICCININI, et al

Case Number
19-CIV-01251

Court
Civil Unlimited

File Date
03/07/2019

Case Type
(22) Unlimited Auto

Case Status
Active

Party
Plaintiff
KOHN, JOYCE

Active Attorneys

Lead Attorney
CHANG, HAZEL S
Retained

Defendant
PICCININI, JOEL

Active Attorneys

Lead Attorney
JUNGWIRTH, DANIEL J
Retained

Defendant
DOES 1 TO 20

Cause of Action

File Date
Cause of Action
Type
Filed By
Filed Against
03/07/2019 Complaint Action KOHN, JOYCE
PICCININI, JOEL
DOES 1 TO 20
Events and Hearings

03/07/2019 New Filed Case

03/07/2019 Civil Case Cover Sheet

Civil Case Cover Sheet

03/07/2019 Complaint

Complaint

03/07/2019 Summons Issued / Filed

Summons Issued / Filed

03/07/2019 Notice of Case Management Conference

Notice of Case Management Conference

03/07/2019 Cause Of Action

Action
ComplaintFile Date
03/07/2019
03/27/2019 Proof of Service by SUBSTITUTED SERVICE of

Proof of Service by SUBSTITUTED SERVICE of SUMMONS; COMPLAINT; CIVIL CASE COVER SHEET; NOTICE OF CAS

Comment
SUMMONS; COMPLAINT; CIVIL CASE COVER SHEET; NOTICE OF CASE MANAGEMENT CONFERENCE Served on JENNIFER PICCININI – WIFE/CO-OCCUPANT
04/12/2019 Answer (Unlimited)

Answer (Unlimited) Answer TO COMPLAINT

Comment
Answer TO COMPLAINT
04/12/2019 Advanced Jury Fee Defendant Non-Refundable

04/12/2019 Case Management Statement

Case Management Statement CMC 7/11

Comment
CMC 7/11
04/12/2019 Proof of Service by MAIL of

Proof of Service by MAIL of CASE MANAGEMENT STATEMENT served on EUGENIA L. STEELE, ESQ

Comment
CASE MANAGEMENT STATEMENT served on EUGENIA L. STEELE, ESQ
05/15/2019 Substitution of Attorney as to

Substitution of Attorney as to Former Attorney: EUGENIA STEELE New Attorney: HAZEL S CHANG

Comment
Former Attorney: EUGENIA STEELE New Attorney: HAZEL S CHANG
07/03/2019 Notice of Posting Jury Fees

Notice of Posting Jury Fees

07/03/2019 Advanced Jury Fee Plaintiff Non-Refundable

07/03/2019 Case Management Statement

Case Management Statement

Comment
CMC 7/11

07/11/2019 Case Management Conference

~CIV Minute Order – Case Management Conference 07/11/2019

Judicial Officer
Grandsaert, John L.

Hearing Time
9:00 AM

Result
Held

07/11/2019 Notice of referral to ADR and Notice to file Stipulation and

ADR Referral

ADR Referral

ADR Referral

Comment
Order to ADR within 21 days
07/11/2019 Master Calendar to set MSC date accordingly and send notice

07/17/2019 Stipulation and Proposed Order received & forwarded to Dept

Comment
FORWARD TO DEPT. 11, ORDER TO APPROPRIATE DISPUTE RESOLUTION
07/22/2019 Notice of Mandatory Settlement Conference and Jury Trial

Notice of Mandatory Settlement Conference and Jury Trial

07/23/2019 Stipulation and Order to ADR

Stipulation and Order to ADR SESSION DATE: 10/28

Judicial Officer
Grandsaert, John L.Comment
SESSION DATE: 10/28
08/01/2019 ADR Stipulation and Order Due in Clerk’s Office

10/15/2019 ADR Evaluation Notice Sent

10/28/2019 ADR Mediation Scheduled

11/04/2019 Notice of Motion and Motion to be Relieved as Counsel

Notice of Motion and Motion to be Relieved as Counsel NOTICE OF MOTION AND MOTION TO BE RELIEVED AS

Comment
NOTICE OF MOTION AND MOTION TO BE RELIEVED AS COUNSEL
12/20/2019 Declaration in Support

Declaration in Support OF ATTORNEY’S MOTION TO BE RELIVED AS COUNSEL

Comment
OF ATTORNEY’S MOTION TO BE RELIVED AS COUNSEL

12/23/2019 Motion to be Relieved as Counsel

Judicial Officer
Fineman, Nancy L.

Hearing Time
9:00 AM

Result
Held

Comment
NOTICE OF MOTION AND MOTION TO BE RELIEVED AS COUNSEL

12/23/2019 Tentative ruling adopted and becomes order:

Comment
HAZEL S. CHANG’S MOTION TO BE RELIEVED AS COUNSEL The motion to be relieved as Plaintiff’s counsel of record by Hazel S. Chang is DENIED without prejudice for failure to use the form declaration (MC-052) required by CRC 3.1362(c) and the failure to provide sufficient proof that the moving papers were served on plaintiff. The declaration of Hazel Chang states only that they were served by mail and email. The date on which the service occurred is not provided.

07/06/2020 Mandatory Settlement Conference

Judicial Officer
Grandsaert, John L.

Hearing Time
1:30 PM


07/20/2020 Jury Trial

Judicial Officer
Master Calendar, –

Hearing Time
9:00 AM

Comment
JURY TRIAL TIME ESTIMATE 5 DAYS