Legal News

3rd Appellate District

Court data last updated: 12/27/2019 12:46 PM
Docket (Register of Actions)
Gonzales et al. v. Silverhawk, Inc., et al.
Case Number C083810
Date Description Notes

01/04/2017 Notice of appeal lodged/received. Filed in the trial court on 12/29/16.

01/19/2017 Letter to counsel – 10 days to file case information statement. CCIS and AMS due: 01/30/17

01/19/2017 Respondent’s mediation statement filed. Gonzales’s RMS due 10 days after AMS.

01/19/2017 Respondent notified re CAMS. Virk’s RMS due 10 days after AMS.

02/09/2017 Appellant’s mediation statement filed.

02/09/2017 Civil case information statement filed.

02/14/2017 Respondent’s mediation statement filed. Respondent Gonzales’

02/16/2017 Respondent’s mediation statement filed. Respondent Virk’s

03/15/2017 Case ordered not eligible for mediation. BUTZ, Acting P.J.

03/15/2017 Letter sent to counsel re: Appeal not selected for mediation.

04/03/2017 Notice of appeal lodged/received. filed in the trial court 03/29/17 by Silverhawk, Inc., Kamal Kapoor and Sunita Kapoor. Attorneys fees, etc.

04/05/2017 Letter to counsel – 10 days to file case information statement.

03/29/2017 Appellant’s notice designating record on appeal filed in trial court on: 03/27/17. Designating an Appendix only.

06/05/2017 Requested – extension of time.

06/05/2017 Granted – extension of time.

10/16/2017 Appellant notified re failure to timely file opening brief. AOB and appendix due: 10/31/2017.

11/01/2017 Returned document for non-conformance. Appellant’s AOB and Appendix are being rejected for the following deficiencies in the California Rules of Court and Local Rule 5: 1. No bookmarks on the AOB or Appendixes, 2. Indexes for the appendix are not in compliance with rule 8.144(b) and Local Rule 5, 3. Appendix volumes are missing cover sheet as required by rule 8.124 (d) and Local Rule 5, 4. Missing service of the AOB on the trial per rule 8.212 (c), 5. AOB is missing the Certificate of Interested Entities or Persons as required by rule 8.208, 6. Word count should reference rule 8.204(c). Corrected AOB and Appendixes are to be re-served and filed with this court by: 11/8/17.

11/14/2017 Returned document for non-conformance. AOB rejected pursuant to telephone conversation with counsel for appellant. Now due: 11/21/17

11/14/2017 Returned document for non-conformance. Request for extension of time to file appellant’s appendix rejected pursuant to telephone conversation with counsel for appellant. AAO NOW DUE: 11/21/17

11/16/2017 Returned document for non-conformance. Appellant’s AOB and Appendix are being rejected for the following deficiencies in the California Rules of Court and Local Rule 5: 1. No bookmarks on the Appendixes, 2. Indexes for the appendix are not in compliance with rule 8.144(b) and Local Rule 5, 3. No proof of service on the trial court, 4. The participating trial court judicial officer must be on the cover page of the appendix, 5. Pagination required. Corrected AOB and Appendixes are to be re-served and filed with this court by: 11/21/17.

11/14/2017 Certificate of interested entities or persons filed by: appellant.

11/22/2017 Returned document for non-conformance. Appellant’s AOB and Appendix are being rejected for the following deficiencies in the California Rules of Court and Local Rule 5: 1. Indexes for the appendix are not in compliance with rule 8.144(b) and Local Rule 5. 2. Pagination required. Corrected AOB and Appendixes are to be re-served and filed with this court by: 12/1/2017.

11/22/2017 Letter sent to: Appellant’s AOB and Appendix are being rejected for the following deficiencies in the California Rules of Court and Local Rule 5: 1. Indexes for the appendix are not in compliance with rule 8.144(b) and Local Rule 5. 2. Pagination required. Corrected AOB and Appendixes are to be re-served and filed with this court by: 12/1/2017.

12/04/2017 Requested – extension of time. Appellant to 1/2/2018 to file AAO.

12/01/2017 Granted – extension of time. Appellant to 1/2/2018 to file AAO. RAYE, P.J.

01/02/2018 Appellant’s opening brief. Defendant, Cross-complainant and Appellant: Silverhawk, Inc., et al.
Attorney: Sunita Kapoor

01/04/2018 Appellant’s appendix filed. 1 vol. of 7 vols. appendix 171 pp. RB due: 2/1/2018.

01/04/2018 Appellant’s appendix filed. 2 vol. of 7 vols. appendix 172- 313 pgs. RB due: 2/1/2018.

01/04/2018 Appellant’s appendix filed. 3 vol. of 7 vols. appendix 314- 531 pgs. RB due: 2/1/2018.

01/04/2018 Appellant’s appendix filed. 4 vol. of 7 vols. appendix 532-735 pgs. RB due: 2/1/2018

01/04/2018 Appellant’s appendix filed. 5 vol. of 7 vols. appendix 736- 934 pgs. RB due: 2/1/2018.

01/04/2018 Appellant’s appendix filed. 6 vol. of 7 vols. appendix 935- 1036 pgs. RB due: 2/1/2018.

01/04/2018 Appellant’s appendix filed. 7 vol. of 7 vols. appendix 1037- 1160 pgs. RB due: 2/1/2018.

01/12/2018 Stipulation of extension of time filed:

04/02/2018 Respondent’s appendix filed. 1 Vol. (278 pp.)

04/02/2018 Respondent’s brief. Plaintiff, Cross-defendant and Respondent: Ricardo A. Gonzales
Attorney: Erin Elisabeth Guy Castillo
Cross-defendant and Respondent: Anthony Virk
Attorney: Daniel V. Kohls w/CIEP. No interested parties listed.

04/24/2018 Filed application and order of: Granted to 06/25/18.

06/19/2018 Requested – extension of time.

06/19/2018 Granted – extension of time.

07/24/2018 Requested – extension of time.

07/25/2018 Granted – extension of time.

08/06/2018 Appellant’s reply brief. Defendant, Cross-complainant and Appellant: Silverhawk, Inc., et al.
Attorney: Sunita Kapoor

08/06/2018 Case fully briefed.

11/29/2018 Filed change of firm name. by respondent attorney Ricardo Gonzales.

12/02/2019 Oral argument waiver notice sent. Requests due by 12/12/2019.

12/16/2019 Deemed submitted.

12/23/2019 Opinion filed. (Signed Unpublished) The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

Filed 12/27/19 Ghaffarpour v. Nematpour CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

FIROUZEH GHAFFARPOUR et al.,

Plaintiffs and Respondents,

SADEGH NEMATPOUR,

Defendant and Appellant.

B290188

(Los Angeles County

Super. Ct. No. BC375937)

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael J. Raphael, Judge. Reversed and remanded with directions.

Sadegh Nematpour in pro. per. for Defendant and Appellant.

Mazur & Mazur and Janice R. Mazur; Aroustamian & Associates and Ara Aroustamian for Plaintiffs and Respondents.

Defendant and appellant Sadegh Nematpour (Nematpour) appeals a $91,761 default judgment entered in favor of plaintiffs and respondents Firouzeh Ghaffarpour (Ghaffarpour) and Nabiollah Najafi Moallem (Moallem) (sometimes collectively referred to as Ghaffarpour or respondents). Nematpour’s default was entered after the trial court struck his answer on a motion by Ghaffarpour for terminating sanctions based on Nematpour’s failure to appear for his court-ordered deposition.

We conclude the default judgment as to Nematpour must be reversed because the complaint failed to state facts sufficient to constitute a cause of action against Nematpour, and remand the matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This is the fourth time this matter has been before this court. (Ghaffarpour et al. v. Commerce Plaza Hotel et al. (June 22, 2010, B211251) [nonpub. opn.]; Ghaffarpour v. Superior Court (2012) 202 Cal.App.4th 1463; Ghaffarpour et al. v. Commerce Plaza Hotel (Mar. 27, 2016, B256798) [nonpub. opn.].) With respect to the instant appeal, the relevant procedural history is as follows.

1. The complaint.

On August 14, 2007, Ghaffarpour, Moallem, and two other individuals filed suit against Commerce Plaza Hotel (the Hotel), SW Private Patrol aka South West Private Security (SW Security), as well as Does 1 through 100. The original complaint, which is the operative pleading, alleged that on June 17, 2006, the plaintiffs were present at the Hotel, which had been rented as a polling location for an election being held by the Islamic Republic of Iran. The plaintiffs were part of a group of activists and journalists who had assembled to protest the election. The protesters were denied entry to the Hotel and were forced by the defendants and their agents to move to the sidewalk outside the Hotel’s premises. When the plaintiffs reassembled on the sidewalk, defendants and their agents violently and with threat and use of physical violence attempted to take away the protestors’ video and photography equipment. The protestors approached security personnel to inquire as to their conduct, and defendants and their agents then grabbed Moallem, handcuffed him, and dragged him away. When the other plaintiffs approached to demand what was the basis of the attack and detention of Moallem, defendants and their agents attacked them as well.

The complaint pled seven causes of action arising out of the incident: (1) negligence; (2) intentional infliction of emotional distress; (3) civil battery; (4) false imprisonment; (5) civil assault; (6) negligent failure to protect against criminal assault and battery; and (7) negligent failure to render aid to plaintiffs.

The Doe allegations in the complaint consisted of the following: the true names and capacities of Does 1 through 100 were unknown to plaintiffs, who therefore sued said defendants by their fictitious names, and plaintiffs would request leave to amend to allege their true names and capacities once those were ascertained; Does 1 through 50 were the owners and operators of the Hotel and hired SW Security to provide security service during private events; and Does 1 through 50 hired SW Security for the subject election event.

2. The Doe amendment naming Nematpour as Doe 3.

Nematpour was not named in the original complaint. He was named as a Doe defendant six years into the litigation, based on the following circumstances. On November 14, 2013, Ghaffarpour’s counsel obtained a copy of the Banquet Function Agreement with the names of the men who organized the event, including Nematpour. Three weeks later, on December 6, 2013, Ghaffarpour filed a Doe amendment naming Nematpour as Doe 3, that is to say, as one of the “owners and operators” of the Hotel. (Code Civ. Proc., § 474.) Ghaffarpour did not amend the original complaint to include any specific factual allegations against Nematpour.

3. Nematpour answers the complaint, which is subsequently stricken for his noncompliance with discovery.

On July 7, 2017, Nematpour filed an answer. He generally denied the allegations and pled as an affirmative defense that “each cause of action in the Complaint fails to allege facts sufficient to constitute a cause of action as against this answering Defendant.”

After Nematpour failed to appear at his deposition, Ghaffarpour moved to compel his deposition. The trial court granted the motion to compel, imposed monetary sanctions of $1,260, and ordered Nematpour to appear for his deposition on October 23, 2017. Nematpour again failed to appear.

On October 31, 2017, Ghaffarpour filed a motion for terminating sanctions, requesting that Nematpour’s answer be stricken and his default entered due to his failure to appear for his court-ordered deposition on October 23, 2017.

On November 14, 2017, the trial court granted the motion for terminating sanctions, struck Nematpour’s answer, entered his default, and continued the matter to January 17, 2018, to enable Ghaffarpour to submit a default prove-up package.

4. Proceedings leading up to entry of the default judgment.

On November 21, 2017, Nematpour filed a motion to dismiss the action against him based on Ghaffarpour’s failure to bring it to trial within five years. (§§ 583.310, 583.360.) According to Nematpour, the five-year period expired no later than June 14, 2017.

In opposition, Ghaffarpour contended that because Nematpour was in default, he was precluded from bringing the dismissal motion, and in any event, the motion was meritless.

On January 16, 2018, the trial court denied Nematpour’s motion to dismiss and set the matter for a default prove-up hearing.

On March 7, 2018, the trial court denied a motion by Nematpour for reconsideration of the order that imposed terminating sanctions and struck Nematpour’s answer to the complaint.

On March 22, 2018, the trial court entered a default judgment against Nematpour in the total amount of $91,761.50, including damages of $50,000 to Ghaffarpour and $40,000 to Moallem.

On May 21, 2018, Nematpour filed a timely notice of appeal from the default judgment.

CONTENTIONS

Nematpour contends the judgment must be reversed because the complaint failed to state facts sufficient to constitute a cause of action against him. Additionally, Nematpour asserts the claims against him were barred by the two-year statute of limitations (§ 335.1), and by Ghaffarpour’s failure to bring the matter to trial within five years (§ 583.310), and therefore the trial court lost the authority to grant the motion for terminating sanctions.

DISCUSSION

1. The sufficiency of the pleading is cognizable on the appeal from the default judgment.

a. General principles.

Although the trial court struck Nematpour’s answer and entered his default as a discovery sanction, the Supreme Court has rejected the argument that “default judgments entered for discovery violations should be held to differ fundamentally from other defaults as a matter of policy[.]” (Greenup v. Rodman (1986) 42 Cal.3d 822, 828.) Therefore, the usual rules relating to defaults and default judgments apply. On appeal from the default judgment, “ ‘[a]n objection that the complaint failed to state facts sufficient to constitute a cause of action may be considered.’ [Citations.] (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 282.) If the “well-pleaded allegations of the complaint do not state any proper cause of action, the default judgment in the plaintiff’s favor cannot stand.” (Ibid.)

b. No merit to respondents’ contention that Nematpour is barred from challenging the sufficiency of the pleading.

The respondents’ brief does not address Nematpour’s appellate challenge to the sufficiency of the pleading, and simply contends that Nematpour is precluded from raising the issue on appeal because he did not file a demurrer below, and instead, filed an answer to the complaint. Respondents are mistaken. “If the party against whom a complaint or cross-complaint has been filed fails to object to the pleading, either by demurrer or answer, that party is deemed to have waived the objection unless it is an objection that the court has no jurisdiction of the subject of the cause of action alleged in the pleading or an objection that the pleading does not state facts sufficient to constitute a cause of action.” (§ 430.80, subd. (a), italics added.) Thus, an issue of the failure of a complaint to state a cause of action is never waived “and may be raised for the first time on appeal.” (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 831, fn. 18.)

Moreover, Nematpour’s answer did object to the sufficiency of the complaint. As indicated, he pled as an affirmative defense that “each cause of action in the Complaint fails to allege facts sufficient to constitute a cause of action as against this answering Defendant.” Thus, even assuming that by filing an answer a defendant may concede the sufficiency of the pleading, here, Nematpour’s answer made no such concession.

We now examine the sufficiency of the pleading.

2. The complaint fails to state facts sufficient to constitute a cause of action against Nematpour.

a. Standard of appellate review.

As indicated, the issues that a defendant may properly raise on an appeal from a default judgment are limited, but include the sufficiency of the pleading. (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 824.) “Generally, a defendant in default ‘confesses the material allegations of the complaint. [Citation.]’ [Citation.] Nonetheless, the trial court may not enter a default judgment when the complaint’s allegations do not state a cause of action. [Citations.] No judgment can rest on such a complaint, as a defendant in default ‘ “admits only facts that are well pleaded.” ’ [Citations.]” (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 392 (Los Defensores).)

Thus, “[o]ur inquiry here into the complaint’s adequacy is akin to that triggered by a general demurrer, namely, whether the complaint lacks factual allegations indispensable to the asserted claims. [Citations.] A court must indulge reasonable inferences in support of the factual allegations in the complaint; mere uncertainties and other defects subject to a special demurrer do not bar a default judgment against the defendant. [Citations.] Nonetheless, the absence of essential factual allegations is fatal to a [default] judgment against the defendant. [Citation.]” (Los Defensores, supra, 223 Cal.App.4th at pp. 392–393.) Accordingly, where the defaulting defendant argues on appeal from a default judgment that the complaint does not state facts sufficient to constitute a cause of action against him, our standard of review is de novo. (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1242 [“appellate courts conduct a de novo review to determine whether the pleading alleges facts sufficient to state a cause of action under any possible legal theory”].)

b. The complaint fails to allege facts sufficient to state a cause of action against Nematpour as a hirer of the room at the Hotel and as an organizer of the event.

As stated in the respondents’ brief, Ghaffarpour’s theory is that Nematpour, as an organizer of the June 2006 election event that was conducted at the Hotel, is liable for “orchestrat[ing] the event and direct[ing] the security guards during it.” Similarly, in opposing Nematpour’s motion to dismiss under the five-year rule, Ghaffarpour explained below that in December 2013, shortly after Nematpour was identified as one of the individuals who rented the room for the event, Ghaffarpour filed a Doe amendment naming Nematpour as Doe 3.

The fundamental problem for Ghaffarpour is that the complaint is devoid of any facts to state a cause of action against Nematpour as a hirer of the room and an organizer of the event at the Hotel. The complaint does not allege that Nematpour, or any Doe defendant, hired a room at the Hotel. The complaint also does not contain any allegation that Nematpour, as a hotel patron, directed the security guards during the event. What the complaint does allege is that Does 1 through 50 “were the owners and operators” of the Hotel, and that it was the owners and operators of the Hotel that hired SW Security to provide security for the event. (Italics added.)

Thus, the operative complaint, filed in 2007, did not allege a cause of action against unknown Doe defendants for having hired the room for the election and having directed the security guards during the event. In an apparent attempt to avoid the statute of limitations, in December 2013, Ghaffarpour simply named Nematpour as Doe 3, that is to say, as one of the owners and operators of the Hotel. However, Nematpour admittedly was not an owner and operator of the Hotel—according to Ghaffarpour, Nematpour was one of the individuals who rented the room at the Hotel where the election event was conducted. This was made clear in the papers submitted by Ghaffarpour in support of the default prove-up, which stated that Nematpour was one of the two individuals who “rented one of [the] meeting rooms [at the Hotel] . . . to be used as a polling place for the presidential elections for the Islamic Republic of Iran.”

In reviewing the sufficiency of a complaint, although the factual allegations are deemed true, “ ‘where an allegation is contrary to law or to a fact of which a court may take judicial notice, it is to be treated as a nullity.’ [Citation.] The court may take judicial notice of such records as appellant’s affidavits [citation] and prior complaints in the same action [citation].” (Amid v. Hawthorne Community Medical Group, Inc. (1989) 212 Cal.App.3d 1383, 1387.) Given Ghaffarpour’s statements in the default prove-up papers and elsewhere that Nematpour rented the room at the Hotel for the event, we disregard the allegation in the complaint that Nematpour was an owner and operator of the Hotel.

As a result, the complaint lacks any factual allegations with respect to Nematpour’s role in the incident. Although Ghaffarpour seeks to hold Nematpour liable in tort based on his purported role in hiring a room at the Hotel and in directing the security guards during the event, the complaint is bereft of any factual allegations with respect to Nematpour’s capacity as a hirer of the room, let alone any factual allegations of wrongdoing by Nematpour. Simply stated, the absence of such essential factual allegations “is fatal to a [default] judgment” against Nematpour. (Los Defensores, supra, 223 Cal.App.4th at p. 393.)

c. Proceedings on remand.

Having determined the default judgment must be reversed because it was based on a complaint that failed to state a cause of action against Nematpour, the remaining issue is the appropriate disposition of this matter. Because Ghaffarpour could not proceed to a default prove-up and default judgment on the ill-pled complaint, we conclude the trial court abused its discretion in striking Nematpour’s answer as a discovery sanction.

Therefore, on remand the trial court is directed to vacate its January 2, 2018 order on Ghaffarpour’s motion for terminating sanctions, insofar as the order struck Nematpour’s answer and ordered the entry of his default. The January 9, 2018 entry of default by the clerk shall also be vacated, and Nematpour’s answer shall be reinstated. The trial court may then consider whether an alternative sanction should be imposed for Nematpour’s failure to appear for his court-ordered deposition or issue other orders to ensure Nematpour’s appearance at his deposition. (§ 2023.030, subd. (d)(2).)

Once Nematpour’s default is vacated, because the operative complaint fails to state a cause against Nematpour, on remand Nematpour shall be entitled to move for dismissal by way of a motion for judgment on the pleadings or a motion for summary judgment. Nematpour also shall be entitled to bring a motion to dismiss the action on the ground it is barred by the two-year statute (§ 335.1) or by Ghaffarpour’s failure to bring the matter to trial within five years. (§§ 583.310, 538.360.)

Our ruling also does not preclude Ghaffarpour from bringing a motion for leave to amend. We express no opinion as to Ghaffarpour’s ability to truthfully allege a cause of action against Nematpour at this juncture, as that issue is beyond the scope of this appeal.

DISPOSITION

The default judgment entered on March 22, 2018 is reversed. The matter is remanded to the trial court with directions to vacate both the January 2, 2018 order striking Nematpour’s answer and the clerk’s January 9, 2018 entry of default, to reinstate Nematpour’s answer, and to conduct further proceedings not inconsistent with this opinion. Nematpour shall recover his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J.

JONES, J.*

Filed 12/27/19 P. v. Colbert CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

DEBORAH COLBERT,

Defendant and Appellant.

B291207

(Los Angeles County

Super. Ct. No. BA456180)

APPEAL from orders of the Superior Court of Los Angeles County, Karla D. Kerlin, Judge. Affirmed.

Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Zee Rodriguez and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Following a jury conviction for vandalism, appellant Deborah Colbert was placed on probation and ordered to pay a $400 restitution fine and other court assessments. On appeal, appellant argues that her case should be remanded so the trial court can retroactively determine her eligibility for a pretrial mental health diversion program under Penal Code section 1001.36. Appellant also argues that the trial court violated her due process rights by imposing the restitution fine and court assessments without making a finding as to her ability to pay. We conclude that section 1001.36 does not retroactively apply here, where appellant’s case was “adjudicated” before the statute’s enactment. Further, we conclude appellant forfeited any challenge to the restitution fine and court assessments by not raising her inability to pay in the trial court, as statutorily required. Therefore, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning of April 5, 2017, Juan Salazar witnessed appellant repeatedly slamming a brick against Salazar’s parked vehicle. The vehicle’s windshield and window were broken, and there were dents and scratches to the body of the vehicle. The total damage to the vehicle was $4,455.

On May 4, 2017, the Los Angeles County District Attorney’s Office charged appellant with vandalism resulting in more than $400 in damage (§ 594).

On June 26, 2017, defense counsel declared a doubt regarding appellant’s competence. A forensic psychiatrist diagnosed appellant with “Unspecified Schizophrenia Spectrum and Other Psychotic Disorder with a Rule Out of Schizophrenia.” The trial court found appellant incompetent and suspended criminal proceedings. On December 18, 2017, the trial court reinstated criminal proceedings after finding that appellant had been restored to competence.

A jury convicted appellant of the charged offense on April 5, 2018.

On May 30, 2018, the trial court suspended the imposition of sentence and placed appellant on three years of probation through the Office of Diversion and Reentry. The court ordered appellant to serve 736 days in jail as a condition of probation, and awarded her a total of 736 days of presentence credit. The court also ordered that she pay $4,500 in victim restitution, a $400 restitution fine (§ 1202.4), a $30 court facilities assessment (Gov. Code, § 70373), a $40 court operations assessment (§ 1465.8), the cost of probation services, a $10 crime prevention fine, and “any other mandatory fines and fees.” Appellant was advised of her right to an ability to pay hearing.

On June 27, 2018, the Legislature enacted section 1001.36, which created a pretrial diversion program for certain defendants with mental disorders. (§ 1001.36, subd. (a).) (Stats. 2018, ch. 34, § 24.)

Appellant timely appealed the May 30, 2018 order.

DISCUSSION

I. Section 1001.36 Does Not Apply Retroactively.

Appellant contends her conviction should be conditionally reversed and the matter remanded for the trial court to determine, retroactively, whether defendant qualifies for a pretrial diversion program for defendants with qualifying mental disorders under 1001.36. Relying on In Re Estrada (1965) 63 Cal.2d 740 (Estrada) and People v. Superior Court (Lara) (2018) 4 Cal.5th 299 (Lara), appellant argues section 1001.36 should apply retroactively because it confers an ameliorative benefit to defendants whose judgments are not final on appeal. Respondent contends section 1001.36 is not retroactive, focusing on the express language of the statute which provides that pretrial mental health diversion is available “until adjudication.” Respondent argues that, whether “adjudication” is interpreted narrowly to include the adjudication of guilt at trial, or broadly to include the rendering of judgment, appellant’s claim was already “adjudicated” by the time of the statute’s enactment.

A. Section 1001.36

Effective June 27, 2018, section 1001.36 authorizes pretrial diversion in lieu of criminal prosecution for defendants with qualifying mental disorders: “ ‘[P]retrial diversion’ means the postponement of prosecution, either temporarily or permanently, at any point in the judicial process from the point at which the accused is charged until adjudication, to allow the defendant to undergo mental health treatment . . . .” (§ 1001.36, subd. (c), italics added.)

A trial court may grant pretrial diversion under section 1001.36 if the court finds: (1) the defendant suffers from an identified mental disorder; (2) the mental disorder was a significant factor in the commission of the charged offense; (3) the defendant’s symptoms will respond to treatment; (4) the defendant consents to diversion and waives his or her speedy trial rights; (5) the defendant agrees to comply with the treatment; and (6) the defendant will not pose an unreasonable risk of danger to public safety if treated in the community. (§ 1001.36, subd. (b).)

If the trial court grants pretrial diversion, the defendant will undergo mental health treatment by an approved mental health program that will provide regular reports of the defendant’s progress. Criminal proceedings may be diverted for “no longer than two years.” (§ 1001.36, subds. (c)(1)(B) & (c)(2)―(3).) If the defendant performs satisfactorily in 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” and “the arrest upon which the diversion was based shall be deemed never to have occurred.” (§ 1001.36, subd. (e).) Under certain circumstances, if the defendant commits additional crimes or performs unsatisfactorily in diversion, the court may reinstate criminal proceedings. (§ 1001.36, subd. (d).)

A stated purpose of the new law is to promote “[i]ncreased diversion of individuals with mental disorders to mitigate the individuals’ entry and reentry into the criminal justice system while protecting public safety.” (§ 1001.35.)

B. Retroactivity of Section 1001.36

Penal statutes are generally presumed to apply prospectively unless they expressly state otherwise. (§ 3.) However, under Estrada, “ ‘an amendatory statute lessening punishment is presumed to apply in all cases not yet reduced to final judgment as of the amendatory statute’s effective date.’ ” (People v. Weaver (2019) 36 Cal.App.5th 1103, 1116, review granted October 9, 2019, S257049 (Weaver).) “ ‘The Estrada rule rests on an inference that, in the absence of contrary indications, a legislative body ordinarily intends for ameliorative changes to the criminal law to extend as broadly as possible, distinguishing only as necessary between sentences that are final and sentences that are not.’ ” (Lara, supra, 4 Cal.5th at p. 308.) Lara extended retroactivity principles under Estrada to an amendment in the law that did not reduce punishment for a particular crime, but did reduce the possibility of punishment for a class of persons, namely, juveniles. (Id. at p. 308.)

The Courts of Appeal are currently divided on the question of whether section 1001.36 applies retroactively to persons who were tried, convicted, and sentenced before section 1001.36 went into effect, but as to whom judgment is not yet final. In People v. Frahs (2018) 27 Cal.App.5th 784, review granted December 27, 2018, S252220 (Frahs), the Fourth District followed the reasoning of Estrada and Lara to hold that section 1001.36 provides an “ ‘ameliorating benefit’ ” that should be applied as broadly as possible to further the legislative purpose of increasing diversion of individuals with mental disorders. (Frahs, at p. 791.) Because the defendant’s case was not yet final on appeal, the court found he was potentially eligible for section 1001.36 diversion, notwithstanding that his current criminal action had “technically been ‘adjudicated’ in the trial court.” Frahs reasoned that “[t]he fact that mental health diversion is available only up until the time that a defendant’s case is ‘adjudicated’ is simply how this particular diversion program is ordinarily designed to operate.” (Frahs, at p. 791; see also Weaver, supra, 36 Cal.App.5th at p. 1122, rev. granted; People v. Hughes (2019) 39 Cal.App.5th 886, 895, review granted November 26, 2019, S258541.)

The Fifth District disagreed with Frahs in People v. Craine (2019) 35 Cal.App.5th 744 (Craine), review granted September 11, 2019, S256671. Craine held that “section 1001.36 and its legislative history contraindicate a retroactive intent with regard to defendants, like Craine, who have been found guilty of the crimes for which they were charged.” (Id. at p. 749.) The court concluded that the statute’s reference to pretrial diversion up to the point of “adjudication” referred to the “adjudication of guilt or acquittal.” (Id. at p. 755; see also People v. Torres (2019) 39 Cal.App.5th 849, 855 (Torres) [citing Craine’s holding that “section 1001.36 was not intended to apply to defendants tried and convicted before the enactment of the statute”].) “At most, ‘adjudication’ could be synonymous with the rendition or pronouncement of judgment, which occurs at the time of sentencing.” (Craine, at p. 755.) According to Craine, the intent of the Legislature was evident from the text of the statute, which uses “preadjudicative” terms to describe its benefits, such as the “postponement of prosecution,” the dismissal of “criminal charges,” and the expungement of the “record of the arrest.” (Id. at pp. 755―757.) Thus, “pretrial diversion is literally and functionally impossible once a defendant has been tried, found guilty, and sentenced.” (Id. at p. 756.) The intent of the Legislature was confirmed by the legislative history, which envisioned diversion “ ‘at an early stage in the proceedings,’ ” with a focus on reducing the number of referrals to state hospitals based on findings of incompetency to stand trial. (Id. at pp. 758―759, citing Sen. Rules Com., Off. of Sen. Floor Analyses, Unfinished Business Analysis of Sen. Bill No. 215 (2017―2018 Reg. Sess.) as amended Aug. 23, 2018, pp. 2―3; Assem. Conc. Sen. Amends. to Assem. Bill 1810 as amended June 12, 2018, item 17, p. 7).) As Craine observed, the purpose of a pretrial diversion program is precisely to “ ‘avoid the necessity of a trial.’ ” (Craine, at p. 755.)

C. Analysis

In analyzing the retroactive application of section 1001.36, we apply the principles of statutory interpretation. “ ‘ “ ‘As in any case involving statutory interpretation, our fundamental task here is to determine the Legislature’s intent so as to effectuate the law’s purpose. [Citation.] We begin by examining the statute’s words, giving them a plain and commonsense meaning.’ ” ’ [Citation.]” (People v. Gonzalez (2017) 2 Cal.5th 1138, 1141.)

By the plain language of section 1001.36, which circumscribes the scope of its application “from the point at which the accused is charged until adjudication,” pretrial diversion is not retroactively available to appellant, whose case had already been “adjudicated” by the time of the statute’s enactment. (§ 1001.36, subd. (c), italics added.) We employ the commonsense meaning of “adjudication,” that is, the adjudication of a defendant’s guilt, whether based on a plea of guilt or trial on the merits. (See Craine, supra, 35 Cal.App.5th at pp. 755―756, rev. granted [“We agree with respondent’s position that ‘adjudication,’ which is an undefined term, is shorthand for the adjudication of guilt or acquittal.”]; People v. Clancey (2013) 56 Cal.4th 562, 570 [“ ‘ “guilt is adjudicated at trial or admitted by plea” ’ ”].) “Sentencing occurs after adjudication and section 1001.36, subdivision (c) provides that mental health diversion may be ordered at any point in the judicial process ‘until adjudication.’ ” (Torres, supra, 39 Cal.App.5th at p. 856, first italics added.) Thus, by the time appellant was sentenced to probation following a jury conviction, her case had been “adjudicated.” There is no re-adjudication of guilt by trial or plea following an order granting probation. A subsequent probation revocation does not “initiate a second criminal prosecution, nor is it intended to authorize criminal punishment because ‘the sole consequence of revocation of probation is that the offender must commence to serve a term for an offense of which he previously was properly convicted.’ ” (People v. McGavock (1999) 69 Cal.App.4th 332, 337, citing In re Coughlin (1976) 16 Cal.3d 52, 61].) Because appellant’s case had been “adjudicated” by the time of the statute’s enactment, she is precluded from the class of persons who may retroactively benefit from mental health diversion under section 1001.36.

Courts have recognized the inherent conflict in Frahs’s reasoning that “[t]he fact that mental health diversion is available only up until the time that a defendant’s case is ‘adjudicated’ is simply how this particular diversion program is ordinarily designed to operate,” not a limit on its retroactivity. (Frahs, supra, 27 Cal.App.5th at p. 791, rev. granted; see, e.g., Weaver, supra, 36 Cal.App.5th at p. 1120, rev. granted [“We recognize that application of section 1001.36 to individuals who have already been convicted but whose convictions are not yet final on appeal may appear to conflict with several aspects of the provision’s text.”].) The term “until adjudication” is “rendered surplusage” when a case is remanded to the trial court for potential diversion after the defendant has been convicted. (Weaver, at p. 1120.) To reconcile this conflict, Weaver viewed “these portions of the statute as demonstrating the Legislature’s intent that individuals who commit their crimes after the effective date of section 1001.36 and whose guilt has been adjudicated in the form of a plea of guilty or no contest or a conviction after trial are no longer eligible for pretrial diversion under the statute.” (Ibid.) By extension, individuals who committed their crimes before the statute’s effective date and whose guilt has been adjudicated would be eligible for the program. However, this interpretation concedes that “how this particular diversion program is ordinarily designed to operate” is prospectively—going forward “after the effective date of section 1001.36.” (Frahs, at p. 791; Weaver, at p. 1120.)

Further, the language of the statute describes the implementation of the diversion program prior to trial, and makes no provisions for its implementation at a later time. To be eligible for diversion, the defendant must “waive[] his or her right to a speedy trial.” (§ 1001.36, subd. (b).) The statute explains that prosecution will be postponed until adjudication, not judgment (§ 1001.36, subd. (c)), and discusses the implications of successful diversion on a defendant’s criminal charges and record of arrest, not conviction (§ 1001.36, subds. (e)―(g).) We find no indication in the language of the statute that the Legislature contemplated a retroactive application of section 1001.36 following an adjudication of guilt. Therefore, “[i]t would be impertinent for this court to place a strained interpretation upon a statute merely to bring about a result which, in the enactment of that statute, was neither contemplated nor intended.” (People v. Borja (1980) 110 Cal.App.3d 378, 382.) Under the unambiguous terms of section 1001.36, appellant’s request for posttrial diversion is simply not authorized.

We find the reasoning in Craine persuasive, and we therefore conclude that defendants who were tried, convicted, and sentenced to probation before the adoption of section 1001.36 are not eligible for pretrial mental health diversion. Although the statute reduces the possibility of punishment for a class of persons—mentally ill defendants whose cases have not been “adjudicated”—the plain language of the statute and our understanding of the Legislature’s intent compel our conclusion that appellant is not a member of this intended class.

II. Appellant has forfeited any challenge to the restitution fine and court assessments.

Appellant challenges the imposition of the $400 restitution fine and court assessments on due process grounds. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), appellant urges us to stay execution of the restitution fine and vacate the court assessments because appellant is allegedly indigent and the trial court failed to consider whether she had the ability to pay. We disagree because the issue was forfeited.

Section 1202.4, subdivision (d) allows a court to consider a defendant’s inability to pay a restitution fine if the fine is more than the minimum fine of $300. (§ 1202.4, subd. (d); People v. Avila (2009) 46 Cal.4th 680, 729 (Avila).) The statute provides that a defendant who is unable to pay more than the minimum fine must raise a challenge in the trial court: “A defendant shall bear the burden of demonstrating his or her inability to pay.” (§ 1202.4, subd. (d).) Thus, to preserve the issue on appeal, appellant was obligated to object to the amount of the fine and demonstrate her inability to pay anything more than the $300 minimum in the trial court. (See Avila, supra, at p. 729.)

Dueñas is distinguishable because the court imposed the minimum restitution fine under section 1202.4, subdivision (b), and the defendant clearly advised the court of her inability to pay. (Dueñas, supra, 30 Cal.App.5th at pp. 1162, 1169.) Here, the trial court did not impose the minimum restitution fine, and appellant did not object to the fine and assessments or indicate an inability to pay, as statutorily required, even after the trial court advised appellant of her right to an ability-to-pay hearing.

Appellant concedes her trial counsel failed to object to the fine and assessments, but argues there was no forfeiture because: (1) she presents a pure question of law based on undisputed facts that can be raised for the first time on appeal; and (2) it would have been futile to object before the trial court. We are not persuaded. By claiming indigence, appellant requests a factual determination of her inability to pay based on facts respondent disputes and which the record does not conclusively establish. Further, an objection based on her inability to pay would not have been futile, especially in light of the court’s advisement and under governing law which clearly contemplates such an objection. (§ 1202.4, subd. (d); see also Avila, supra, 46 Cal.4th at p. 729.) Having failed to object in the trial court based on her inability to pay, appellant has forfeited this issue as to the restitution fine and court assessments. (See People v. Scott (1994) 9 Cal.4th 331, 353.)

DISPOSITION

The orders of the trial court are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, P. J.

We concur:

LAVIN, J. DHANIDINA, J.

Filed 12/27/19 P. v. Sun CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

DAVID SUN,

Defendant and Appellant.

B291763

(Los Angeles County

Super. Ct. No. VA143663)

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert J. Higa, Judge. Affirmed with directions.

Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Scott A. Taryle and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.

——————————

A jury found David Sun guilty of offenses arising out of his sexual abuse of his daughter. On appeal, Sun contends that the trial court improperly admitted a detective’s testimony about the victim’s credibility, his guilt, and profile evidence. He also raises instructional and sentencing errors. We conclude that remand for resentencing is necessary but reject Sun’s other contentions.

BACKGROUND

I. The sexual abuse

The victim lived with her mother but visited her father, Sun, on Wednesdays and slept over on the occasional Friday night. Sun also watched the victim when mother was busy. The victim testified that Sun first touched her inappropriately when she was six years old. He put his penis, which she called his “thing,” in her “butt” and vagina. After, Sun wiped himself with a sock. This happened whenever she went to Sun’s home. Sometimes, he put his penis in her mouth. Once, he put his penis in her vagina after showering with her.

The victim was at Sun’s house on December 27, 2016. She was then eight years old. When mother picked her up, the victim told mother that Sun had been molesting her. Mother immediately reported the abuse. The next day, the victim had a forensic examination which resulted in no findings. The victim’s hymen was intact and no semen or saliva was detected on her body.

II. The investigation

Detective Maricruz Perez testified as both the investigating officer and as an expert. For over 11 years, she has worked for the Los Angeles County Sheriff’s Department’s special victim’s bureau, which handles sexual abuse of minors. According to the detective, sexual abuse victims commonly delay reporting the abuse for various reasons: fear, they are being threatened, the abuser is the family’s sole provider, or they do not understand that what is happening is wrong. Commonly, the abuser is an immediate family member. In the cases the detective has handled, it has been more common to have no forensic findings.

When the detective begins investigating a case, she reads the reports, reviews medical examinations, and checks the alleged perpetrator’s criminal background. It is common that the alleged perpetrator has never committed a crime. Not often has the alleged perpetrator previously been convicted of a similar offense.

Detective Perez separately questioned the victim and Sun. The detective asked the victim a series of questions to determine if she could tell the difference between the truth and a lie. Based on the victim’s answers, the detective felt that the victim knew the difference. The victim’s level of detail about what occurred, which included using her hands to demonstrate the touching, was unexpected for an eight year old. Based on everything the detective discussed with the victim, the detective concluded that sexual conduct had occurred between the victim and Sun.

The detective next interviewed Sun twice. When Detective Perez first asked Sun about the victim’s allegations, he denied them. Using a ruse, she told him that his semen was found on the victim’s body. He explained that he had masturbated into a sock and given it to the victim to wipe herself after she urinated. Based on this, the detective got a “gut feeling” that if she questioned him again, then “maybe he would be truthful.” The second time the detective questioned Sun, he said that his daughter initiated the sexual contact. According to him, the victim touched his penis when they showered together. Once or twice he masturbated in front of her. And, once or twice a month the victim would rub her vagina against his penis. The last time he babysat the victim, he took off their underwear, and she put Sun’s penis between her legs and moved back and forth. Sun ejaculated on a sock, and she wiped herself with the same sock. He denied fully penetrating the victim. He admitted that the victim kissed his penis.

At trial, Sun recanted his confession.

III. Verdict and sentence

The jury found Sun guilty of five counts of sexual intercourse or sodomy with a victim 10 years or younger (Pen. Code, § 288.7, subd. (a); counts 1, 2, 3, 4 & 5) and two counts of oral copulation or sexual penetration with a victim 10 years or younger (id., subd. (b); counts 6 & 7). On August 1, 2018, the trial court imposed consecutive 25-year-to-life terms on counts 1 to 5 and consecutive 15-year-to-life terms on counts 6 and 7.

DISCUSSION

I. Admissibility of Detective Perez’s testimony

Sun contends that Detective Perez improperly opined on the victim’s credibility and on Sun’s guilt and offered profile evidence, in violation of state law and Sun’s federal constitutional due process rights. We disagree that any prejudicial error occurred.

Sun first argues that the detective improperly opined on the victim’s credibility. While an expert may give opinion testimony if the subject matter of the testimony is sufficiently beyond common experience such that the opinion would assist the trier of fact (Evid. Code, §§ 720, 801; People v. Vang (2011) 52 Cal.4th 1038, 1044), an expert may not opine that a witness is telling the truth, as this is an issue for the trier of fact (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82). Thus, police officers’ opinions on a victim’s truthfulness during limited contacts with the victim do not have a reasonable tendency to prove or disprove the victim’s credibility and are therefore not relevant. (People v. Sergill (1982) 138 Cal.App.3d 34, 40; People v. Julian (2019) 34 Cal.App.5th 878, 888–890.)

Detective Perez, however, did not comment on the victim’s credibility. The detective asked the victim a series of questions; for example, if the detective said she had a baby on her lap when she did not, would that be a lie or the truth? As the victim answered it would be a lie, the detective testified that the victim knew the difference between a lie and the truth. This, however, is not the same as testifying that the victim was telling the truth. That the victim knew the difference between a lie and the truth did not mean that the victim was telling the truth.

Nor did the detective otherwise opine on the victim’s credibility. The detective said that the victim knew about sex acts a victim of her age generally does not know. That was appropriate expert opinion, as the detective had worked extensively with child sexual abuse victims. Similarly, the detective’s statement that she discovered nothing during her investigation to contradict the victim’s allegations was merely a comment on the investigation. That it may have buttressed the victim’s credibility does not render the detective’s testimony improper commentary on credibility. Evidence that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact. (Evid. Code, § 805.)

Although the detective did not improperly opine on the victim’s credibility, some of her other testimony was arguably objectionable. The detective testified that, based on her interview with the victim, sexual conduct had occurred when the victim was six, seven, and eight years old with father. After her first interrogation of Sun, the detective got a “gut feeling” that if she interviewed him again, “maybe he would be truthful.” To the extent this evidence commented on Sun’s guilt, it was inadmissible. (See People v. Vang, supra, 52 Cal.4th at p. 1048.)

Further, the detective’s testimony about common characteristics of sexual abusers was improper profile evidence. “A profile is a collection of conduct and characteristics commonly displayed by those who commit a certain crime.” (People v. Robbie (2001) 92 Cal.App.4th 1075, 1084.) A profile expert compares the defendant’s behavior to the pattern or profile and concludes the defendant fits the profile. (People v. Prince (2007) 40 Cal.4th 1179, 1226.) Profile evidence is generally inadmissible to prove guilt because it is inherently prejudicial. (Robbie, at pp. 1084–1085.) It lacks sufficient probative value when the conduct fitting the profile is as consistent with innocence as with guilt. (People v. Smith (2005) 35 Cal.4th 334, 358.) Profile evidence, however, is distinguishable from evidence offered to address a misleading stereotype, for example, that a typical molester is an old man luring children in playgrounds with candy. (People v. McAlpin (1991) 53 Cal.3d 1289, 1302–1303.)

Here, Detective Perez testified that sexual abuse is commonly committed by the victim’s immediate family and by someone having no prior criminal conviction. Because Sun was the victim’s father and there was no evidence he had a criminal record, this testimony, he contends, was improper profile evidence. Even if this was improper profile evidence and, as such, inadmissible, reversal would not be required unless the error caused a miscarriage of justice under the standard in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Richardson (2008) 43 Cal.4th 959, 1001.) A miscarriage of justice occurs when, after examining the entire cause, including the evidence, it is reasonably probable a result more favorable to the appealing party would have been reached absent the error. (Watson, at p. 836.)

We cannot find such a reasonable probability here, even in the absence of the profile evidence and the detective’s statements alluding to Sun’s guilt. Rather, the victim told Detective Perez in detail what her father did to her. Other evidence corroborated her testimony, notably, Sun’s own confession. The victim, for example, said Sun had touched her in the shower. Mother testified, verifying she told Sun not to shower with the victim. Sun told the detective that the touching between him and the victim began in the shower. The victim also mentioned an unusual detail, that Sun wiped himself with a sock. Notably, Sun corroborated this testimony by saying he ejaculated on a sock. Sun mentioned the sock without the detective first mentioning it. Also, Sun denied fully penetrating the victim, which was consistent with the physical findings. Finally, consistent with the victim’s statement, Sun said that he had last molested his daughter on the day she told her mother about the abuse. Given that Sun corroborated details of the victim’s story, and notwithstanding his recantation at trial, it is not reasonably probable a different result would have occurred in the absence of the challenged evidence.

Nor does any error render the trial arbitrary or fundamentally unfair such that Sun’s due process rights were violated. (See People v. Partida (2005) 37 Cal.4th 428, 439.) As we have said, some of the complained-of evidence was admissible. Sun also had the opportunity to respond to the evidence, denying that the abuse happened and explaining that he gave a false confession out of fear and duress.

As we have found no prejudicial error, we need not reach whether defense counsel’s failure to object to the evidence constituted ineffective assistance. (See generally Strickland v. Washington (1984) 466 U.S. 668, 690; People v. Brown (2014) 59 Cal.4th 86, 109.)

II. Instructional error

Because Detective Perez testified it is common for sexual abuse victims to delay reporting the abuse, Sun now contends that the trial court should have sua sponte instructed the jury with CALCRIM No. 1193, which is about child sexual abuse accommodation syndrome (CSAAS). CSAAS concerns common reactions to child molestation: secrecy, helplessness, accommodation, disclosure, and recantation. (People v. Mateo (2016) 243 Cal.App.4th 1063, 1069.) CALCRIM No. 1193 instructs that such evidence is admissible for the limited purpose of showing that the complaining witness’s conduct is consistent with someone who has been abused but is not admissible to show that the defendant committed the charged offenses. (See People v. McAlpin, supra, 53 Cal.3d at pp. 1300–1301.)

Detective Perez did not offer complete testimony on CSAAS testimony. She testified about only one CSAAS component, delay in reporting. And, she discussed this component in the limited context of her experience investigating cases of sexual abuse of minors. She did not opine that the victim’s behavior was typical of an abuse victim. This is closely related to the ultimate issue of whether abuse actually occurred and in which case at least one court of appeal has found a sua sponte obligation to give a limiting instruction. (People v. Housley (1992) 6 Cal.App.4th 947, 958.) However, another court of appeal has held that there is no sua sponte duty to give a limiting instruction. (People v. Mateo, supra, 243 Cal.App.4th at pp. 1073–1074.)

Given that Detective Perez did not testify about CSAAS and that the prosecutor did not rely on any such evidence in argument, we find that the general limiting instruction on expert witness testimony, CALCRIM No. 332, was sufficient. Per that instruction, the jury was told: “A witness was allowed to testify as an expert and to give an opinion. You must consider the opinion, but you are not required to accept it as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether information on which the expert relied was true and accurate. [¶] You may disregard any opinion that you find unbelievable, unreasonable, or unsupported by the evidence.” Nothing more than this instruction was required.

III. Instruction on lesser included offense

Sun contends that the trial court should have instructed the jury on battery as a lesser included offense to the charged crimes. However, a trial court, even in the absence of a request, must instruct on all general principles of law relevant to the issues raised only by the evidence. Instruction on a lesser included offense is required when there is evidence the defendant is guilty of the lesser offense but not of the greater. (People v. Banks (2014) 59 Cal.4th 1113, 1159–1160.) Substantial evidence is evidence a reasonable jury could find persuasive. (People v. Benavides (2005) 35 Cal.4th 69, 102.) We independently review whether the trial court erred by failing to instruct on a lesser included offense. (Banks, at p. 1160.)

We need not determine whether battery is a lesser included offense of sexual intercourse or sodomy with a child and of oral copulation or sexual penetration with a child. There is no substantial evidence that Sun committed a battery but not the charged offenses. Battery is any willful and unlawful use of force or violence on another. (§ 242.) Section 288.7, subdivision (a), provides, in relevant part, that any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony. Section 288.7, subdivision (b), similarly proscribes oral copulation or sexual penetration with a child.

Here, the victim testified that Sun repeatedly penetrated her vaginally and anally and put his penis in her mouth. These acts happened every time she saw him, over the course of about two years. Sun, however, makes much of the victim’s isolated statement that once he put his penis “on” her “booty” and of his confession denying he ever actually penetrated the victim. This is not a complete portrait of the evidence. When the victim told the detective that Sun put his penis on her, she also “placed her hand in between her leg near her vaginal area” and “moved her hand back and forth.” The victim described a similar incident in which she simply said her father’s penis went inside but not that “far.” Again, the victim used her hands to demonstrate how her father moved, which suggested penetration. Although in his confession Sun tried to minimize his sexual contact with the victim, he nonetheless described how she rubbed against his penis and how it went between the victim’s vaginal lips. He also admitted that this happened once or twice a month. Based on this, the evidence was not that Sun simply put his penis randomly “on” the victim’s body; he repeatedly penetrated her within the legal meaning of that term. That is, sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. (§ 263; People v. Quintana (2001) 89 Cal.App.4th 1362, 1371.) Hence, Sun cannot have committed battery without also having committed the greater offenses.

IV. Cumulative error

Having identified only one instance of harmless error, we reject Sun’s claim of cumulative error. (See People v. Vieira (2005) 35 Cal.4th 264, 305.)

V. Consecutive sentences

Believing it had to do so, the trial court imposed consecutive sentences on the section 288.7, subdivision (a) counts 1 to 5. However, consecutive sentencing was not mandatory. (§ 667.6, subds. (d), (e).) The People concede that remand is necessary, as the trial court misapprehended the nature of its sentencing discretion. Because we remand for resentencing, we need not reach whether Sun is also entitled to remand for an ability to pay hearing under People v. Dueñas (2019) 30 Cal.App.5th 1157.

DISPOSITION

The sentence is vacated and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

EDMON, P. J.

LAVIN, J.

Filed 12/31/19 P. v. Smith CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

SYLVIA MERCEDES SMITH,

Defendant and Appellant.

E071671

(Super.Ct.No. FSB18000216)

OPINION

APPEAL from the Superior Court of San Bernardino County. Steve Malone, Judge. Affirmed in part; reversed in part.

Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant and appellant, Sylvia Mercedes Smith, was tried by a jury and convicted of being an accessory after the fact to murder. (Pen. Code, § 32.) Defendant was sentenced to 16 months in state prison and ordered to pay, jointly and severally with her codefendant, $2,974.58 in victim restitution for burial costs. Defendant appealed.

On appeal, defendant argues that the court erred by ordering defendant to pay victim restitution for burial costs because she was an accessory after the fact and so the costs do not arise from the crime for which she was convicted. The People agree that this was in error. We agree with the parties and vacate the order ordering defendant to pay burial costs.

II. FACTUAL AND PROCEDURAL BACKGROUND

At the time of his murder, Anthony Hernandez was dating James Baltierra’s mother, Jackie R. On the evening of January 5, 2018, an employee of a liquor store that was on break observed Jackie R. and Hernandez walking across the parking lot of the liquor store and arguing. Eventually, Jackie R. began hitting Hernandez with what appeared to be a rolled up newspaper.

Defendant then pulled into the parking lot driving a white Dodge Charger with Baltierra in the passenger seat. Baltierra got out of the car and approached Hernandez, at the same time asking him, “‘[w]hat the fuck are you doing?’” Baltierra then hit Hernandez several times, and Hernandez fought back. Hernandez began to get the upper hand in their fight, at which point Baltierra pulled a gun from his waistband and shot Hernandez once. Baltierra then got back in the Dodge Charger, and he and defendant drove away. Hernandez died from a .45-caliber gunshot wound to his chest.

Defendant owned the Dodge Charger. The Dodge Charger contained a Global Positioning System that could also indicate when the car’s ignition was turned on and off. These records showed that the car was turned on near defendant’s residence shortly before the shooting and turned off near her residence shortly after the shooting. The next day, the records showed the car was in Arizona, where it remained for five days.

The District Attorney of San Bernardino County charged defendant and codefendant by information. Baltierra was charged with murder. (§ 187, subd. (a).) Defendant was charged with being an accessory after the fact to murder. (§ 32.) On September 27, 2018, a jury found defendant and Baltierra guilty.

Prior to sentencing, the probation report recommended that defendant be ordered to pay victim restitution for the costs of Hernandez’s burial. Defense counsel objected to this recommendation, arguing there was no nexus between being an accessory after the fact and Hernandez’s burial costs. The court imposed the requested restitution order over this objection, ordering that defendant and Baltierra be jointly and severally liable for $2,974.58 in victim restitution.

The court sentenced defendant to the low term of 16 months in state prison. Defendant received 588 days in presentence custody credits, which satisfied her sentence. She had already been released from custody prior to sentencing and remained out of custody after sentencing.

Defendant timely appealed.

III. DISCUSSION

Defendant argues that the trial court erred by ordering defendant to pay $2,974.58 in victim restitution for the costs of Hernandez’s burial. The People agree with defendant. We agree with the parties and reverse the restitution order as to defendant.

“We review the trial court’s restitution order for abuse of discretion. [Citation.] A restitution order that is based on a demonstrable error of law constitutes an abuse of the trial court’s discretion.” (People v. Woods (2008) 161 Cal.App.4th 1045, 1048-1049.)

Section 1202.4 states “that a victim of crime who incurs an economic loss as a result of the commission of a crime shall receive restitution directly from a defendant convicted of that crime.” Specifically, “in every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order, based on the amount of loss claimed by the victim or victims or any other showing to the court.” (§ 1202.4, subd. (f).)

Section 1202.4 has been interpreted as limiting restitution awards for economic loss to losses “resulting from the criminal conduct supporting the crimes of which the defendant was convicted.” (People v. Lai (2006) 138 Cal.App.4th 1227, 1247.) Therefore, the question before this court is whether a murder victim’s burial costs are an economic loss resulting from defendant’s criminal conduct as an accessory after the fact to that murder.

Woods directly answers that question. There, as here, “[d]efendant claim[ed] that he may not lawfully be ordered to pay victim restitution for economic losses stemming from the murder because he was not convicted of murder, but only of being an accessory after the fact.” (People v. Woods, supra, 161 Cal.App.4th at p. 1049.) The court observed that “a charge of being an accessory after the fact is ‘based on conduct taking place only after the loss was sustained.’” (Id. at p. 1052.) The court concluded that economic loss in the form of burial costs “occurred because of the murder,” and that “[d]efendant was not convicted as a coconspirator or as an aider or abettor to the murder itself. Thus his criminal conduct did not cause the loss for which compensation was sought.” (Ibid.) Accordingly, the court reversed the order requiring the defendant in Woods to pay the claimed burial costs as victim restitution. (Id. at p. 1054.)

The same rule applies here. Defendant’s criminal actions did not result in Hernandez’s death, and therefore defendant is not responsible to pay victim restitution for the economic losses resulting from that death (namely, the burial costs). Moreover, because her codefendant, Baltierra, has already been convicted of the murder which did result in this loss, and because he is already jointly and severally liable for the resulting burial costs, Hernandez’s family will be able to obtain the restitution to which they are entitled from Baltierra.

IV. DISPOSITION

The order requiring defendant to pay $2,974.58 in victim restitution is reversed. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

We concur:

SLOUGH

Acting P. J.

MENETREZ

Filed 12/31/19 P. v. Mixon-Givens CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

DOMINIC JORRELL MIXON-GIVENS,

Defendant and Appellant.

H044705

(Santa Clara County

Super. Ct. No. B1580607 )
A jury found defendant Dominic Mixon-Givens guilty of human trafficking among other offenses. On appeal, defendant challenges the constitutionality of the human trafficking statute under which he was convicted and raises claims of sentencing error. While we reject defendant’s constitutional challenges to his human trafficking conviction, we agree that remand for resentencing is required.

I. BACKGROUND

A. Factual Summary

1. The Relationship Between Defendant and the Victim

Kristina L. ran away from home at the age of 14. In Reno, she met an older man who encouraged her to engage in prostitution; she did and that man became her first pimp. Over the next approximately 15 years, she engaged in prostitution on and off for multiple pimps. At one point, she stopped engaging in prostitution for a six-year stretch before returning to it.

Kristina first met defendant in 2012 through her then boyfriend. In 2015, Kristina was planning to drive from Reno to Berkeley. Defendant asked for a ride and she agreed. They rented a room in California together and discussed making some money. A couple of days after their arrival, Kristina began engaging in acts of prostitution with defendant acting as her pimp. Shortly thereafter, Kristina and defendant began a sexual relationship.

Kristina testified that she gave all the money she earned from prostitution to defendant. As a result, she had no money of her own and relied on him to buy everything from food to clothing. Defendant advertised Kristina’s prostitution services on-line and arranged dates with johns without consulting her, only telling her about them as the john was on his way. Defendant sometimes negotiated prices for Kristina’s dates. Defendant and Kristina traveled to different cities in the Bay Area for Kristina to engage in prostitution. Defendant largely determined where they would travel. For example, Kristina wanted to return to Reno but defendant wanted to stay in the Bay Area, so they stayed. A couple of times defendant told Kristina to walk the streets to look for customers. Kristina testified that sometimes defendant forced her to engage in acts of prostitution by calling johns to the room without her knowledge.

Defendant was physically abusive toward Kristina on a weekly basis. At trial, Kristina recounted some of the occasions on which defendant assaulted her. Once, defendant saw messages on Kristina’s phone to “somebody that [she] wasn’t supposed to be talking to”—an ex-boyfriend. Defendant reacted by barricading the door with furniture and then hitting Kristina on the back with his belt more than 10 times. Another time, defendant hit Kristina in the head and dragged her by her hair because he mistakenly believed she was communicating with another man online. On another occasion, defendant hit Kristina because he “thought [she] was with somebody [she] wasn’t supposed to be with.”

Defendant threatened to burn down Kristina’s grandmother’s house if Kristina left. He preferred to have his family members care for Kristina’s children while she was working, rather than Kristina’s family members. Kristina believed that was his preference because she could not easily leave if her children were with his family. Kristina testified that she feared for her safety and the safety of her family.

Despite that fear, Kristina did attempt to get away from defendant a couple of times. Once, while defendant was in jail, she planned to take a bus back to Reno. However, she missed the last bus before defendant was released. She testified that after he was out of custody she could not leave. Kristina’s other attempt to leave failed because defendant had her daughter.

2. The Initial Investigation

Sunnyvale Police Detective Matthew Hutchison arranged a date with Kristina as part of an unrelated investigation. He met her at a hotel where he arrested her and defendant in connection with that unrelated investigation. Inside the hotel room, Detective Hutchison found items consistent with prostitution, including condoms, lubricants, lingerie, and multiple cellphones.

Hutchison and another detective interviewed Kristina on July 1, 2015, while she was in custody. She was extremely reluctant to talk about defendant, with whom she said she had a boyfriend-girlfriend relationship. Both detectives inferred that Kristina’s reluctance was attributable to fear of defendant. Hutchison stayed in contact with Kristina after she was released from custody. She told him that “saying anything bad against [defendant] would get her in a lot of trouble.” She expressed fear for herself and her family.

Investigators discovered prostitution- and pimping-related posts on defendant’s Instagram and Facebook accounts. They also learned that defendant’s cell phone number was associated with advertisements on prostitution websites. Some of those advertisements featured pictures of Kristina.

3. The July 24, 2015 Incident

On July 24, 2015, Kristina and her daughter accompanied defendant to a court appearance in Palo Alto. During defendant’s court appearance, Kristina attempted to escape with her daughter. They ended up in the probation office where a probation officer told Kristina about a women’s shelter. That probation officer, who testified that Kristina appeared to be nervous and frightened, walked Kristina and her daughter out of the courthouse, intending to purchase food and diapers for the child and to get them public transportation to the shelter. They encountered defendant on the way. He ran toward them, yelling “What did you say bitch? What did you tell them?” Defendant punched and kicked Kristina, who ended up on the ground. The probation officer asked people in the area to help and to call 911. Defendant said, “Don’t call the police, bitch.” Defendant fled when police sirens became audible.

Subsequently, defendant was arrested. After his arrest, Kristina stopped working as a prostitute. She explained that it was easier to leave defendant after he had been taken into custody because she was able to “get away.”

4. Kristina’s Fear of Testifying

Kristina testified that she was afraid to testify. That fear was due in part to the fact the defendant’s friends and family had attempted to contact her in the weeks leading up to trial. She feared that those people might hurt her or her child. Kristina testified that defendant told her not to come to court.

5. Expert Testimony

a. Dr. Kimberly Mehlman-Orozco

Kimberly Mehlman-Orozco, Ph.D, a criminologist focusing on human trafficking, testified for the prosecution as an expert on human trafficking, including methods of control and responses by victims. Dr. Mehlman-Orozco testified that there frequently exists “a very intense emotional relationship” between human traffickers and their victims. The relationship may be a romantic one in which the victim believes she is in love with her exploiter. That relationship allows the human trafficker to control the victim and to avoid detection and conviction.

Dr. Mehlman-Orozco acknowledged on cross-examination that it can be difficult to distinguish between consenting prostitutes and sex trafficking victims.

b. Robert Royce

Robert Royce, a private investigator and former police officer, testified for the defense as an expert on human trafficking, pimping, pandering, and the investigation of those offenses. Royce distinguished between pimp-prostitute relationships and human trafficker-victim relationships. He opined that prostitutes have “many freedoms” including the freedom to choose their pimp. He opined that, by contrast, human traffickers seek to control and isolate their victims, who have no choice but to do as they are told.

B. Procedural History

On August 22, 2016, the Santa Clara County District Attorney filed an eight-count first amended information against defendant. It charged him with pimping (Pen. Code, § 266h, subd. (a); count 1) ; procuring an adult for prostitution (§ 266i, subd. (a)(1); count 2); human trafficking (§ 236.1, subd. (b); count 3); inflicting corporal injury on someone with whom the offender has a dating relationship (§ 273.5, subd. (a); count 4); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 5); attempting to dissuade a witness from reporting a crime (§ 136.1, subd. (b)(1); count 6); attempting to dissuade a witness from prosecuting a crime (§ 136.1, subd. (b)(2); count 7); and misdemeanor battery (§ 242-243, subd. (a); count 8). The first amended information alleged that defendant had previously been convicted of residential burglary in Nevada, which prior conviction allegedly constituted a strike (§§ 667, subds. (b)-(i), 1170.12) and a serious felony (§ 667, subd. (a)). Finally, the first amended information alleged that defendant had been released on bail during the commission of counts 4, 5, and 6. (§ 12022.1.)

The case proceeded to trial in August 2016. After deliberating for less than one day, the jury returned guilty verdicts on all counts.

A court trial on the prior conviction and out-on-bail allegations took place on September 7, 2016. With respect to the out-on-bail allegation, the trial court took judicial notice of a minute order showing that defendant had been released on supervised release in another case on July 2, 2015. As to the prior conviction, the court admitted into evidence certified copies of the information, the guilty plea, and the judgment in the Nevada case. The court found true that defendant had been convicted of residential burglary in violation of NRS 205.060(1)(4) and found that that offense qualified as both a prior strike and a prior serious felony. The court also found true the section 12022.1 out on-bail enhancement.

The trial court initially sentenced defendant on April 14, 2017. The court resentenced defendant on April 21, 2017 after the Probation Department pointed out an error in one of the sentencing triads the court had employed. At resentencing, the court imposed an aggregate prison term of 41 years. The court stated (and the abstract of judgment indicates) that the court imposed the midterm of 14 years on count 3, doubled to 28 years by the prior strike; the midterm of four years on count 1, doubled to eight years by the prior strike and stayed pursuant to section 654; the midterm of four years on count 2, doubled to eight years by the prior strike and stayed pursuant to section 654; a consecutive two years on count 4 (the midterm of one year doubled by the prior strike); a consecutive two years on count 5 (the midterm of one year doubled by the prior strike); a concurrent four years on count 6 (the midterm of two years doubled by the prior strike); a consecutive four years on count 7 (the midterm of two years doubled by the prior strike); and a consecutive five-year enhancement for the prior serious felony conviction. The court struck the additional punishment associated with the section 12022.1 on-bail enhancement pursuant to section 1385.

This timely appeal followed.

II. DISCUSSION

A. The Human Trafficking Statute is not Unconstitutionally Vague on its Face

Defendant maintains that the human trafficking statute under which he was convicted is unconstitutionally vague on its face. Specifically, he argues that the term “personal liberty,” as used in section 236.1, subdivisions (b) and (h)(3), is susceptible of multiple interpretations.

1. The Human Trafficking Statute

“Under California law, the crime of human trafficking [comprises] three distinct offenses, which are codified in section 236.1: (1) the deprivation or violation of the personal liberty of another with the intent to obtain forced labor or services (§ 236.1, subd. (a)); (2) the deprivation or violation of the personal liberty of another with the intent to violate one of several specified Penal Code provisions (§ 236.1, subd. (b)); and (3) causing or attempting to cause a person who is a minor to engage in a commercial sex act with the intent to violate one of several specified Penal Code provisions (§ 236.1, subd. (c)).” (People v. Shields (2018) 23 Cal.App.5th 1242, 1248-1249 (Shields).) The second listed offense is at issue here.

Section 236.1, subdivision (b) provides that “[a] person who deprives or violates the personal liberty of another” with the intent to effect or maintain a violation of various statutes that include pimping and pandering is guilty of human trafficking. (§ 236.1, subd. (b), italics added.) Section 236.1, subdivision (h) defines the phrase “[d]eprivation or violation of the personal liberty of another” as including “substantial and sustained restriction of another’s liberty accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or threat of unlawful injury to the victim or to another person, under circumstances where the person receiving or apprehending the threat reasonably believes that it is likely that the person making the threat would carry it out.” (§ 236.1, subd. (h)(3), italics added.)

Both of the foregoing provisions appeared in the human trafficking statute when the Legislature first enacted it in 2005. (Stats. 2005, ch. 240, § 7.) Punishment for the offense was increased significantly by Proposition 35, the Californians Against Sexual Exploitation Act (the CASE Act), which voters approved in November 2012. (Shields, supra, 23 Cal.App.5th at p. 1249; In re Aarica S. (2014) 223 Cal.App.4th 1480, 1486.)

2. Standard of Review and Governing Legal Principles

“We review de novo questions of interpretation and constitutionality of a statute.” (Finberg v. Manset (2014) 223 Cal.App.4th 529, 532.)

A challenge to the constitutionality of a statute on vagueness grounds is premised on the due process concept of fair warning. (People v. Hall (2017) 2 Cal.5th 494, 500.) To withstand such a void-for-vagueness challenge, a criminal statute must be sufficiently definite to inform people as to what conduct is prohibited and to provide standards for those enforcing the law (e.g., police, prosecutors, judges and juries). (People v. Morgan (2007) 42 Cal.4th 593, 605; Pryor v. Municipal Court (1979) 25 Cal.3d 238, 252 [“vague statutory language also creates the danger that police, prosecutors, judges and juries will lack sufficient standards to reach their decisions, thus opening the door to arbitrary or discriminatory enforcement of the law”].) “A statute is not vague if . . . any reasonable and practical construction can be given to its language. Reasonable certainty is all that is required.” (People v. Townsend (1998) 62 Cal.App.4th 1390, 1401 (Townsend).)

We apply principles of statutory construction to determine whether reasonable and practical construction can be given to the phrase “personal liberty.” In construing a statute, our fundamental task is to determine the Legislature’s intent so as to effectuate the law’s purpose. (People v. Cornett (2012) 53 Cal.4th 1261, 1265.) “ ‘We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context . . . .’ The plain meaning controls if there is no ambiguity in the statutory language. [Citation.]” (Ibid.) “A statutory provision is ambiguous if it is susceptible of two reasonable interpretations.” (People v. Dieck (2009) 46 Cal.4th 934, 940.)

“ ‘A statute may contain a serious ambiguity; this will not in itself make the statute vague. New statutes, criminal as well as civil, frequently contain ambiguities. If that alone made them unconstitutionally vague, it would be difficult to enact new statutes. The objection to vague statutes is that they invite arbitrary and discriminatory enforcement by those who administer the statute. A statute that contains one or several ambiguities that can be dispelled at a stroke by interpretation is not open to that objection and therefore is not vague in the constitutional sense.’ [Citation.]” (Townsend, supra, 62 Cal.App.4th at pp. 1401.)

Statutory ambiguity may be resolved by application of established rules of statutory construction. Among those is the longstanding rule that “where the legislature uses terms already judicially construed, ‘the presumption is almost irresistible that it used them in the precise and technical sense which had been placed upon them by the courts.’ ” (City of Long Beach v. Marshall (1938) 11 Cal.2d 609, 620; People v. Hurtado (2002) 28 Cal.4th 1179, 1188 [same].)

3. Analysis

The phrase “personal liberty” is used in the false imprisonment statute (§ 236), which appears in Chapter 8 of Title 8 of Part 1 of the Penal Code along with the human trafficking statute. Specifically, section 236 defines false imprisonment as “the unlawful violation of the personal liberty of another.” In that context, “personal liberty” has been judicially construed to mean “free[dom] from physical restraint” or “freedom of movement.” (People v. Bamba (1997) 58 Cal.App.4th 1113, 1121, italics omitted.) As noted above, a strong presumption arises that when the legislature enacted section 236.1 in 2005 it intended for the words “personal liberty” to have the meaning ascribed to those same words by the Bamba court eight years earlier. Defendant offers nothing to rebut that presumption. To the contrary, he asserts that “a reasonable interpretation [of section 236.1] would be to harmonize [it] with . . . section 236 . . . .”

Accordingly, we construe the phrase “personal liberty” in section 236.1 as referring to freedom of movement or freedom from physical restraint. It follows that “[d]eprivation or violation of the personal liberty of another” includes the “substantial and sustained restriction of another’s” freedom of movement or freedom from physical restraint liberty “accomplished through force, fear, fraud, deceit, coercion, violence, duress, menace, or [credible] threat of unlawful injury to the victim or to another person . . . .” (§ 236.1, subd. (h)(3).)

Defendant says section 236.1, subdivision (b) does not “define[] conduct so different from the pimping statute” to justify the increased penalties for human trafficking as compared to pimping. But as defendant himself acknowledges, “[c]learly, the difference between the two [offenses] is the violation of liberty.” And we have concluded that section 236.1, subdivision (b) is susceptible of a reasonable and clear construction. Thus, the similarities between the offenses of human trafficking and pimping do not render either statute unconstitutional. (See United States v. Batchelder (1979) 442 U.S. 114, 123 [“So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied”]; People v. Brown (2017) 14 Cal.App.5th 320, 337-340 [rejecting argument that § 236.1, subd. (c) is unconstitutionally vague because of overlap with the offense of pandering, reasoning that “[a]lthough defendant might have been both a panderer and a trafficker, that does not mean the prosecutor was obligated to charge him with the more lenient of the two offenses, nor that either of the two statutes is vague”].)

In sum, defendant has failed to demonstrate that section 236.1 subdivisions (b) and (h)(3) are unconstitutionally vague because a reasonable and practical construction may be given to them.

B. Defendant’s Human Trafficking Conviction is Supported by Substantial Evidence

Alternatively, defendant maintains that section 236.1 is unconstitutional as applied to him because the prosecutor failed to show that he deprived Kristina of her personal liberty. While couched as an as-applied constitutional challenge, defendant’s argument is better characterized as a sufficiency of the evidence challenge to his human trafficking conviction and we address it as such.

1. Standard of Review

“ ‘When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, 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. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.’ ” (People v. Covarrubias (2016) 1 Cal.5th 838, 890.)

2. Analysis

The question before us is whether substantial evidence supports the jury’s finding that defendant’s conduct effected a “substantial and sustained restriction” of Kristina’s freedom of movement “through force, fear, fraud, deceit, coercion, violence, duress, menace, or [credible] threat of unlawful injury to the victim or to another person . . . .” (§ 236.1, subd. (h)(3).) It does.

The evidence showed that defendant physically assaulted Kristina on a weekly basis, usually in retaliation for (real or perceived) attempts by her to communicate with others without defendant’s permission. There also was evidence that defendant explicitly threatened to harm Kristina’s family if she left. Defendant exercised control over Kristina’s access to her children and over her access to money, which jurors reasonably could have inferred prevented her from escaping (i.e., exercising her freedom of movement). Kristina testified that she feared defendant. That testimony was corroborated by the testimony of officers who interviewed Kristina and observed her apparent fear of discussing defendant. When Kristina was able to physically separate herself from defendant because of his incarceration, she stopped engaging in prostitution. The jury reasonably could have inferred from the foregoing evidence that defendant prevented Kristina from leaving him, thereby effecting a substantial and sustained restriction of her freedom of movement, through fear, coercion, violence, and credible threats of unlawful injury to herself and her family members. (See People v. Guyton (2018) 20 Cal.App.5th 499, 507 [concluding that substantial evidence supported the defendant’s conviction under section 236.1, subdivision (b) where the victim was not “in chains,” but feared the defendant, who isolated her, monitored her, and made her financially reliant on him].)

In defendant’s view, the evidence showed only that Kristina chose to be a prostitute, that he was her boyfriend and pimp, and that any violence in the relationship was motivated by jealousy. Even assuming jurors reasonably could have viewed the evidence as defendant does, that does not compel reversal. (See People v. Lindberg (2008) 45 Cal.4th 1, 27 [“If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding”].)

In sum, substantial evidence supports defendant’s human trafficking conviction.

C. Adjudication of Nevada Conviction as a Serious Felony and a Strike

Defendant further argues that the trial court erred when it found that his prior Nevada burglary conviction qualified as a prior strike and a prior serious felony. We agree.

1. Legal Principles

“California’s ‘Three Strikes’ law requires criminal sentences to be increased when a defendant has been convicted of one or more prior serious or violent felonies, or ‘strikes.’ ” (People v. Saez (2015) 237 Cal.App.4th 1177, 1193.) “A qualifying strike includes ‘[a] prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison . . . if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of a particular . . . serious felony as defined in subdivision (c) of [s]ection 1192.7.’ ” (Ibid., quoting § 667, subd. (d)(2).) Among the serious felonies listed in section 1192.7, subdivision (c) is first degree burglary. (§ 1192.7, subd. (c)(18).)

“[D]eterminations about the nature of prior convictions are to be made by the court, rather than a jury, based on the record of conviction. [Citation.] . . . [T]he purpose of [this] limitation is to avoid forcing the parties to relitigate long-ago events, threatening defendants with ‘harm akin to double jeopardy and denial of speedy trial.’ [Citation.]” (People v. Gallardo (2017) 4 Cal.5th 120, 138 (Gallardo).)

Federal Constitutional principles, including the Sixth Amendment right to a jury trial, require that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum . . . be submitted to a jury, and proved beyond a reasonable doubt.” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) While that general rule does not apply to “the fact of a prior conviction” (ibid.), “[t]he jury trial right is violated when a court adds extra punishment based on factfinding that goes ‘beyond merely identifying a prior conviction’ by ‘tr[ying] to discern what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct.’ ” (Gallardo, supra, 4 Cal.5th at p. 135, quoting Descamps v. United State (2013) 570 U.S. 254 (Descamps).) Therefore, “a court considering whether to impose an increased sentence based on a prior qualifying conviction . . . [is] limited to identifying those facts that were established by virtue of the conviction itself—that is, facts the jury was necessarily required to find to render a guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.” (Gallardo, supra, at p. 136.)

2. The Nevada Burglary Conviction

Defendant was convicted of burglary in Nevada in 2009.

In Nevada, “[t]he offense of burglary requires proof that the defendant entered a building, vehicle, or other enumerated location ‘with the intent to commit grand or petit larceny, assault or battery on any person or any felony.’ ” (Servin v. State (2001) 117 Nev. 775, 789, quoting Nev. Rev. Stat. § 205.060.) It does not require proof of entry of an inhabited dwelling. (Servin, supra, at p. 789, fn. omitted [contrasting burglary with the offense of home invasion].) “The elements of first degree burglary in California are (1) entry into a structure [(2)] currently being used for dwelling purposes . . . ([3]) with the intent to commit a theft or a felony.” (People v. Sample (2011) 200 Cal.App.4th 1253, 1261.) Thus, the elements of burglary under Nevada law differ from the elements of first degree burglary under California law in that only California law requires that the burglarized structure be inhabited.

The Nevada indictment accused defendant of “willfully and unlawfully enter[ing] a certain house located at [an address in Nevada] being the house of [the victim], with the intent then and there to commit larceny therein.” Defendant pleaded guilty to the burglary charge. His guilty plea memorandum stated that “the elements of the offense[] which the State would have to prove beyond a reasonable doubt at trial are that . . . I did . . . willfully and unlawfully enter a certain house located at [an address in Nevada] being the house of [the victim], with the intent then and there to commit larceny therein.”

It is unclear whether the trial court failed to recognize the discrepancy between the two statutes or whether it recognized the statutory disconnect and made a factual finding that the burglarized Nevada house was inhabited. Either way, the court erred. To the extent the court made a factual finding, it erred because it was permitted to consider only those facts “that the defendant admitted as the factual basis for a guilty plea” (Gallardo, supra, 4 Cal.5th at p. 136), which did not include that the house was inhabited. “[W]hen a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense’s elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment.” (Descamps, supra, 570 U.S. at p. 270.)

For the foregoing reasons, we will direct the trial court on remand to vacate its findings that defendant’s Nevada conviction qualifies as a prior strike and a prior serious felony.

D. Section 654

Defendant maintains that the trial court erred by failing to stay the sentence on either his conviction for inflicting corporal injury on someone with whom the offender has a dating relationship (count 4) or his conviction for assault by means of force likely to produce great bodily injury (count 5) because both counts were based on the same acts. The Attorney General concedes the error. For the reasons that follow, we will accept the Attorney General’s concession.

1. Standard of Review and Legal Principles

Section 654, subdivision (a) provides in relevant part, “[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.” “[I]t is well settled that section 654 applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor.” (People v. Perez (1979) 23 Cal.3d 545, 551.) The purpose of the protection against multiple punishments is to ensure that the defendant’s punishment will be commensurate with his criminal culpability. (Id. at p. 551, fn. 4.) “When convictions for two or more offenses are subject to section 654, the court sentences the defendant on the one providing the longest punishment and then imposes and stays the terms on the others.” (In re Borlik (2011) 194 Cal.App.4th 30, 34, fn. 4.)

“We apply the substantial evidence standard of review to the trial court’s implied finding that a defendant harbored a separate intent and objective for each offense.” (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414.)

2. Analysis

Counts 4 and 5 were based on defendant’s assault of Kristina outside the Palo Alto courthouse. The prosecutor made that clear during her closing argument, telling jurors that “Count 5, essentially, covers the exact same acts covered by Count 4.” Therefore, the trial court erred in failing to stay the sentence on count 4 or count 5, which involve the same sentencing triad. (See People v. Jones (2012) 54 Cal.4th 350, 358 [“Section 654 prohibits multiple punishment for a single physical act that violates different provisions of law”].)

E. Unauthorized Sentence

Although not raised by the parties, the trial court failed to correctly apply section 1170.1, subdivision (a), which resulted in the imposition of an unauthorized sentence. Unauthorized sentences “are reviewable ‘regardless of whether an objection or argument was raised in the trial and/or reviewing court.’ ” (People v. Smith (2001) 24 Cal.4th 849, 852.)

“If a defendant is convicted in a single proceeding of more than one felony carrying a determinate sentence, the sentencing court may order that the terms be served either concurrently or consecutively. If the sentencing court imposes consecutive terms, subdivision (a) of section 1170.1 specifies the normal method for calculating the overall prison term. It provides that, with certain exceptions, ‘the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and [s]ection 12022.1.’ (§ 1170.1, subd. (a).) It explains that the ‘principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements’ and that, with certain exceptions, ‘[t]he subordinate term for each consecutive offense . . . shall consist of one-third of the middle term of imprisonment prescribed for each’ felony and ‘shall exclude any specific enhancements.’ (Ibid.)” (People v. Nguyen (1999) 21 Cal.4th 197, 201-202.) “[T]he Three Strikes law’s basic sentencing provision for two strikes defendants (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)) incorporates the principal term/subordinate term methodology of section 1170.1,” such that “subordinate terms [should be calculated] by doubling one-third of the middle term for each such offense.” (Id. at p. 207.)

Here, the trial court correctly selected the 28-year sentence on count 3 as the principal term. The court then imposed consecutive terms on counts 4, 5, and 7. Both the oral pronouncement of judgment and the abstract of judgment indicate that the court imposed full-term consecutive sentences on those counts, rather than one-third the middle term as required by section 1170.1. In fact, the two year terms imposed on counts 4 and 5 are one-third the middle term of three years, doubled by the strike. (§ 273.5, subd. (a) [two, three, four triad]; § 245, subd. (a)(4) [two, three, four triad].) Accordingly, on counts 4 and 5, the court imposed the correct amount of time, but the abstract of judgment and oral pronouncement of judgment characterize the terms incorrectly. On count 7, the court did in fact impose the full middle term of two years, doubled by the strike. (§ 136.1, subd. (b)(2); § 1170, subds. (h)(1) and (h)(3) [16 months, two years, three years triad for felonies without specified terms].) That sentence was unauthorized; section 1170.1 required the court to impose one-third the middle term of two years, doubled (16 months).

We note the foregoing errors without requesting supplemental briefing. We do so in the interest of judicial economy because the sentencing errors are clear and can be remedied by the trial court on remand. (People v. Taylor (2004) 118 Cal.App.4th 454, 456.) Any party that nevertheless is aggrieved may petition for rehearing. (Id. at p. 457; Gov. Code, § 68081.)

III. DISPOSITION

The judgment is reversed, the sentence is vacated, and the matter is remanded to the trial court. On remand, the trial court is directed to vacate its findings that defendant’s Nevada conviction qualifies as a prior strike and a prior serious felony. The prosecution may elect to retry the prior conviction allegations. Regardless of whether the prosecution elects to retry the allegations, the court shall resentence defendant in accordance with sections 654 and 1170.1, subdivision (a).

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ELIA, ACTING P. J.

WE CONCUR:

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MIHARA, J.

_______________________________

GROVER, J.

People v. Mixon-Givens

H044705

Filed 12/31/19 Segura v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

JONATHAN SEGURA et al.,

Petitioners,

THE SUPERIOR COURT OF SANTA CLARA COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

H045834

(Santa Clara County

Super. Ct. No. C1627960)

Petitioners, five pre-trial criminal defendants, seek extraordinary writ relief from the trial court’s order denying their Penal Code section 995 motion to dismiss gang enhancements and a gang participation charge, which petitioners say are unsupported by legally competent evidence.

The charges in this case arise from three separate incidents that took place in late December 2015—a robbery, a homicide, and a fight in which two people were stabbed, one of them fatally. Petitioner Luciano Esquivel is alleged to have taken part in all three incidents. Petitioner Jonathan Segura is alleged to have been involved in the robbery and the homicide. Petitioners Martin Anaya, Luis Bracamonte, and Richard Deanda are alleged to have taken part in the fight only. All of the charges carry gang enhancement allegations (§ 186.22, subd. (b)) and all five petitioners were charged with the substantive offense of active participation in a criminal street gang (§ 186.22, subd. (a)).

I. BACKGROUND

A. December 25, 2015 Robbery and Resulting Charges

Shortly before 2:00 a.m. on December 25, 2015, Jesse M. purchased beer at a 7 Eleven near Story Road and Hopkins Drive in San Jose. As he exited the store, two men approached him and asked if he “banged,” meaning if he was a gang member. Jesse responded that he did not. One of the men then threatened to “stick” him if he didn’t give them his wallet, the red 49ers jacket he was wearing, and his beer. Jesse complied; he later identified Segura and Esquivel as the robbers from photo line-ups.

Segura admitted to police that he was at the 7-Eleven with Esquivel when Esquivel took a red jacket, money, and beer from a man. Segura told police that he warned the robbery victim not to “wear red in this neighborhood.”

Based on the robbery, Segura and Esquivel were charged with second degree robbery (§§ 211, 212.5, subd. (c); count 4) and were alleged to have committed that crime for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)(C)).

B. December 25, 2015 Homicide and Resulting Charges

Jose M. was stabbed to death on North 26th Street in San Jose between 5:00 and 6:00 a.m. on December 25, 2015. At the time of the stabbing, Jose was walking to his car with two friends. One of those friends told police that they were approached by three men, who had been at a nearby Mobil gas station. The men asked Jose and his friends if they “banged.” One of the friends said, “No,” and the three men began to walk away. Jose then said he was “down for the homeboys.” One of the three men immediately stabbed Jose in the chest.

Segura admitted to police that he was involved in Jose’s stabbing. He said that he, Esquivel, and Brian Gutierrez were getting gas at the Mobil gas station when Segura heard someone yelling “scraps.” That prompted Segura, Esquivel, and Gutierrez to cross the street and approach three men—Jose and his friends—to ask if they banged. Segura said the men initially denied being gang members, but that one of them then said he was “down with the homeboys” and called them “scraps.” Segura said Esquivel stabbed that man in the chest.

Gutierrez also admitted his presence during Jose’s stabbing. Gutierrez said he, Segura, and Esquivel stopped to get gas. They approached three men and asked if they were gang members. The men denied being in a gang. The victim then said he was “down for the homeboys” and Esquivel stabbed him.

Based on the stabbing, Segura and Esquivel were charged with murder (§ 187; count 1) and were alleged to have committed that crime for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subd. (b)(5)).

C. December 29, 2015 Fight and Resulting Charges

Gutierrez told police that on December 29, 2015 he went to the Carl’s Jr. near White and Quimby in East San Jose with his girlfriend. Laurence Ryan, a lieutenant with the San Jose Police Department and commander of the Department’s Gang Investigations Unit in 2015, testified that the Carl’s Jr. was located in “red territory claimed by Norteños.” Gutierrez told police he “was a Sureño with SSP, Sur Santos Pride” and that on the day he went to Carl’s Jr., he was “flamed out in Sureño clothing,” wearing blue shoes, blue shorts, and a blue shirt.

While at the Carl’s Jr., Gutierrez noticed a man and woman he believed to be Norteños based on their clothing. A second man joined them. The three motioned to Gutierrez in a way that made him think they wanted to fight, so he called his friends to come help him. Gutierrez reached Anaya and told him to come and to bring any weapons he had. Gutierrez told police that eventually Anaya, Deanda, Bracamonte, Esquivel, and Christian Perez arrived. A fight ensued outside the restaurant during which Andrea A. was stabbed fatally in the neck and Jason M. was stabbed three times. He survived.

Andrea’s mother told police that Andrea associated with Norteños. When interviewed by police, Jason denied gang involvement. However, the officer who interviewed him observed that he had tattoos typically associated with Norteños.

Anaya admitted to police that Gutierrez called him for help and that he came to Carl’s Jr. and was involved in a fight with Norteños there. Anaya told police that he heard “scrap and Norte” being yelled during the fight.

Perez also admitted to police that he participated in the fight. He told officers that the woman (presumably Andrea) said something about “scraps” and hit Esquivel with a stick, so Esquivel stabbed her. Perez also told police that Anaya and Esquivel stabbed Jason. Perez said he tried to stab one of the Norteños with a screwdriver, but the screwdriver broke.

Based on the Carl’s Jr. fight, Esquivel, Anaya, Bracamonte, and Deanda were charged with murder (§ 187; count 2) and attempted murder (§§ 664, subd. (a), 187; count 3) and were alleged to have committed those crimes for the benefit of, at the direction of, and in association with a criminal street gang, with the specific intent to promote, further, and assist in criminal conduct by gang members (§ 186.22, subds. (b)(5) & (b)(1)(C)).

D. Gang Evidence

1. Gang Tattoos and Admissions of Gang Membership

In the course of investigating the Carl’s Jr. fight, San Jose Police Detective Elizabeth Ramirez interviewed Gutierrez. She testified that he told her that he “was a Sureño with SSP, [meaning] Sur Santos Pride.”

Ramirez also interviewed Anaya, who she testified admitted to being a member of “SSP.” Evidence also was presented at the preliminary hearing showing that Anaya has tattoos depicting a fleur de lis, three dots, “SSP,” and “1916.”

San Jose Police Sergeant Bertrand Milliken also was involved in investigating the Carl’s Jr. incident. In the course of that investigation, he interviewed Deanda, who admitted being a member of “SSP.” Evidence also was presented at the preliminary hearing showing that Deanda has a tattoo depicting a fleur de lis.

Sergeant Milliken also interviewed Bracamonte, who stated that he was a Sureño but that, while he associates with SSP members, he had not been initiated to that gang.

Gutierrez told Sergeant Milliken that Esquivel was a Sureño but not a member of SSP.

Sergeant Milliken testified that Segura admitted to being a member of Varrio Virginia Trece, which Segura said was a Sureño gang. Evidence was presented showing that Segura had “13” and “Crazy Wicked Sureño” tattooed on his body.

There also was evidence showing that Perez had tattoos depicting three dots, a fleur de lis, and “13.”

2. Prior Police Contacts

Detective Allen Dela Cruz, a member of the San Jose Police Department’s Gang Investigations Unit, was the gang investigator assigned to the December 25 homicide and the Carl’s Jr. incident. Over hearsay objections from defense counsel, Dela Cruz testified to prior contacts other San Jose police officers had had with Gutierrez, Anaya, and Deanda. The significance of each contact was that the contacted petitioner either was in SSP territory or admitted SSP membership.

3. Gang Expert Testimony

Dela Cruz also testified as an expert on criminal street gangs. He opined that Sur Santos Pride (SSP) is a criminal street gang that is associated with the Mexican Mafia prison gang, has more than three members, and has been in existence since the 1990s. He further testified that symbols associated with SSP include the fleur de lis; the number 16, representing the sixteenth letter of the alphabet (P); the number 19, representing the nineteenth letter of the alphabet (S); the number 13; the color blue; one dot; three dots; and the numbers one and three. Dela Cruz testified that SSP’s territory is centered around Washington Elementary School in San Jose. Dela Cruz opined that SSP’s primary activities include “assaults, robberies, stolen vehicles, weapons possessions.”

Dela Cruz testified that the term “scrap” is “a derogatory term used by Norteños toward Sureños.”

Dela Cruz opined that the December 25 robbery was carried out for the benefit of and in association with a criminal street gang “because the victim . . . was wearing a red jacket in an area predominantly known as Sureño, and he was checked, meaning he was asked his gang affiliation.” Neither Dela Cruz nor the prosecutor specified which criminal street gang was at issue.

Dela Cruz further opined that the December 25 homicide was carried out for the benefit of and in association with a criminal street gang because “during the incident Mr. Segura heard someone yell out ‘scraps.’ They confronted Jose M[.] and his friends and asked about his gang affiliation, and during that contact, . . . ‘scraps’ [was said]. And scraps is a derogatory term used [by] Norteños towards Sureños.” Again, neither Dela Cruz nor the prosecutor specified which criminal street gang was at issue.

Finally, Dela Cruz opined that Andrea’s murder and the attempted murder of Jason were carried out for the benefit of and in association with a criminal street gang because “Gutierrez was at the Carl’s Jr. on the East Side of San Jose, which is predominantly a Norteño neighborhood. He was dressed in blue, and when he was confronted by [a man] and Andrea . . . , he believed that he was going to be attacked by other Norteños . . . therefore, he called other SSP gang members to come back him up. The other subjects arrived and a confrontation ensued where during that confrontation, Jason M[.] was stabbed and Andrea A[.] was murdered.”

There was no expert testimony as to whether Sureños meet the statutory definition of a criminal street gang; concerning the connections, if any, between SSP, Varrio Virginia Trece, and Sureños; or about Norteños, including any symbols with which they might associate or their relationship with Sureños.

E. Procedural History

Petitioners were held to answer at the close of the preliminary hearing on October 27, 2017. On November 6, 2017, petitioners waived formal arraignment, pleaded not guilty, and denied the allegations. That same day, the Santa Clara County District Attorney filed a first amended information charging Segura with one count of murder (§ 187; count 1), one count of second degree robbery (§§ 211, 212.5, subd. (c); count 4), and one count of active participation in a criminal street gang (§ 186.22, subd. (a); count 5); charging Esquivel with two counts of murder (§ 187; counts 1 and 2), one count of attempted murder (§§ 664, subd. (a), 187; count 3), one count of second degree robbery (§§ 211, 212.5, subd. (c); count 4), and one count of active participation in a criminal street gang (§ 186.22, subd. (a); count 5); and charging Anaya, Bracamonte, and Deanda with one count each of murder (§ 187; count 2), attempted murder (§§ 664, subd. (a), 187; count 3), and active participation in a criminal street gang (§ 186.22, subd. (a); count 5). Counts 1 though 4 all carried gang enhancement allegations as to each defendant. (§ 186.22, subd. (b).)

Petitioners filed a section 995 motion to dismiss the active participation in a criminal street gang charges (count 5) and the gang enhancements on January 10, 2018, 65 days after they waived formal arraignment. The trial court denied that motion on May 7, 2018.

On May 22, 2018, petitioners filed a petition for writ of mandate and/or prohibition in this court and requested a stay of all criminal proceedings in the superior court. This court stayed all trial court proceedings on July 11, 2018. We issued the order to show cause on August 1, 2019. We also provided the People (the real party in interest) the opportunity to file a return in opposition to the writ and petitioners the opportunity to file a reply to the return.

II. DISCUSSION

A. Availability of Pretrial Writ Review

“The denial of a motion made pursuant to [s]ection 995 . . . may be reviewed prior to trial only if the motion was made by the defendant in the trial court not later than . . . 60 days following defendant’s arraignment on the information or indictment if a felony, unless within these time limits the defendant was unaware of the issue or had no opportunity to raise the issue.” (§ 1510.) The People argue that pretrial writ review of the denial of petitioners’ section 995 motion is unavailable because petitioners filed that motion 65 days after arraignment, outside the 60-day limitation imposed by section 1510. Petitioners respond that section 1510’s exceptions to the 60-day rule apply given the length and complexity of the preliminary hearing. Alternatively, petitioners argue counsel was ineffective in failing to file the section 995 motion within the 60-day period required by section 1510.

1. Case Law Construing Section 1510

In McGill v. Superior Court (2011) 195 Cal.App.4th 1454, 1513 (McGill), the defendant’s section 995 motion was filed more than two-and-a-half years after her arraignment. The Court of Appeal nevertheless concluded that pretrial writ review was available because both the lack of opportunity and lack of awareness exceptions to section 1510 applied. The court found a lack of opportunity to file the section 995 motion sooner based on the “fact-intensive nature of the charge” (perjury before a grand jury); the vagueness of the indictment, which “gave no details at all about the alleged perjury”; and the “uncommonly large” record, consisting of five volumes of grand jury transcripts and nearly two volumes of exhibits. (McGill, supra, at p. 1514.) The McGill court found lack of awareness based on “the complexity of the issues,” which required “a line-by-line review of” the testimony of multiple witnesses and research into relatively obscure and potentially unsettled legal issues. (Id. at pp. 1514-1515.)

In Arteaga v. Superior Court (2015) 233 Cal.App.4th 851 (Arteaga), the defendant filed his section 995 motion 103 days after arraignment. This court concluded that both exceptions to section 1510 applied because “[p]etitioner had not been appointed counsel until one week after his arraignment”; “[d]iscovery was not provided to counsel until two weeks after her appointment”; the record was voluminous (2,370 pages of grand jury transcripts; 1,520 pages of grand jury exhibits; 1,500 pages of discovery documents; and audio recordings and images); and the issue raised in the section 995 motion was fact intensive and required extensive legal research. (Arteaga, supra, at p. 861.)

At least one court has held that “if there is ineffective assistance in not timely bringing a meritorious section 995 motion, then the section 995 motion may be reviewed on the merits.” (Fleming v. Superior Court (2010) 191 Cal.App.4th 73, 104.)

2. Both Exceptions to Section 1510 Apply, Making Pretrial Writ Review Available

Here, an attorney who was not present at the preliminary hearing was appointed through the Santa Clara County Independent Defense Counsel Office to prepare a section 995 motion for all five petitioners. To prepare the motion, she needed to review the 754-page (seven-volume) preliminary hearing transcript and assess the existence of probable cause as to five different defendants charged with numerous offenses plus gang allegations arising out of three separate incidents. The issue of whether the gang allegations and charges were supported by probable cause required a line-by-line review of the entire transcript, as relevant testimony was elicited from numerous witnesses, not solely the gang expert. For example, Detective Ramirez and Sergeant Milliken testified about petitioners’ gang membership admissions and tattoos, which gang expert testimony indicated were gang-related. Moreover, as the People argue, the facts of the incidents themselves are pertinent to the gang allegations and the elements of the substantive gang charges. In sum, preparation of the section 995 motion required analysis of the entirety of the lengthy preliminary hearing transcript with the interests of five separate defendants in mind.

The existence of probable cause to support the gang allegations and charges is a particularly complex issue in this case for two reasons. First, the underlying facts are complicated. This is not a straightforward case involving a single crime allegedly committed by alleged members of a single gang. Instead, there are three underlying incidents, each involving a different combination of the five petitioners (plus cooperating witnesses), and there is evidence indicating that petitioners belong to three different gangs. Accordingly, the probable cause analysis for each gang allegation varies depending on the facts of the underlying incident, including the identities of the parties involved and the gang-membership evidence adduced as to the particular defendant. A second source of complexity is the prosecutor’s failure to identify the relevant criminal street gang in the information or during the preliminary hearing. That omission left counsel to scour the transcript for testimony about SSP, Varrio Virginia Trece, Sureños, and any connections between the three.

Given the length of the preliminary hearing transcript, the fact that the section 995 motion was filed on behalf of five defendants who were not identically situated, and the complexity of the issues raised, we conclude that the exceptions to the 60-day requirement of section 1510 apply here.

B. Admissibility of Testimony Regarding Petitioners’ Prior Police Contacts

As noted above, Dela Cruz testified to prior contacts that other San Jose police officers had had with Gutierrez, Anaya, and Deanda over repeated hearsay objections from defense counsel. During each contact, the contacted petitioner either was in SSP territory or admitted SSP membership. As petitioners acknowledge, “[s]pecial rules apply to the admission of hearsay evidence at a preliminary hearing in a criminal case.” (Correa v. Superior Court (2002) 27 Cal.4th 444, 451 (Correa).) Specifically, section 872, subdivision (b) permits “the finding of probable cause [to] be based in whole or in part upon the sworn testimony of a law enforcement officer or honorably retired law enforcement officer relating the statements of declarants made out of court offered for the truth of the matter asserted,” so long as the officer has certain specified qualifications. But that provision does not permit even a qualified officer who lacks knowledge of the crime or the circumstances under which the out-of-court statement was made to “simply read a police report that was prepared by an absent investigating officer.” (Correa, supra, at p. 452.) Petitioners say that is precisely what happened here with respect to the prior police contacts evidence, which they request be culled from the record.

We need not decide whether Dela Cruz’s testimony regarding Gutierrez, Anaya, and Deanda’s prior police contacts constituted inadmissible hearsay. Even assuming it did, petitioners were not prejudiced by its erroneous admission, regardless of the standard of prejudice applied. The prior police contacts were relevant to show that Gutierrez, Anaya, and Deanda are members of SSP. That evidence was cumulative. Gutierrez admitted to Detective Ramirez that he was a member of SSP. Anaya likewise admitted to Detective Ramirez that he was a member of SSP and there was evidence that he was tattooed with SSP symbols. Deanda admitted to Sergeant Milliken that he was a member of SSP. And evidence was presented at the preliminary hearing showing that Deanda had a tattoo depicting a fleur de lis, an SSP symbol. Plainly, the admission of the challenged prior police contacts evidence did not impact the outcome of the preliminary hearing.

C. The Existence of Probable Cause Supporting the Gang Enhancements and Substantive Gang Charges

Petitioners argue the gang enhancements and substantive gang charges must be dismissed because the People failed to show that SSP is a criminal street gang. Specifically, they say the People failed to present competent evidence that SSP has as one of its primary activities the commission of one or more of the criminal acts enumerated in section 186.22, subdivision (e). Petitioners further contend that the substantive gang charges must be dismissed due to the absence of evidence that they knew that SSP members engage in or have engaged in a pattern of criminal gang activity.

1. Section 995 Motions

“To prevail on a section 995 motion to set aside an information, the defendant must establish that he was ‘committed without reasonable or probable cause.’ (§ 995, subd. (a)(2)(B).) To establish probable cause sufficient to withstand a section 995 motion to dismiss, the People must make some showing as to the existence of each element of the charged offense. [Citation.] ‘Evidence that will justify a prosecution need not be sufficient to support a conviction. [Citations.] “ ‘Probable cause is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.’ ” [Citations.]’ ” (People v. Chapple (2006) 138 Cal.App.4th 540, 545 (Chapple).) Thus, “[o]n a motion to dismiss a count under . . . section 995, we ask only ‘whether the evidence is such that “a reasonable person could harbor a strong suspicion of the defendant’s guilt.” ’ [Citation.] This is an ‘exceedingly low’ standard [citation] . . . .” (People v. Superior Court (Sahlolbei) (2017) 3 Cal.5th 230, 245.) Accordingly, “[a]n information should be set aside ‘only when there is a total absence of evidence to support a necessary element of the offense charged.’ ” (Chapple, supra, at pp. 545-546.)

The Evidence Code governs the admissibility of evidence at preliminary hearings. (Chapple, supra, 138 Cal.App.4th at p. 546; Evid. Code § 300 [“Except as otherwise provided by statute, this code applies in every action before the Supreme Court or a court of appeal or superior court, including proceedings in such actions conducted by a referee, court commissioner, or similar officer, but does not apply in grand jury proceedings”].) “Upon an accused’s timely motion, an indictment must be set aside if the sole proof of guilt consists of legally incompetent evidence.” (People v. Anderson (1968) 70 Cal.2d 15, 22.)

2. Legally Competent Evidence of SSP’s Primary Activities Was Submitted

The challenged gang enhancements and substantive gang participation charges are predicated on the existence of a criminal street gang. Section 186.22, subdivision (f) defines “criminal street gang” to mean “any ongoing organization, association, or group of three or more persons, whether formal or informal, having as one of its primary activities the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25), inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or common identifying sign or symbol, and whose members individually or collectively engage in, or have engaged in, a pattern of criminal gang activity.” The criminal acts enumerated in section 186.22, subdivision (e) include assault with a deadly weapon or by means of force likely to produce great bodily injury, robbery, theft and unlawful taking or driving of a vehicle, prohibited possession of a firearm, carrying a concealed firearm, and carrying a loaded firearm. (§ 186.22, subds. (e)(1), (2), (25), (31), (32), & (33).)

Petitioners contend the People failed to present any competent evidence that SSP has as one of its primary activities the commission of one or more of the criminal acts enumerated in section 186.22, subdivision (e). They acknowledge that the gang expert testified, over defense counsel objections for lack of foundation, that “[a]ssaults, robberies, stolen vehicles, weapons possessions” are among SSP’s primary activities. But petitioners say that opinion was not legally competent evidence because it was not based on an adequate factual foundation. We disagree.

a. Expert Testimony and Establishing “Primary Activities” for Purposes of Proving the Existence of a “Criminal Street Gang”

Our Supreme Court has explained that “[t]he phrase ‘primary activities,’ as used in the gang statute, implies that the commission of one or more of the statutorily enumerated crimes be one of the group’s ‘chief’ or ‘principal’ occupations. [Citation.] That definition would necessarily exclude the occasional commission of those crimes by the group’s members.” (People v. Sengpadychith (2001) 26 Cal.4th 316, 323 (Sengpadychith).) At trial, “[s]ufficient proof of the gang’s primary activities might consist of evidence that the group’s members consistently and repeatedly have committed criminal activity listed in the gang statute. Also sufficient might be expert testimony, as occurred in [People v.] Gardeley [(1996)] 14 Cal.4th 605.[ ] There, a police gang expert testified that the gang of which defendant Gardeley had for nine years been a member was primarily engaged in the sale of narcotics and witness intimidation, both statutorily enumerated felonies. (See § 186.22, subd. (e)(4) & (8).) The gang expert based his opinion on conversations he had with Gardeley and fellow gang members, and on ‘his personal investigations of hundreds of crimes committed by gang members,’ together with information from colleagues in his own police department and other law enforcement agencies. (Gardeley, supra, at p. 620.)” (Sengpadychith, supra, at p. 324.)

“ ‘The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. [Citations.]’ ” (People v. Polk (2019) 36 Cal.App.5th 340, 353.) “The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.” (People v. McDowell (2012) 54 Cal.4th 395, 426.) “[W]hen the proposed expert testimony rests on an assumption without any support in the trial evidence, the court . . . abuse[s] its discretion in admitting it. Such testimony has little or no probative value, bears the potential to mislead the jury into accepting the unsupported assumption and drawing from it unwarranted conclusions, and thus cannot significantly ‘help the trier of fact evaluate the issues it must decide.’ ” (People v. Moore (2011) 51 Cal.4th 386, 406.)

b. Factual Background

Dela Cruz, the gang expert, testified that he was a 14-year veteran of the San Jose Police Department and that he had been a detective with the department’s Gang Investigations Unit for one year. Prior to joining the Gang Investigations Unit, he had been a member of the Violent Crimes Enforcement Team, “the street-level gang unit with the San Jose Police Department.” Dela Cruz testified that he had worked on more than 100 gang-related incidents and that he had personally spoken with gang members as well as with witnesses and victims of gang violence. Dela Cruz testified that he had received well over 100 hours of formal training about criminal street gangs, including “courses through the South Bay Regional Training Consortium on Hispanic Street Gangs[,] . . . conferences with [the] San Mateo County Sheriff’s Office, Monterey County Gang Task Force, and . . . Santa Clara County Gang Task Force.” A portion of that training was on Hispanic criminal street gangs, including Norteños and Sureños. Dela Cruz further testified that he attends “monthly meetings with other police agencies in Santa Clara County, [including] probation and parole officers,” to discuss gang issues.

Dela Cruz testified that he investigated SSP in the context of investigating the December 25 homicide and the Carl’s Jr. incident and that he had previously heard of the gang. As noted, over defense counsel objections for lack of foundation, Dela Cruz testified that “[a]ssaults, robberies, stolen vehicles, weapons possessions” are among SSP’s primary activities.

c. Dela Cruz’s Opinion Was Supported by Adequate Foundation

Petitioners argue that Dela Cruz’s opinion as to the primary activities of SSP lacked foundation because he did not explicitly state the basis for that opinion. But the record supports the inference that Dela Cruz’s knowledge regarding SSP’s activities came from his formal training on criminal street gangs and his experience investigating gang-related crime. We recognize that Dela Cruz did not explicitly state that SSP is a Hispanic gang or provide details regarding his experience with SSP specifically. However, there was testimony that could have led a prudent person to conscientiously entertain a strong suspicion that SSP is a Hispanic gang with ties to Sureños. In particular, Dela Cruz testified that SSP is affiliated with the Mexican Mafia prison gang, Detective Ramirez testified that Gutierrez told her that he “was a Sureño with SSP,” and the testimony shows that members of SSP and Sureños associate with one another and commit crimes together. In light of the foregoing evidence, we cannot say that the court abused its discretion by concluding that Dela Cruz’s training on criminal street gangs generally, and Hispanic street gangs and Sureños specifically, provided sufficient foundation for his opinion regarding the primary activities of SSP. (See People v. Fuiava (2012) 53 Cal.4th 622, 672 [abuse of discretion standard applied to claim of inadequate foundation for expert testimony].)

In re Alexander L. (2007) 149 Cal.App.4th 605, on which petitioners rely, is distinguishable. There, a wardship petition alleged that the minor had committed three counts of vandalism and further alleged gang enhancements. (Id. at p. 609.) At the jurisdictional hearing, the gang expert testified as follows regarding the primary activities of the gang at issue: “ ‘I know they’ve committed quite a few assaults with a deadly weapon, several assaults. I know they’ve been involved in murders. [¶] I know they’ve been involved with auto thefts, auto/vehicle burglaries, felony graffiti, narcotic violations.’ ” (Id. at p. 611.) “No specifics were elicited as to the circumstances of these crimes, or where, when, or how [the gang expert] had obtained the information.” (Id. at pp. 611-612.) The court of appeal concluded that the expert’s “testimony lacked an adequate foundation.” (Id. at p. 612.) By contrast, here, Dela Cruz testified regarding his gang training, his conversations with gang members, and his participation in gang investigations, and his ongoing consultation with other experts in the field. This testimony provided a sufficient basis for his expert opinion on the primary activities of SSP. (See Sengpadychith, supra, 26 Cal.4th at p. 324.)

3. The Knowledge Element of the Substantive Gang Participation Charge

Petitioners were charged with actively participating in a criminal street gang in violation of section 186.22, subdivision (a). The elements of that offense are “(1) active participation in a criminal street gang, in the sense of participation that is more than nominal or passive; (2) knowledge that the gang’s members engage in or have engaged in a pattern of criminal gang activity; and (3) the willful promotion, furtherance, or assistance in any felonious criminal conduct by members of that gang.” (People v. Albillar (2010) 51 Cal.4th 47, 56.) Petitioners contend the People failed to present evidence as to the second element—that they knew of SSP’s pattern of criminal gang activity. The People respond that “the knowledge element can be satisfied simply by reasonable inferences from the facts of the charged crimes.” We agree with the People with respect to all of the petitioners other than Segura.

The phrase “pattern of criminal gang activity” is statutorily defined to mean “the commission of, attempted commission of, conspiracy to commit, or solicitation of, sustained juvenile petition for, or conviction of two or more” predicate offenses, “provided at least one of these offenses occurred after the effective date of this chapter and the last of those offenses occurred within three years after a prior offense, and the offenses were committed on separate occasions, or by two or more persons.” (§ 186.22, subd. (e).) Thus, “the requisite ‘pattern of criminal gang activity’ [can be proved] by evidence of ‘two or more’ predicate offenses committed ‘on separate occasions’ or by evidence of such offenses committed ‘by two or more persons’ on the same occasion.” (People v. Loeun (1997) 17 Cal.4th 1, 10 (Loeun), fn. omitted.) “[A] predicate offense may be established by evidence of the charged offense.” (People v. Tran (2011) 51 Cal.4th 1040, 1046.) Therefore, the requisite pattern can be established by evidence of “the defendant’s commission of the charged offense and the contemporaneous commission of a second predicate offense by a fellow gang member.” (Loeun, supra, at p. 10, 14 [pattern of criminal gang activity established through evidence of defendant’s “commission of the charged crime of assault with a deadly weapon on [the victim] and the separate assault on [the victim] seconds later by a fellow gang member”].) Unlawful homicide is a predicate offense. (§ 186.22, subd. (e)(3).)

The question before us is whether the record contains evidence that would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion that petitioners knew that SSP’s members engage in, or have engaged in, two or more predicate offenses.

Evidence was presented showing that that petitioners Esquivel, Anaya, Bracamonte, and Deanda all participated in the fight outside Carl’s Jr. Sergeant Milliken testified that Perez told him that he attempted to stab the male victim during that fight and that Anaya did stab the male victim. As noted above, there also was evidence presented that Perez and Anaya are members of SSP. The foregoing evidence would lead a person of ordinary caution to conscientiously entertain a strong suspicion that two SSP members (Perez and Anaya) committed predicate offenses (attempted unlawful homicide) in the presence of Esquivel, Anaya, Bracamonte, and Deanda. A person of ordinary caution could reasonably infer that Esquivel, Anaya, Bracamonte, and Deanda—having been present—knew of the commission of the predicate offenses and, by extension, of SSP’s members’ pattern of criminal gang activity.

The analysis differs as to Segura, who was not present for the Carl’s Jr. fight. There was evidence that he was present for the December 25 robbery. But only Esquivel (a Sureño) and Segura himself (a member of Varrio Virginia Trece) were present for that crime; no member of SSP participated. Accordingly, Segura’s knowledge of the robbery does not show knowledge that SSP members commit predicate offenses. Segura also was present for the December 25 stabbing, along with Esquivel and Gutierrez, a member of SSP. Segura’s knowledge of that single predicate offense involving a member of SSP is not sufficient to lead a person of ordinary caution to conscientiously entertain a strong suspicion that Segura knew that SSP’s members engage in, or have engaged in, two or more predicate offenses.

The People argue that, as to Segura, the court could have considered Sureños to be the pertinent criminal street gang for purposes of the substantive gang offense. The People acknowledge that the gang expert “did not specifically testify to the primary activities of the Sureños,” but say the court nevertheless could, “[a]s a matter of common knowledge,” have “had a strong suspicion that the Sureños, the umbrella gang, engaged in the requisite pattern of criminal activity, and that Segura . . . had sufficient experience with the gang, to know that was the case.” No evidence was submitted that the Sureño gang meets the statutory definition of a criminal street gang (i.e., whether it has more than three members, has the commission of a predicate offense as one of its primary activities, and has members who have engaged in a pattern of criminal gang activity). The People’s apparent position is that it is a matter of common knowledge that the Sureño gang is a criminal street gang within the meaning of section 186.22, subdivision (f). We disagree with that viewpoint. The existence of the Sureño gang may be common knowledge in certain communities. But even among those familiar with the gang’s existence, whether the gang satisfies the statutory definition of “criminal street gang” (e.g., whether Sureño gang members committed predicate offenses within the statutorily required timeframes to satisfy the pattern of criminal gang activity requirement) is, in our view, a matter beyond common knowledge. Indeed, were it not, gang expert testimony would not be admissible. (Evid. Code, § 801, subd. (a) [expert opinion testimony must relate “to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact”].) Moreover, we are not aware of any authority permitting a court to hold a defendant to answer based on “common knowledge” of a necessary element of the offense, as opposed to any evidence supporting that element. We conclude that count 5 should have been dismissed as to Segura because “ ‘there is a total absence of evidence to support [the knowledge] element of [that] offense . . . .’ ” (Chapple, supra, 138 Cal.App.4th at pp. 545-546.)

III. DISPOSITION

Let a peremptory writ of mandate issue directing respondent court to vacate its order denying petitioners’ section 995 motion and to enter a new order dismissing the active participation in a criminal street gang charge (count 5) against Segura only and denying the motion in all other respects. The previously ordered temporary stay is dissolved effective upon the issuance of remittitur.

_________________________________

ELIA, ACTING P. J.

WE CONCUR:

_______________________________

MIHARA, J.

_______________________________

GROVER, J.

Segura et al. v. Superior Court

H045834

Filed 1/3/20 P. v. Rosales CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

RICHARD ALBERT ROSALES,

Defendant and Appellant. B297866

(Los Angeles County

Super. Ct. No. TA146803)

APPEAL from an order of the Superior Court of Los Angeles County, Michael Shultz, Judge. Affirmed in part, reversed and remanded with directions in part.
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael R. Johnsen and Yun K. Lee, Deputy Attorney General, for Plaintiff and Respondent.

__________________________

INTRODUCTION

Defendant appeals from his convictions for criminal threats and possession of a firearm following a no contest plea. Defendant argues that the trial court incorrectly calculated his presentence custody credits. His argument centers around whether the trial court struck defendant’s firearm enhancement for all purposes (rendering the felony conviction not violent) or just for the purpose of calculating his punishment (making the felony conviction violent). If the conviction was not violent, defendant would be entitled to two days of conduct credit for every two days served under Penal Code section 4019. If the conviction was for a violent felony, defendant would only be entitled to 15 percent conduct credits under section 2933.1, subdivision (a).

At sentencing, the trial court arguably expressed an intention to both sentence defendant for a violent felony with 15 percent conduct credits, and strike the firearm enhancement for all purposes. We conclude that the record is unclear as to the trial court’s intention and remand for resentencing.

FACTS AND PROCEDURAL BACKGROUND

The People filed an information charging defendant with criminal threats (count 1) and possession of a firearm by a felon (count 2). Count 1 alleged that defendant personally used a firearm within the meaning of section 12022.5, and that he had sustained a prior serious felony conviction. Both counts alleged defendant had sustained a prior serious or violent conviction under the Three Strikes law.

On April 18, 2019, defendant pleaded no contest to both counts and admitted the firearm allegation, a prior strike, and a five-year prior serious felony enhancement. During plea discussions, the trial court noted that defendant was on probation for assault with a deadly weapon when the instant case was filed with a firearm allegation. Both the court and defense counsel acknowledged that the firearm allegation made the present crime a violent felony. The court agreed with defense counsel that it could strike the firearm allegation, but disagreed as to its effect on conduct credit.

Defense counsel first argued incorrectly, “If we strike it for purposes of sentencing, then it’s not a violent felony.” The court stated, whether the conviction is no longer for a violent felony is “[o]nly a question that someone smarter than me and gets paid more money than me can decide. [¶] I will advise [defendant] that it is, and that he will be serving 85 percent of his time, because I believe that’s what the Department of Corrections is going to do. There’s no case law on it, so I don’t know. It’s never been dismissible.”

Defense counsel argued that if the court struck the firearm allegation, “then it’s no longer a violent felony” and defendant “would get day-for-day credits here and 20 percent credits in the future.” The court was unpersuaded: “I understand. I mean, I understand your position. [¶] The problem is more significant than, what is the Department of Corrections going to do. The problem is present now because if it is considered a violent felony, and I believe it is, it would require me to limit his local conduct credits, as well as his post-conviction credits by the Department of Corrections, and that’s what I intend to do. I think that’s the appropriate thing, notwithstanding the fact that it may derail the disposition.”

After a brief recess, the court then explained the terms of the negotiated agreement: defendant would enter an open plea to the court and admit the truth of all of the allegations, and the court would sentence him to four years in state prison and strike “the prior strike, the prior five-year prior, and the gun use as well.” As to the credits, the court stated, “It is my opinion and belief that you will have to serve 85 percent of your sentence, and that is the way that I will operate.” The court added that defense counsel had requested a certificate of probable cause to appeal “that very narrow decision” and that it would sign it.

For both counts, the trial court imposed the midterm sentence of two years, doubled to four years under the Three Strikes law (see § 667, subd. (e)(1)), and then ran count 2 concurrent to count 1. The court awarded defendant 276 days presentence credit, consisting of 240 days actual custody, plus 36 days conduct credit (15 percent) pursuant to section 2933.1, subdivision (c).

After the court sentenced defendant, defense counsel asked the court whether it was “striking and dismissing” the prior serious felony conviction enhancement and the firearm enhancement “for all purposes regarding sentencing in this case.” The court replied yes. Before concluding the hearing, the court told the clerk, “[D]ismissal 1385 for all purposes on the . . . five-year prior and the gun use, but he admitted it.”

Defendant filed a timely notice of appeal. The trial court granted defendant’s request for a certificate of probable cause.

DISCUSSION

Defendant contends that the trial court should have awarded his presentence conduct credits under section 4019 rather than section 2933.1 because the court had stricken the firearm enhancement “for all purposes,” not just for punishment. Defendant’s argument ignores much of what the trial court said at sentencing; accordingly we remand for the trial court to resolve the ambiguity and state whether the firearm enhancement is stricken in its entirety or only for purposes of “the additional punishment.” (§ 1385, subd. (b)(1).)

a. Applicable Law
b.
Generally, a person confined prior to sentencing may earn two days of conduct credit for every two days served under section 4019. (People v. McKenzie (2018) 25 Cal.App.5th 1207, 1212.) However, section 2933.1, subdivision (a), restricts inmates convicted of certain violent offenses within the meaning of section 667.5, subdivision (c) to earning a maximum of 15 percent conduct credits. Any felony in which the defendant uses a firearm qualifies for this restriction. (§ 667.5, subd. (c)(8) [defining “violent felony” to include any felony where a personal use of a firearm under section 12022.5 is charged and proven].)

When a court intends to exercise its discretion to strike an enhancement, like the firearm enhancement at issue in this case, it has “two options” under section 1385. (In re Pacheco (2007) 155 Cal.App.4th 1439, 1442.) It can either strike or dismiss an enhancement “in its entirety” or strike only the “additional punishment for that enhancement.” (Ibid.; see also § 1385 subd. (b)(1) [“If the court has the authority pursuant to subdivision (a) to strike or dismiss an enhancement, the court may instead strike the additional punishment for that enhancement in the furtherance of justice in compliance with subdivision (a).”].)

In In re Pacheco, supra, 155 Cal.App.4th 1439, the defendant pleaded guilty to corporal injury on a cohabitant and admitted the allegation that he inflicted great bodily injury on the victim, as defined by section 12022.7, subdivision (a). (Pacheco, at p. 1441.) The trial court struck the punishment for the enhancement pursuant to section 1385, but defendant’s custody credits were calculated under the 15 percent rate of section 2933.1. (Pacheco, at pp. 1441-1442.) The defendant appealed the application of section 2933.1 to the calculation of his custody credits. The Court of Appeal held that where the sentencing court struck “only the punishment for the [great bodily injury] enhancement, and not the enhancement in its entirety, [the Department of Corrections and Rehabilitation] properly limited his custody credits to 15 percent.” (Pacheco, at p. 1442.) The court explained that in striking only the punishment for the enhancement, “[t]he fact of the enhancement . . . remained” and the defendant was still a person convicted of a violent felony who could only accrue no more than 15 percent of custody credit under section 2933.1, subdivision (a). (Pacheco, at p. 1444.)

c. The Record is Unclear Whether the Trial Court Struck the Enhancement for All Purposes or Only for Punishment
d.
Whether the calculation of defendant’s conduct credits should be limited by section 2933.1 depends on whether the trial court struck the firearm enhancement for all purposes or struck only the additional punishment in this case. Here, the record discloses that the court clearly intended to strike the firearm enhancement for some purpose but we are less certain whether the court intended to strike the enhancement for all purposes or only for punishment. The Attorney General argues the trial court was unaware of its discretion, and invokes the rule of remand.

“ ‘Defendants are entitled to sentencing decisions made in the exercise of the “informed discretion” of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that “informed discretion” than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant’s record.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 (Gutierrez).) “Generally, when the record shows that the trial court proceeded with sentencing on the erroneous assumption it lacked discretion, remand is necessary so that the trial court may have the opportunity to exercise its sentencing discretion at a new sentencing hearing.” (People v. Brown (2007) 147 Cal.App.4th 1213, 1228; Gutierrez, at p. 1391 [appropriate remedy is remand for resentencing].)

The record creates some ambiguity, in part because of a question defense counsel asked the court toward the conclusion of the sentencing hearing.

“The Court: I am striking and dismissing the five-year prior and the personal use of a firearm allegation, and I don’t believe any – actually, I don’t think I took an admission. Let’s make sure. I don’t believe there’s any one year priors alleged.

“[Defense Counsel]: The court is striking and dismissing those for all purposes regarding sentencing in this case?

“The Court: Yes.”

When counsel included in his question both “for all purposes” and “regarding sentencing,” the court’s answer became unclear. The ambiguity was not clarified by the judge’s final statement at the sentencing hearing: “Chante [who we presume is the clerk], Dismissal of 1385 for all purposes on the prior – excuse me – on the five year prior and the gun use, but he admitted it.” When imposing the sentence, the trial court expressly awarded defendant only 15 percent credit.

Ultimately whether the Attorney General is correct that the trial court did not understand its discretion or there was just some ambiguity in the record, the remedy is the same: remand to the trial court. (In re H.D. (2009) 174 Cal.App.4th 768, 779–780 [appellate court must remand where “it is unclear whether the juvenile court intended to fix the minor’s term of maximum physical confinement at 12 years eight months or something less, and whether the court understood it had the discretion to impose a maximum term other than the lower or middle term”].)

As a separate argument, defendant contends that we cannot remand because “[s]erving a longer sentence because of a decrease in presentence conduct credit . . . is the very definition of additional punishment.” We disagree. This argument presumes defendant was entitled to more presentence conduct credit. As we have explained, that is the issue to be decided on remand.

DISPOSITION

We remand for resentencing. On remand, the trial court must exercise its discretion to either strike the firearm enhancement for all purposes or only for punishment. Pursuant

to the stipulation by the parties at oral argument, the remittitur is issued forthwith. In all other respects, the judgment is affirmed.

RUBIN, P.J.

WE CONCUR:

BAKER, J.

KIM, J.

Filed 1/3/20 Cindy M. v. Johnson CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CINDY M.,

Plaintiff and Respondent,

WAYNE JOHNSON,

Defendant and Appellant.

A156075

(Contra Costa County

Super. Ct. No. D18-03875)

Following a hearing, the trial court issued plaintiff Cindy M. a five-year restraining order against defendant Wayne Johnson under the Domestic Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.). Johnson did not appear at the hearing. He unsuccessfully moved to quash the order because he had not been served with a temporary restraining order or the notice of hearing on the petition. Because there is no evidence in the record that Cindy satisfied the service requirements specified in the restraining order, we reverse. We vacate the five-year restraining order. We further direct the trial court to reinstate the temporary restraining order and set a new hearing on the petition to allow Cindy an opportunity to serve Johnson.

BACKGROUND

Cindy and Johnson dated on and off for several months beginning in January 2018. On September 10, 2018, Cindy, in propia persona, petitioned for a five-year domestic violence restraining order to protect her and her two teenage daughters from Johnson.

Cindy described several incidents of abuse in her declaration supporting the petition. One day in her car, Cindy told Johnson she was going to drive him home. He told her if she did their relationship was over, and then hit her. In August 2018, when they were no longer seeing each other, Johnson appeared behind Cindy as she exited her car in her garage. Cindy, unaware Johnson was there, screamed and Johnson left. In September 2018, when Cindy got out of her car in her garage after returning home late, Johnson again appeared but this time attacked her, placed her in a headlock, forced her to the ground, and told her, “ ‘[It’s] over for you.’ ” But he released her and left. This assault caused multiple contusions and fractured her nose. Cindy also generally described incidents where Johnson pinned her to the ground and held a knife over her face, dragged her down the stairs of his home, pointed a rifle at her, and threatened to kill her and harm her children.

On September 10, 2018, the court issued a temporary restraining order (TRO) against Johnson and scheduled a hearing for October 2, 2018, for the five-year restraining order. The TRO remained in effect until the scheduled hearing. The TRO directed that prior to the hearing, “someone age 18 or older—not you or anyone else to be protected—must personally give (serve) a court’s file-stamped copy of this form (DV 109, Notice of Court Hearing)” to defendant with other papers, including the TRO. (Emphasis omitted.)

On September 28, 2018, Cindy filed her process server’s “(Amended) Affidavit of Reasonable Diligence.” According to the affidavit, on September 12, 13, and 14, her process server made four attempts to personally serve Johnson notice of the hearing and related documents at what appears to be a residence. On all four occasions Johnson was either “Not in” or the server received “No Answer.” On September 14, he also attempted unsuccessfully to personally serve Johnson at two places of work and at a night club. There is no indication in the affidavit that the process server ever personally served Johnson or that a copy of the order and notice were either left or mailed to his residence or work address.

At the October 2, 2018 hearing on the petition, Cindy appeared in propia persona and Johnson did not appear. The court stated that Cindy’s process server “did an excellent job even though it looks like he was not successful. Nonetheless, there were incredible efforts made to get Mr. Johnson served. So, based on that affidavit of due diligence, I am prepared to go forward with the restraining order.” After Cindy discussed the events set forth in her declaration, the court issued a five-year restraining order precluding Johnson from contacting or harassing Cindy and her children.

On October 9, 2018, Johnson moved to quash service of the TRO and the five-year restraining order. The court denied the motion. The court’s minutes state that “the prior judge after review of the amended affidavit of reasonable diligence found cause to hear the matter and granted the DV [restraining order] accordingly.” Johnson now appeals.

DISCUSSION

Johnson contends the restraining order was void due to a lack of personal jurisdiction over him because he was never served prior to the hearing. He contends his motion to quash should have been granted and the five-year restraining order set aside.

The DVPA “permits the trial court to issue a protective order ‘to restrain any person for the purpose’ of preventing a recurrence of domestic violence and ensuring a period of separation of the persons involved; the petitioner must present ‘reasonable proof of a past act or acts of abuse.’ ” (Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 820.)

“The procedure for obtaining an ex parte temporary restraining order is set forth in section 240 et seq.” (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1494.) Such a temporary restraining order under the DVPA may be granted without notice to the respondent if “it appears from facts shown by the declaration in support of the petition for the order . . . that great or irreparable injury would result to the petitioner before the matter can be heard on notice.” (§ 241.)

Within either 21 days or 25 days from the date that a TRO is granted, “a hearing shall be heard on the petition.” (§ 242, subd. (a).) The respondent “shall be personally served with a copy of the petition, the temporary restraining order, if any, and the notice of hearing on the petition. Service shall be made at least five days before the hearing.” (§ 243, subd. (a).) A DVPA restraining order “may issue . . . after notice and a hearing.” (§ 6340, subd. (a)(1).)

An order obtained in violation of a party’s due process rights to notice and an opportunity to be heard, or where the court lacked jurisdiction over the defendant is void. (Cf. Brown v. Williams (2000) 78 Cal.App.4th 182, 186, fn. 4.) “Proper service is a requirement for a court’s exercise of personal jurisdiction.” (Caldwell v. Coppola (1990) 219 Cal.App.3d 859, 863.)

To the extent Johnson argues the TRO was void for lack of service, we disagree. The trial court could grant such a temporary order without notice to Johnson if the facts in support of Cindy’s petition demonstrated “that great or irreparable injury would result to the petitioner before the matter can be heard on notice.” (§ 241; see also former § 6300, amended by Stats. 2014, ch. 635, § 4, No. 8A Deering’s Adv. Legis. Service, p. 598 [DVPA order can be issued “with or without notice”].) Cindy’s declaration made that showing. According to her declaration, Johnson stalked her at her home, attacked her causing injuries, and threatened her and her family. These assertions provided a sound basis for the court’s issuance of the TRO without notice to Johnson of her request for a temporary order.

The five-year restraining order is subject to a different analysis. At the time of Cindy’s petition, that order could only be issued after notice and a hearing. (Former § 6340, subd. (a), amended by Stats. 2014, ch. 635, § 7, No. 8A Deering’s Adv. Legis. Service, pp. 598–599.) Section 243 required that Johnson “be personally served with a copy of the petition, the temporary restraining order . . . and the notice of hearing on the petition” at least five days before the hearing. (§ 243, subd. (a).) As the petitioner, Cindy had the “ ‘burden of proving the facts that [gave] the court jurisdiction, that is the facts requisite to an effective service.’ ” (American Express, supra, 199 Cal.App.4th at p. 387.)

Assembly Bill 2694 also amended section 6340, which now includes the following subdivision (a)(2)(A): “If at the time of a hearing with respect to an order issued pursuant to this part based on an ex parte temporary restraining order, the court determines that, after diligent effort, the petitioner has been unable to accomplish personal service, and that there is reason to believe that the restrained party is evading service, the court may permit an alternative method of service designed to give reasonable notice of the action to the respondent.” (§ 6340, subd. (a)(2)(A), amended by Stats. 2018, ch. 219, § 3, No. 3 Deering’s Adv. Legis. Service, pp. 154–155.) The alternative methods of service include but are not limited to service by publication and service by first class mail to the respondent’s home or workplace. (§ 6340, subd. (a)(2)(A)(i)–(ii).) If the court permits an alternative method of service, it is required to grant a continuance to allow for alternative service pursuant to section 245. (§ 6340, subd. (a)(2)(B).) None of these options for substitute service were yet effective and thereby available to Cindy at the October 2018 hearing.

There is no proof of personal service of the TRO and notice of hearing on Johnson in the record as required under section 243 at the time of the hearing. Instead, the record contains only Cindy’s process server’s affidavit of due diligence showing every attempt at personal service was unsuccessful. There is also no showing of an attempt at substituted service in lieu of personal service as would be allowed under section 6340 effective January 1, 2019. So, there is no basis to conclude an alternative means of service substantially complied with section 243.

These ineffectual attempts did not satisfy the notice requirements under the DVPA, and the trial court’s election to proceed on the basis of the process server’s affidavit was without legal support. Had Cindy’s hearing occurred today, the trial court could make findings under section 6340 to allow a continuance of the hearing to permit an alternative method of service. (See § 6340, subd. (a)(2)(A).) Without this option, Cindy had to demonstrate personal service on Johnson. Accordingly, the court lacked jurisdiction over Johnson and the five-year restraining order issued in violation of his right to due process. The trial court erred in denying Johnson’s motion to quash the five-year restraining order.

DISPOSITION

The order denying Johnson’s motion to quash service of the five-year restraining order is reversed. The matter is remanded to the trial court with directions to enter a new order granting the motion to quash and vacating the five-year restraining order. The TRO is reinstated and the trial court is directed to conduct a hearing on a new multiyear restraining order within 25 days of issuance of the remittitur and to afford Cindy the opportunity to serve Johnson with the TRO and notice of hearing five days before the scheduled hearing. The parties are to bear their own costs on appeal.

_________________________

Siggins, P.J.

WE CONCUR:

_________________________

Fujisaki, J.

_________________________

Petrou, J.

Cindy M. v. Johnson, A156075

Filed 1/3/20 Goraya v. Stephens CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

MOHAMMAD GORAYA,

Plaintiff, Cross-defendant and Respondent,

MILDRED K. STEPHENS,

Defendant, Cross-complainant and Appellant.

F078335

(Super. Ct. No. S1500CV282409)

OPINION

THE COURT*

APPEAL from an order of the Superior Court of Kern County. Thomas S. Clark, Judge.

Yarra Law Group and Nicholas E. Aniotzbehere, for Defendant, Cross-complainant and Appellant.

Dessy & Dessy and Ronald D. Dessy, for Plaintiff, Cross-defendant, and Respondent.

-ooOoo-

Mildred Stephens appeals from an order denying her motion for attorney’s fees based on a fee provision in a purported contract between her and her real estate agent. The trial court’s denial was based on its determination that there was no prevailing party in the matter. We find no error.

FACTS AND PROCEDURAL HISTORY

Stephens had a commercial property to sell in Lamont. Mohammed Goraya was the listing agent. A dispute arose after purchase contracts were executed between Stephens and two different buyers, Sekhon and Aljanar, with the sale being completed to Aljanar, the high bidder, whom Goraya allegedly failed to present to Stephens because he favored Sekhon. Stephens paid Goraya no commission. In a lawsuit, the lower bidder made a contract claim against Stephens. Stephens filed, but never served, a cross-complaint against Goraya for implied indemnity. The dispute between Stephens and Sekhon, the thwarted buyer, was submitted to arbitration and settled. Goraya was joined as a party in the arbitration at his own request, and obtained an award against Stephens for his commission and attorney’s fees. Stephens asserted claims against Goraya before the arbitrator as well, but the arbitrator found that these lacked merit.

Goraya filed a petition to confirm the arbitration award against Stephens. Stephens opposed the petition, and, in her opposition, included a request to vacate the award. The trial court denied the petition to confirm and granted the request to vacate.

Goraya appealed. In a prior opinion, we dismissed his appeal as untimely. (Goraya v. Stephens (May 30, 2018, F074590) [nonpub. opn.].)

Returning to the trial court, Stephens filed a motion for attorney’s fees for the period beginning January 27, 2016, the date on which the arbitrator issued his award to Goraya. The motion was based on an attorney’s fees provision in a standard listing agreement form that had been partially filled out for the property. Neither the record for this appeal nor the record for the prior appeal (of which we take judicial notice) contains an executed copy of the listing agreement. In the copies in both records, all the signature lines and spaces for initialing are blank, except that Goraya’s initials appear in one of those spaces. There has been no claim, however, that the parties are not bound by the listing agreement.

At the hearing on the fee motion, the trial court stated:

“My tentative with respect to the attorney’s fees is to determine that there is no prevailing party. I want to give you some explanation for that. Stephens is maintaining that she’s the prevailing party in the post-arbitration proceeding and is entitled to fees in connection therewith and is basing her claim on a claim of being the prevailing party under Civil Code Section 1717.

“And as I understand it, her request for attorney’s fees is limited [in] scope [to] of the confirmation [or] vacation of the arbitrator’s award, reconsideration thereon, and in opposing the appeal.

“I find that Stephens is not the prevailing party on the contract. Stephens did not prevail against Goraya in the arbitration where the arbitrator issued an award in favor of Goraya, although that award was not confirmed and was later vacated.

“Stephens obtained no recovery against Goraya in arbitration nor via the cross-complaint that had been filed in this court … in which was subsequently voluntarily dismissed by Stephens.

“Following the dictates of the Hsu, H-s-u, case, 9 Cal.4th 863, I’m viewing the entirety of this proceeding and the litigation objectives of the parties. It cannot be said, in the Court’s view, that Stephens, in that view, is the prevailing party for fee purposes. Simply because Stephens was able to prevent confirmation of the arbitrator’s award against her does not, in the Court’s view, make Stephens the prevailing party under the circumstances of this case.

“Stephens is certainly not entitled to attorney’s fees for the underlying trial court proceedings, and I also note that Stephens did not bring a motion for fees following this Court’s ruling vacating the arbitration award in 2016.· That’s my tentative with respect to the motions for attorney’s fees.”

After hearing oral argument, the court added:

“Let me make one more comment on the motion for attorney’s fees because this was part of my thinking in my ruling. While Stephens may have prevailed on the appeal due to the technicality of the appeal being untimely, the appeal did not address the merits of the dispute and that also was part of my thinking. I just wanted the record to reflect that.”

At the end of the hearing, the court adopted its tentative ruling as final. It issued a minute order stating substantially identical reasoning.

DISCUSSION

Stephens now argues that she was the prevailing party with respect to Goraya’s attempt to enforce his arbitration award against her, and therefore the court should have awarded attorney’s fees to her under Civil Code section 1717 and Code of Civil Procedure sections 1032 and 1293.2. To the extent that the correctness of a ruling on an attorney’s fee motion depends on whether a legal basis for an award exists, we review the ruling de novo as a question of law. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332; Khan v. Shim (2016) 7 Cal.App.5th 49, 55; Sessions Payroll Management v. Noble Constr. Co. (2000) 84 Cal.App.4th 671, 677.) If the ruling depends on disputed facts, we review the trial court’s factual findings under the substantial evidence standard. (J.B.B. Investment Partners, Ltd. v. Fair (2014) 232 Cal.App.4th 974, 993.) In some circumstances, as will be seen, the question of which party, if any, has prevailed has more than one reasonable answer; and then we review the trial court’s answer for abuse of discretion. (Code Civ. Proc., § 1032, subd. (a)(4); Civ. Code, § 1717, subd. (b)(1); Goodman v. Lozano, supra, 47 Cal.4th at p. 1332; Khan v. Shim, supra, 7 Cal.App.5th at p. 55, fn. 3.) If there is any legal theory under which the trial court’s ruling is correct, we must affirm. (J.B.B. Partners, Ltd. v. Fair, supra, 232 Cal.App.4th at p. 993.)

The trial court’s analysis was, in effect, that the matter under consideration included not just Goraya’s unsuccessful efforts in the trial court and on appeal to obtain confirmation of the arbitration award against Stephens for his commission and attorney’s fees for pursuing the commission, but also the claims in Stephens’s unserved and dismissed cross-complaint against Goraya and Stephens’s unsuccessful claims against Goraya as asserted before the arbitrator. Taking all this into account, and citing Civil Code section 1717, the court found that each party had made claims against the other and neither had recovered anything against the other, and concluded this meant neither prevailed.

We find no error in this reasoning.

Civil Code section 1717, subdivision (a)(1), provides that attorney’s fees must be awarded to the prevailing party in an action on a contract that contains an attorney’s fee clause. Civil Code section 1717, subdivision (b)(1) provides:

“The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section.”

So the prevailing party is the party obtaining the greater relief, but the trial court “may” find (i.e., has discretion to find) there is no prevailing party if the circumstances warrant that finding.

If a defendant defeats a plaintiff’s claim, and that is the only claim on the contract in the case, then the defendant is deemed to have obtained the greater relief and is the prevailing party. (Hsu v. Abbara (1995) 9 Cal.4th 863, 875-876 (Hsu); Carole Ring & Assoc. v. Nicastro (2001) 87 Cal.App.4th 253, 261.) In that kind of situation, the defendant has achieved “a simple, unqualified victory by defeating the only contract claim in the action” and the trial court has no discretion to deny a motion for attorney’s fees under Civil Code section 1717. (Hsu, supra, 9 Cal.4th at p. 877.)

On the other hand, “when the results of the litigation are mixed,” Civil Code section 1717 gives the trial court discretion to decide that there is no prevailing party on the contract. (Hsu, supra, 9 Cal.4th at p. 876.) The court should exercise this discretion after “compar[ing] the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources.” (Id. at p. 876.)

Stephens maintains she achieved a simple, unqualified victory, so she is entitled to a fee award under Civil Code section 1717. She relies on the fact that Goraya has obtained no relief on his claim against her for his commission. But she overlooks the fact that she made claims against him as well, both in her cross-complaint and in arbitration. The former were dismissed by her. The latter were rejected by the arbitrator, and after the court vacated the arbitrator’s award, she did not request a rehearing in arbitration. Her action advancing these claims was “on the contract” within the meaning of Civil Code section 1717. An action is on the contract in this context if it “involves” the contract. (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1168-1171.) Stephens’s claims against Goraya all involved alleged actions inconsistent with his status as her agent or broker, a status that existed only because of the contract between them.

The trial court thus correctly concluded the results of the litigation on the contract were mixed. All the results can be classified as for Stephens and against Goraya, for Goraya and against Stephens, or neither for nor against either party:

Result For Stephens/against Goraya

For Goraya/against Stephens Neither for nor against either party
Arbitrator denies Stephens relief on her claims against Goraya; no rehearing requested after vacatur of arbitration award

X
Arbitrator awards commission and attorney’s fees to Goraya, but trial court denies Goraya’s motion to confirm, and vacates award

X
Stephens voluntarily dismisses cross-complaint against Goraya in court X
Goraya obtained an arbitration award in his favor both on his claims against Stephens and on her claims against him, but the trial court refused to confirm this award and instead vacated it, so he took nothing. We neither affirmed nor reversed this ruling, so his appeal changed nothing. Stephens sought but failed to obtain an arbitration award against Goraya. The arbitrator’s rejection of her claims was vacated, but she did not seek a rehearing in arbitration, so she took nothing. Under Civil Code section 1717, her voluntary dismissal in court of her cross-complaint against Goraya favored neither side (See Civ. Code, § 1717, subd. (b)(2) [neither party prevails if claim voluntarily dismissed].)

So Goraya lost on his claims against Stephens, she lost on her claims against him, and there was one neutral disposition. In other words, each party had a won-lost-tied record of 1-1-1. Under these circumstances, the trial court had discretion under Civil Code section 1717 to find that no one prevailed, and its decision to do so was within the bounds of reason.

Stephens next argues that she is entitled to attorney’s fees under Code of Civil Procedure sections 1293.2 and 1032. The former authorizes costs awards for proceedings on petitions to compel arbitration and to confirm or vacate arbitration awards. It provides:

“The court shall award costs upon any judicial proceeding under this title as provided in Chapter 6 (commencing with Section 1021) of Title 14 of Part 2 of this code.” (Code Civ. Proc., § 1293.2.)

“[T]his title” is title 9 of part 3 of the Code of Civil Procedure, which contains statutes regulating arbitration. Part 2, title 14, chapter 6 of the Code of Civil Procedure deals with costs awards in civil litigation generally. Its provisions include these:

“Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.” (Code Civ. Proc., § 1021.)

“‘Prevailing party’ includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. If any party recovers other than monetary relief and in situations other than as specified, the ‘prevailing party’ shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed, may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034.” (Code Civ. Proc., § 1032, subd. (a)(4).)

“Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (Code Civ. Proc., § 1032, subd. (b).)

Goraya was a defendant in whose favor a dismissal was entered. On its own, under Code of Civil Procedure section 1032, this fact would mean he was the prevailing party. (In this respect, Code of Civil Procedure section 1032 contrasts with Civil Code section 1717, under which the dismissal would mean there was no prevailing party on the dismissed pleading.) But at the same time, each party was a defendant where neither plaintiff nor defendant obtained any relief, which would mean they were both prevailing parties. Code of Civil Procedure section 1032 thus does not yield any definite result on the prevailing party question, so this case must be one of those “situations other than as specified” in which the court is to exercise its discretion. Once again, we cannot say the court abused its discretion in this situation, in which each party made claims against the other and both failed. (If anything, the analysis is worse for Stephens here, since Stephens’s dismissal of her cross-complaint is treated as a win for Goraya here, but would be neutral under Civil Code section 1717. )

Stephens further maintains, in effect, that the trial court should have made the prevailing party determination based on the court proceedings alone, and more specifically her successful opposition to Goraya’s petition to confirm the arbitration award and her successful request that the court vacate the award; and it should not have considered what happened in the arbitration proceedings.

Stephens has cited no authority for this notion, and it does not stand to reason. Reason indeed does tell us that Goraya did not prevail in his claim for his commission even though he obtained an arbitration award, because the court refused to confirm the award and vacated it, leaving him with no recovery in the end. And this means, conversely, that Stephens did prevail on Goraya’s claims against her. But reason also tells us that Stephens did not prevail in her claims against Goraya. The arbitrator rejected them, and after the arbitrator’s decision was vacated, Stephens chose not to pursue the matter further: She did not ask the court to order a rehearing in arbitration and she voluntarily dismissed her cross-complaint. We see no reason why the trial court should have disregarded these matters when deciding whether or not she was a prevailing party.

Finally, Stephens argues that her voluntary dismissal of her cross-complaint against Goraya is irrelevant to the issue of attorney’s fees because she never served it on Goraya. But under Code of Civil Procedure section 1032, a prevailing party includes “a defendant in whose favor a dismissal is entered” (Code Civ. Proc., § 1032, subd. (a)(4)); “defendant” includes “a person against whom a complaint is filed,” (Code Civ. Proc., § 1032, subd. (a)(2) [italics added]); and a complaint “includes a cross-complaint” (id., subd. (a)(1)). There is no indication that the complaint or cross-complaint must have been served as well as filed before its dismissal would mean the defendant was a prevailing party.

Similarly, under Civil Code section 1717, “[w]here an action has been voluntarily dismissed …, there shall be no prevailing party for purposes of this section.” (Civ. Code, § 1717, subd. (b)(2) [italics added].) And “[a] civil action is commenced by filing a complaint with the court.” (Code Civ. Proc., § 411.10 [italics added].) There is no indication that a voluntary dismissal would mean there was no prevailing party only if there was service of the complaint in addition to commencement of the action.

Either way, the failure of the plaintiff or cross-complainant to serve the subsequently dismissed pleading would not strengthen that party’s claim to be prevailing.

DISPOSITION

The order denying Stephens’s motion for attorney’s fees is affirmed. Costs on appeal are awarded to respondent Mohammad Goraya.

Filed 1/7/20 El-Yorba Linda, LLC v. City of Yorba Linda CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

EL-YORBA LINDA, LLC,

Appellant,

CITY OF YORBA LINDA et al.,

Respondents.

G056122

(Super. Ct. No. 30-2016-00844452)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gregory H. Lewis, Judge. Dismissed as moot. Appellant’s request for judicial notice. Granted. Respondents’ request for judicial notice. Denied.

Newmeyer & Dillion, Charles S. Krolikowski, Michael W. Shonafelt and Jason Moberly Caruso for Appellant.

Rutan & Tucker, Todd O. Litfin and Alan B. Fenstermacher for Respondents.

* * *

INTRODUCTION

El-Yorba Linda, LLC (El-Yorba Linda) proposed to build a multi-unit housing development on property it owned in the City of Yorba Linda, California (the City). The City’s Planning Commission (planning commission) denied El Yorba Linda’s request for approval of the project. El Yorba Linda appealed to the Yorba Linda City Council (City Council), and that body upheld the planning commission’s decision. El-Yorba Linda filed a combined petition for writ of mandate and complaint against the City in the trial court. The trial court denied the petition for writ of mandate. El Yorba Linda then voluntarily dismissed the remaining causes of action. The trial court entered judgment for the City on the petition for writ of mandate, and El-Yorba Linda appealed from the judgment.

During the pendency of this appeal, El-Yorba Linda proposed another multi-unit housing project to be built on the same property. The planning commission approved the new project, and that decision was not appealed.

We asked the parties for supplemental briefing on the issue of whether the approval of a different project by El-Yorba Linda on the same site mooted its appeal from the denial of the original project. El-Yorba Linda argues there remains a live controversy because this court’s determination of the propriety of the City’s failure to approve the original project would affect El Yorba Linda’s ability to recover damages for inverse condemnation. But there is no longer a cause of action pending for inverse condemnation; in order to appeal from the denial of the petition for writ of mandate, El Yorba Linda dismissed all of its remaining claims, including its claim for damages. Therefore, any decision by this court would constitute an improper and potentially imprudent advisory opinion.

Because events subsequent to the issuance of the judgment have made it impossible for this court to grant El-Yorba Linda any effective relief, this appeal must be dismissed.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

El-Yorba Linda owns a 4.99 acre parcel of real property at the southeast corner of the intersection of Mariposa Avenue and Lakeview Avenue in Yorba Linda (the Property). In 2012, the City rezoned the Property to allow 30 dwelling units per acre.

El-Yorba Linda proposed to develop a 139-unit apartment complex on the Property (the Project), reserving 10 units for rental as affordable housing units. The Project fell within the City’s density allowances and included various outdoor amenities. As part of the approval process, El-Yorba Linda submitted to the planning commission a proposed land use application and requested (1) approval of a tentative tract map that would consolidate five existing parcels on the Property into a single lot on which the Project would be built; (2) approval of a design review for the planning, grading, and architectural design of the Project; and (3) certification of a subsequent environmental impact report (SEIR) addressing potential environmental impacts of the Project.

In a resolution that included factual findings, the planning commission denied the tentative tract map, design review, and final SEIR. El-Yorba Linda appealed the planning commission’s decision to the City Council.

On January 19, 2016, the City Council upheld the planning commission’s decision to deny the tentative tract map, design review, and SEIR, without prejudice, by a vote of 4-1. Like the planning commission, the City Council issued a resolution that included specific findings regarding each of the three elements of El Yorba Linda’s request.

El-Yorba Linda filed a combined petition for writ of mandate and complaint on April 5, 2016 to challenge the City’s adverse decision. The complaint asserted three causes of action: declaratory relief, injunctive relief, and damages for inverse condemnation.

On July 7, 2017, the trial court denied the petition for writ of mandate. On January 9, 2018, El-Yorba Linda voluntarily dismissed without prejudice the causes of action for injunctive and declaratory relief and damages based on inverse condemnation. Judgment in favor of the City and against El-Yorba Linda on the petition for writ of mandate was entered on January 26, 2018. El Yorba Linda filed a timely notice of appeal from the judgment.

Shortly thereafter, El-Yorba Linda submitted a different proposal to the planning commission for the development of the Property. On July 25, 2018, pursuant to a series of resolutions, the planning commission approved the new project. No one challenged the planning commission’s approval, and it is now final.

DISCUSSION

Before addressing the merits of the appeal, we must first determine whether the appeal has been mooted by subsequent events and, if so, whether the appeal should be dismissed.

“‘“It is well settled that an appellate court will decide only actual controversies and that a live appeal may be rendered moot by events occurring after the notice of appeal was filed. We will not render opinions on moot questions or abstract propositions, or declare principles of law which cannot affect the matter at issue on appeal.”’” (Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1205; see Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.)

“‘[A]n appeal is moot if “‘the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief.’”’” (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2016) 2 Cal.App.5th 586, 590.) When the event that moots the underlying controversy is initiated by the appellant, as opposed to legislative or administrative action or simply by happenstance, the appropriate remedy is to dismiss the appeal, not to vacate or affirm the trial court’s ruling. Appellate authority on this point—both state and federal—is consistent and plentiful. (See, e.g., id. at p. 591, and cases cited therein.)

El-Yorba Linda is asking this court to direct the trial court to grant its petition for writ of mandate. That writ in turn would direct the City “to take any and all actions necessary to promptly set aside and rescind its actions of January 19, 2016, and to promptly schedule the Project for review and approval by the City Council.” But the documents El-Yorba Linda asked us to judicially notice establish it initiated the approval process for a different project, the project was approved, and no legal challenges to that approval were raised. There is, quite simply, no relief El Yorba Linda can obtain in connection with the Project, as it was originally proposed.

As El-Yorba Linda argues, even when events subsequent to the judgment deprive an appellate court of the ability to grant effective relief, it may nevertheless exercise its inherent discretion and address the merits where (1) material questions for the court’s determination remain, (2) where the “‘pending case poses an issue of broad public interest that is likely to recur,’” or (3) where “‘there is a likelihood of recurrence of the controversy between the same parties or others.’” (In re N.S. (2016) 245 Cal.App.4th 53, 59.) None of these criteria is present here.

First, no material questions remain for our determination. The planning commission approved El-Yorba Linda’s proposal for a different project on the Property, and that decision is now final. (See In re David B. (2017) 12 Cal.App.5th 633, 653 654 & fn. 12; Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1180 1181.)

In Eye Dog Foundation v. State Board of Guide Dogs for the Blind, supra, 67 Cal.2d at page 541, the California Supreme Court held the remaining material questions exception to dismissal may apply “to actions for declaratory relief upon the ground that the court must do complete justice once jurisdiction has been assumed [citation], and the relief thus granted may encompass future and contingent legal rights.” In the present case, El-Yorba Linda voluntarily dismissed the cause of action for declaratory relief. Even if this court were to consider the merits of El-Yorba Linda’s appeal, El Yorba Linda could not obtain “complete justice” because it no longer has the right to develop the Project (since another project proposed by El-Yorba Linda has been approved for development of the Property).

Second, while environmental protection and the housing shortage are unquestionably issues that affect the public at large, cases involving findings regarding environmental impact reports are by their nature highly fact specific. A decision on the merits of this case would have little or no applicability in other cases. (See MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 215.)

Third, there is no likelihood of a recurrence of the controversy between these parties. El-Yorba Linda initiated a different project for the Property and the planning commission approved that new project. The dispute involving the tentative tract map, design review, and SEIR for the Project is over.

In its opening brief, El-Yorba Linda explains why it pursued a new project while the appeal of the denial of the Project was pending: “The City’s years-long obstruction and unlawful conduct that is the subject of this action forced ETCO to choose between no development of the Property at all, or applying for a project with a smaller footprint. (Compare RJN, Exh.1, with 1 AR 38-85, 12 AR 3234, 21 AR 6012.) [El Yorba Linda] reasonably chose the latter, in order to mitigate its damages. [El Yorba Linda] should therefore be permitted to present evidence on remand of the smaller footprint and necessarily smaller gain associated with the Revised Project, in support of an affirmative claim for damages against the City.” El-Yorba Linda had a third option—to pursue this appeal and win the right to develop the Property based on the Project as originally proposed.

In the respondent’s brief, the City takes the position that while “the City’s approval of the Revised Project does in fact moot [El Yorba Linda]’s Inverse [Condemnation] claim, it does not appear to affect the Writ Claim, which is the only subject of this appeal.” The City adds, however, that if this court “upholds the trial court’s ruling and dismisses this appeal,” this court should direct the trial court to dismiss the entire action with prejudice, citing Everly Enterprises, Inc. v. Altman (1960) 54 Cal.2d 761, 765, and American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 217. The City made this request to assure that El-Yorba Linda cannot resurrect the cause of action for inverse condemnation that it voluntarily dismissed without prejudice.

In its supplemental letter brief, the City changed course and now asks that this court “deny the appeal in its entirety and affirm the trial court’s [decision] in all respects.” The City cites no authority for the notion that we can dismiss an appeal as moot and still affirm the judgment on the merits. At oral argument, the City’s counsel indicated his preference for an affirmance on the merits over a dismissal based on mootness. As explained ante, however, the proper remedy when the relief sought has been rendered moot is not to affirm or vacate the underlying judgment, but to dismiss the appeal, leaving the judgment untouched, as if it had never been appealed in the first place.

DISPOSITION

The appeal is dismissed. In the interests of justice, all parties shall bear their own costs on appeal.

DUNNING, J.*

WE CONCUR:

O’LEARY, P. J.

MOORE, J.

*Retired Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Filed 1/7/20 P. v. Thompson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

TYNICKIA THOMPSON,

Defendant and Appellant.

G057822

(Super. Ct. No. 96CF1505)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Kimberly Menninger, Judge. Affirmed.

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

Xavier Becerra, Attorney General, and Meredith S. White, Deputy Attorney General, for Plaintiff and Respondent.

* * *

Defendant Tynickia Thompson appeals from a post-judgment order denying her Penal Code section 1170.95 petition to vacate her murder conviction and for resentencing. We appointed counsel to represent her on appeal.

In conducting his analysis of potential appellate issues, appointed counsel informed us in his declaration that he had “thoroughly reviewed the record” and consulted with a staff attorney at Appellate Defenders, Inc. Counsel then filed a brief pursuant to the procedures set forth in People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738. While not arguing against his client, counsel set forth the facts of the case and advised us he was unable to find an issue to argue on her behalf. Thompson was given the opportunity to file written argument on her own behalf; she has not done so.

As a result of our independent record review, we identified two issues that could, if resolved in Thompson’s favor, result in reversal of the judgment. We therefore invited counsel to file supplemental letter briefs on the following issues:

(1) Penal Code section 1170.95(c) requires that if appellant requests the appointment of counsel, “the court shall appoint counsel to represent the petitioner.” Since Thompson requested the appointment of counsel in her petition, does the superior court’s failure to do so constitute reversible error?

(2) As a part of the factual basis for her two pleas of guilty to first degree murder, Thompson offered the trial court the following: “In Orange County on May 8, 1996 I intentionally killed John and Helen Hancock with a .38 handgun. These two murders took place during the commission of robbery and burglary and are murders of the first degree.” Since the appellate record contains no other information identifying the legal theory underlying Thompson’s murder convictions, does this factual basis establish the prima facie showing required by Penal Code section 1170.95(c)?

After reviewing the entire record, including the parties’ supplemental briefs, we conclude that Thompson did not establish a prima facie showing that she was entitled to the relief she sought. As a result, even if the trial court erred by failing to appoint counsel in the face of her request, any such error was harmless. We find no other arguable appellate issues. We therefore affirm the judgment.

FACTS

The relevant facts can be briefly summarized.

In 1996, Thompson was charged with two counts of first-degree murder, arson, and conspiracy. It was also alleged she personally used a firearm to murder her victims. There was a special circumstance of multiple murder attached to the murder counts. In 1999, while she was represented by the public defender’s office, Thompson pleaded guilty to those charges and admitted that the special allegations were true. As a factual basis for her guilty pleas, she admitted in writing that “[i]n Orange County on May 8, 1996, I intentionally killed John and Helen Hancock with a .38 handgun. These two murders took place during the commission of robbery and burglary and are murders of the first degree.” Thompson was then sentenced to life in prison without the possibility of parole, a sentence she continues to serve.

In 2019, Thompson filed a petition in the Orange County Superior Court, pursuant to recently-enacted Penal Code section 1170.95, requesting that she be resentenced. She asserted in her petition that she “pled guilty or no contest to 1st or 2nd degree murder in lieu of going to trial because I believed I could have been convicted of 1st or 2nd degree murder at trial pursuant to the felony murder rule or the natural and probable consequences doctrine.”

On April 18, 2019, the trial court denied Thompson’s petition without conducting a hearing or appointing counsel to assist her, finding that it “does not set forth a prima facie case for relief under the statute.”

Thompson appeals from that denial.

DISCUSSION

Following the Wende guidelines, we have reviewed the entire record which includes the trial court’s recent Minute Order ruling as well as the Tahl form executed by Thompson at the time she entered her guilty pleas. Thompson’s counsel directed us to only these possible appellate issues: “Did the trial court err in denying appellant’s petition for resentencing pursuant to section 1170.95? . . . Was appellant convicted of either felony murder or murder under a natural and probable consequences theory?” We have considered these issues along with those we asked the parties to brief. With them in mind, we turn our attention to the brief history of Penal Code section 1170.95.

Effective January 1, 2019, the Legislature effected a sea change in California jurisprudence regarding murder when it passed Senate Bill 1437. The purpose of the law was set forth in the legislation: “There is a need for statutory changes to more equitably sentence offenders in accordance with their involvement in homicides.” (Stats. 2018, ch. 1015, § 1, subd. (b).) At the same time, the Legislature expressed its intent as to the scope of the new statutory scheme: “It is necessary 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.” (Id., § 1, subd. (f), italics added.)

Penal Code section 1170.95 was enacted pursuant to Senate Bill 1437. The new law is retroactive. (People v. Martinez (2019) 31 Cal.App.5th 719, 725.) Persons convicted of murder as aiders and abettors, or under a natural and probable consequences theory of liability, may petition the superior court for relief. Thompson has filed such a petition here.

The section 1170.95 resentencing process potentially involves a two-step analysis. The first step requires the trial court to determine whether the petitioner has set forth a prima facie claim for relief. If that step is satisfied, as a second step, the court “shall issue an order to show cause.” (Pen. Code, § 1170.95, subd. (c).) Although its minute order lacks detail, it appears to us the trial court here did not get past the first step as it found that “[t]he petition does not set forth a prima facie case for relief under the statute.” This finding is well-founded since, in the factual basis Thompson offered to the court as a basis for her guilty pleas, she admitted that she was “the actual killer” of both homicide victims, and that she “intentionally” used a .38 caliber handgun to murder them. There is no factual ambiguity or uncertainty here. Given the Legislature’s unmistakable statement of intent, as noted above, to exclude an “actual killer” from relief under Penal Code section 1170.95, the fact that Thompson murdered her victims as she also committed robbery and burglary is of no consequence. Thompson is statutorily ineligible for the relief she seeks. The trial court did not err in its ruling.

We note the mandatory nature of the language chosen by the Legislature in Penal Code section 1170.95, subdivision (c), related to the appointment of counsel: ‘“If the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.”’ The only condition precedent to the appointment of counsel is the petitioner’s request for such appointment. “If the statutory language is unambiguous, then its plain meaning controls.” (People v. Ruiz (2018) 4 Cal.5th 1100, 1106.) Nonetheless, due to Thompson’s inability to make a prima facie showing that she is entitled to relief based on the specific facts of this case, we need not determine whether the trial court erred here by failing to appoint counsel to assist her. If that failure constituted error, any such error would, in light of Thompson’s admissions, be harmless under any applicable standard of review.

DISPOSITION

The judgment is affirmed.

GOETHALS, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

Filed 1/7/20 P. v. Cabrera CA6

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

ISMAEL MARTINEZ CABRERA,

Defendant and Appellant.

H043472

(Santa Clara County

Super. Ct. No. C1514191)
Defendant Ismael Martinez Cabrera challenges two conditions of mandatory supervision imposed during his sentencing on convictions for transporting heroin and methamphetamine for sale (Health & Saf. Code, §§ 11352, subd. (a), 11379, subd. (a)). The challenged conditions subject electronic devices in defendant’s possession to warrantless search and require him to provide passwords for those devices whenever requested by law enforcement. Defendant argues the conditions are unreasonable and overbroad. We previously affirmed the judgment. The Supreme Court granted review and transferred the matter to us with directions to vacate our previous decision and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.). For the reasons stated here, we will again affirm the judgment.

I. TRIAL COURT PROCEEDINGS
II.
This factual summary is based on police reports in the record as defendant waived preparation of a full probation report. Multiple law enforcement agencies investigated a conspiracy to distribute heroin and methamphetamine “in the form of a seven-day-per-week heroin delivery service between San Joaquin and Santa Clara Counties.” One member of the conspiracy received “regular telephone orders for heroin,” which would then be delivered to customers in Santa Clara County. Based on that investigation, law enforcement concluded that defendant was the “most senior driver/courier” for the organization. Defendant had registered several delivery vehicles in derivations of his name on behalf of the organization.

Law enforcement obtained search and arrest warrants covering several addresses in Stockton and San Jose, and several individuals (including defendant). During surveillance before the search warrants were executed, federal Drug Enforcement Agency agents noticed a car leave one of the Stockton addresses listed in the warrant. Agents followed the car to a gas station in San Jose and contacted the driver, who was one of the individuals named in an arrest warrant. A car search uncovered approximately 100 small balloons in a hidden compartment; some balloons contained heroin and others contained methamphetamine. Execution of the search warrants produced money, firearms, suspected drug ledgers, digital scales, and several cellular phones.

Defendant and five codefendants were charged in a single felony complaint with several drug-related crimes. Defendant was charged with four counts of transporting methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a); counts 1, 3, 6 & 8), five counts of transporting heroin for sale (Health & Saf. Code, § 11352, subd. (a); counts 2, 4, 5, 7 & 9), two counts of possessing heroin for sale (Health & Saf. Code, § 11351; counts 10 & 15), two counts of transporting a controlled substance between noncontiguous counties (Health & Saf. Code, §§ 11352, subd. (b), 11379, subd. (b); counts 11 & 13), two counts of possessing methamphetamine for sale (Health & Saf. Code, § 11378; counts 12 & 16), three counts of using a false compartment to store controlled substances (Health & Saf. Code, § 11366.8, subd. (a); counts 14, 18 & 19), and one count of maintaining a place to sell heroin and methamphetamine (Health & Saf. Code, § 11366; count 17).

As part of a negotiated disposition, defendant pleaded no contest to three counts of transporting heroin for sale (Health & Saf. Code, § 11352, subd. (a); counts 2, 4 & 5), and one count of transporting methamphetamine for sale (Health & Saf. Code, § 11379, subd. (a); count 1). The trial court sentenced defendant to the upper term of five years for count 2, with two years to be served in county jail and the remaining three years to be spent on mandatory supervision. (Pen. Code, § 1170, subd. (h)(5).) The trial court imposed concurrent upper term sentences for the remaining three convictions.

Defense counsel objected at sentencing to two proposed supervision conditions related to searches of defendant’s electronic devices. The court asked whether electronic devices had been involved in the case, and the prosecutor responded that the case was an “extensive wire tap investigation that involved hundreds of calls regarding narcotic sales every day during the course of a several month investigation.” Defense counsel argued the conditions were overbroad and unreasonable, contending that the use of a cellular phone in a crime does not establish a “sufficient nexus that he gives up all privacy in any electronic communication.”

As imposed at the sentencing hearing, the first electronic device condition provides that defendant’s “electronic devices, including but not limited to cell phones, laptop computers[,] and notepads will be subject to a forensic analysis search.” The second electronic device condition states: “The defendant is to provide the passwords to any of these electronic devices within his custody and control and shall submit those devices to search without the necessity of a warrant whenever requested by any police officer.” (The text of the conditions in the summary probation report does not materially differ from the oral pronouncement.)

III. DISCUSSION
IV.
Defendant’s original briefing argued the two conditions related to electronic devices were unreasonable under the principles articulated in People v. Lent (1975) 15 Cal.3d 481 (Lent), and were also unconstitutionally overbroad. In his supplemental brief filed after the matter was transferred from the Supreme Court, he argues those two conditions must be stricken under the reasoning of Ricardo P. We note at the outset that mandatory supervision is more akin to parole than probation, because it is part of a felony sentence imposed after probation has been denied or revoked. (People v. Martinez (2014) 226 Cal.App.4th 759, 763 (Martinez).) We therefore analyze conditions imposed as terms of mandatory supervision in the same manner as parole conditions. (Ibid.)

A. REASONABLENESS AND RICARDO P.
B.
1. Ricardo P.
2.
Ricardo was declared a ward of the court after he admitted to participating in two residential burglaries. (Ricardo P., supra, 7 Cal.5th at p. 1115.) According to the probation report, Ricardo told the probation officer he was not thinking when he committed the burglaries and had “ ‘stopped smoking marijuana after his arrest because he felt that [it] did not allow him to think clearly.’ ” (Id. at p. 1116.) The juvenile court placed him on probation, and imposed conditions requiring Ricardo to submit any electronic devices in his control to warrantless search. Addressing a Lent objection, the juvenile court found the condition reasonably related to preventing future crime because “ ‘minors typically will brag about their marijuana usage … by posting on the Internet,’ ” and Ricardo’s statement to the probation officer had “ ‘made reference to the fact that marijuana was involved in the commission of this offense.’ ” (Id. at p. 1117.)

The Supreme Court granted review. The court noted the Lent test has three prongs that must be analyzed when a probation condition is challenged as unreasonable: whether the condition has a relationship to the crime of which the probationer was convicted; whether the condition relates to conduct that is not itself criminal; and whether the condition requires or forbids conduct that is reasonably related to future criminality. (Ricardo P., supra, 7 Cal.5th at p. 1119.) The court confirmed that a probation condition’s reasonableness is reviewed on appeal for abuse of discretion. Importantly, the court assumed the first and second Lent requirements were satisfied, focusing its analysis solely on whether the electronic device search condition governed conduct reasonably related to future criminality. (Id. at p. 1119.) The majority interpreted the third Lent prong to require a “degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Id. at p. 1122.)

Applying that standard, the Ricardo P. court found proportionality lacking because the burden of the condition was very high while the legitimate interests to be served were low. “[N]othing in the record suggests that Ricardo has ever used an electronic device or social media in connection with criminal conduct.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) The court made clear, however, that its decision “does not categorically invalidate electronics search conditions.” “In certain cases, the probationer’s offense or personal history may provide the juvenile court with a sufficient factual basis from which it can determine that an electronics search condition is a proportional means of deterring the probationer from future criminality.” (Id. at pp. 1128–1129.)

3. The Conditions Here Are Reasonable
4.
In his original briefing, defendant “concede[d] that certain types of cellphones could not meet the Lent test” because “certain types of cellphones were used to facilitate the drug courier enterprise here.” But he contended, without citation to the record, that smartphones are generally not an integral part of drug courier enterprises and argued that only “prepaid disposable cellphones [that] are the choice of drug dealers” should be regulated. The problem with defendant’s argument is that a smartphone was seized from one of the addresses during the warrant searches, providing support for a conclusion that smartphones were involved in the criminal operation.

Defendant’s supplemental brief focuses on electronic devices other than cellular phones. He argues that under Ricardo P., the electronic device search condition must be stricken because its reference to electronic devices other than cellular phones means the condition has no relationship to the crimes of which defendant was convicted. But Ricardo P. involved a case where there was no connection whatsoever between the condition and the probationer’s crime. By contrast, here it is undisputed that defendant used an electronic device (specifically a cellular phone) in committing the crime of which he was convicted. As we reasoned in our original opinion, though it appears cellular phones were the primary means of communication for the drug courier enterprise, individuals can communicate using a variety of electronic devices. Limiting the mandatory supervision condition to cellular phones would allow the condition to be easily circumvented by using a different type of electronic device to communicate about illegal activities. Defendant has not demonstrated that the condition has no relationship to the crimes he committed. And allowing searches to a broader variety of electronic devices is reasonably related to deterring future criminal conduct by defendant.

Regarding the requirement to provide passwords to his electronic devices to facilitate a search, defendant argues the Ricardo P. court found a similar condition not reasonably related to deterring future criminality. But the password condition is related to defendant’s conviction offenses (in that he used an electronic device in the drug courier enterprise). Because the password condition is based on the crimes defendant committed, it is valid under the first prong of Lent without regard to the third prong discussed in Ricardo P.

C. OVERBREADTH
D.
Because defendant raised no new arguments related to overbreadth in his supplemental brief, we re-file a substantially similar version of our original overbreadth analysis here. We review de novo whether a mandatory supervision condition is unconstitutionally overbroad. (Martinez, supra, 226 Cal.App.4th at p. 765.) A condition is unconstitutionally overbroad only if the limitations placed on a defendant’s constitutional rights are not closely tailored to the purpose of that condition. (In re Sheena K. (2007) 40 Cal.4th 875, 890.) In reviewing the closeness of the fit between the legitimate purpose of a condition and the burden it imposes on a defendant’s constitutional rights, we are mindful that “perfection in such matters is impossible, and that practical necessity will justify some infringement.” (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.)

1. First Amendment

Defendant argues the challenged conditions limit his First Amendment right to free speech. (Citing In re Stevens (2004) 119 Cal.App.4th 1228.) But Stevens involved restrictions on a parolee’s access to the Internet (Id. at pp. 1231–1232), whereas here the conditions allow unfettered access to electronic devices and merely make those devices subject to search. Defendant has not demonstrated that his First Amendment rights are curtailed by the challenged conditions.

2. Fourth Amendment

Defendant contends the challenged conditions limit his Fourth Amendment right to be free from unreasonable searches, and are unconstitutionally overbroad because they are not closely tailored to their purpose. “[P]arolees and probationers retain some expectation of privacy, albeit a reduced one.” (In re Jaime P. (2006) 40 Cal.4th 128, 137.) And “parolees have fewer expectations of privacy than probationers, because parole is more akin to imprisonment than probation is to imprisonment.” (Samson v. California (2006) 547 U.S. 843, 850 [finding California law subjecting all parolees to warrantless searches did not violate the Fourth Amendment].) The California Supreme Court has determined that “probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.” (People v. Robles (2000) 23 Cal.4th 789, 795.) The concept applies with full force to mandatory supervision search conditions given that individuals under mandatory supervision have a lower expectation of privacy than probationers.

While defendant does retain some expectation of privacy, that expectation is greatly diminished until he completes his term of mandatory supervision. That diminished expectation of privacy is markedly different from the broader privacy guaranteed under the Fourth Amendment to individuals who are not serving sentences or on grants of probation or parole. It is that pre-conviction expectation of privacy that was at issue in Riley v. California (2014) 573 U.S. 373 (Riley), where the United States Supreme Court announced the general rule that police may not conduct a warrantless search of a cellular phone seized incident to an arrest. (Id. at p. 386.)

It is undisputed that defendant used an electronic device while acting as a courier in transporting controlled substances for sale. The purpose of the challenged conditions is to prevent defendant from using electronic devices in the future to buy, sell, or transport controlled substances. Defendant’s use of an electronic device in committing the crimes that led to his conviction, as well as his status as an individual on the equivalent of parole instead of probation, distinguishes this case from those where similar probation conditions have been rejected as unconstitutionally overbroad. (See In re P. O. (2016) 246 Cal.App.4th 288, 291–293, 298 [modifying electronic device search juvenile probation condition because condition bore no relationship to public intoxication adjudication]; People v. Appleton (2016) 245 Cal.App.4th 717, 719–720, 728–729.) Here, robust access to defendant’s electronic devices is critical to ensure that he does not return to committing crimes while on mandatory supervision.

Defendant argues that under the challenged conditions his electronic devices could be searched for “banking and business information, medical and insurance information, games, music libraries, electronic books, magazines, and newspapers, and information related to his criminal case, including communications with his attorney.” But defendant is protected in the enforcement of the mandatory supervision conditions because warrantless searches carried out under a parole search condition must not be “conducted in an arbitrary, capricious, or harassing manner.” (People v. Schmitz (2012) 55 Cal.4th 909, 923.)

Given the facts of this case, we conclude that the fit between the legitimate purpose of the mandatory supervision conditions and the burdens they place on defendant’s diminished constitutional expectation of privacy is sufficiently close. The conditions are not unconstitutionally overbroad as applied to defendant.

V. DISPOSITION
VI.
The judgment is affirmed.

____________________________________

Grover, J.

WE CONCUR:

____________________________

Premo, Acting P. J.

____________________________

Bamattre-Manoukian, J.

H043472 – People v. Cabrera

Case Number: BC648395
STATE OF CALIFORNIA ET AL VS BRUCE FISHMAN, M.D.
Filing Courthouse: Stanley Mosk Courthouse

Filing Date: 01/27/2017
Case Type: Other Complaint (non-tort/non-complex) (General Jurisdiction)
Status: Pending

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03/17/2020 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012
Status Conference

02/02/2021 at 08:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012
Final Status Conference

02/08/2021 at 09:30 AM in Department 47 at 111 North Hill Street, Los Angeles, CA 90012
Jury Trial

BRUCE E. FISHMAN M.D. INC. A CALIFORNIA MEDICAL PROFESSIONAL CORPORATION – Defendant

CALIFORNIA STATE OF CALIFORNIA – Plaintiff

CITIES OF LOS ANGELES AND BAKERFIELD THE SCHOOL DISTRICTS OF LOS ANGELES – Plaintiff

COUNTIES OF LOS ANGELES KERN SAN BERNARDINO – Plaintiff

FAMILY URGENT CARE & INDUSTRIAL MEDICAL CLINIC INC. – Defendant

FISHMAN M.D. BRUCE – Defendant

HEALTH CARE DISTRICT OF TEHACHAPI – Plaintiff

KAPP HOWARD A. ESQ. – Attorney for Defendant

SCHOOL DISTRICTS OF LOS ANGELES MCFARLAND – Plaintiff

TYM RONALD DURWIN – Attorney for Plaintiff

Documents Filed (Filing 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:
06/18/2018 01/29/2018

12/03/2019 Certificate of Mailing for ((Court Order re: Peremptory Challenge to Judicial Officer) of 12/03/2019)
Filed by Clerk

12/03/2019 Minute Order ( (Court Order re: Peremptory Challenge to Judicial Officer))
Filed by Clerk

11/27/2019 Challenge To Judicial Officer – Peremptory (170.6)
Filed by California, State of California (Plaintiff)

11/14/2019 Certificate of Mailing for ((Non-Appearance Case Review) of 11/14/2019)
Filed by Clerk

11/14/2019 Minute Order ( (Non-Appearance Case Review))
Filed by Clerk

11/13/2019 Notice of Related Case
Filed by Bruce E. Fishman, M.D., Inc., a California Medical Professional Corporation (Defendant)

11/05/2019 Proof of Service (not Summons and Complaint)
Filed by California, State of California (Plaintiff)

11/05/2019 Response ( of Department of Industrial Relations and the Administrative Director George Parisotto in Opposition to Notice of Related Cases)
Filed by California, State of California (Plaintiff)

10/30/2019 Case Management Order
Filed by Clerk

10/30/2019 Minute Order ( (Order to Show Cause Re: Dismissal))
Filed by Clerk

10/29/2019 Declaration (of Ronald D. Tym Relating to OSC)
Filed by California, State of California (Plaintiff); Counties of Los Angeles, Kern, San Bernardino (Plaintiff); Cities of Los Angeles and Bakerfield, The School Districts of Los Angeles (Plaintiff) et al.

10/17/2019 Declaration (of Howard A Kapp re OSC)
Filed by Bruce E. Fishman, M.D., Inc., a California Medical Professional Corporation (Defendant)

04/18/2019 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by California, State of California (Plaintiff); Counties of Los Angeles, Kern, San Bernardino (Plaintiff); Cities of Los Angeles and Bakerfield, The School Districts of Los Angeles (Plaintiff) et al.

04/18/2019 Minute Order ( (Order to Show Cause Re: Dismissal))
Filed by Clerk

04/15/2019 Brief (of Plaintiffs Regarding April 18, 2019 OSC)
Filed by California, State of California (Plaintiff); Counties of Los Angeles, Kern, San Bernardino (Plaintiff); Cities of Los Angeles and Bakerfield, The School Districts of Los Angeles (Plaintiff) et al.

04/08/2019 Declaration (of Howard A. Kapp regarding Stay)
Filed by Bruce E. Fishman, M.D., Inc., a California Medical Professional Corporation (Defendant)

03/18/2019 Notice (of Unavailability of Counsel)
Filed by California, State of California (Plaintiff); Counties of Los Angeles, Kern, San Bernardino (Plaintiff); Cities of Los Angeles and Bakerfield, The School Districts of Los Angeles (Plaintiff) et al.

10/18/2018 Minute order entered: 2018-10-18 00:00:00
Filed by Clerk

10/18/2018 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore (Vienna Nguyen #13137)
Filed by Bruce Fishman, M.D. (Defendant)

10/18/2018 Minute Order ((Legacy Event Type : Order to Show Cause))
Filed by Clerk

10/11/2018 Request for Judicial Notice (re Memorandum in Support of Stay Order)
Filed by Bruce Fishman, M.D. (Defendant); Bruce E. Fishman, M.D., Inc., a California Medical Professional Corporation (Defendant); Family Urgent Care & Industrial Medical Clinic, Inc. (Defendant)

10/11/2018 Memorandum (in Support of Stay Order; Declaration of Howard A. Kapp; Concurrent with Request for Judicial Notice)
Filed by Bruce Fishman, M.D. (Defendant); Bruce E. Fishman, M.D., Inc., a California Medical Professional Corporation (Defendant); Family Urgent Care & Industrial Medical Clinic, Inc. (Defendant)

09/19/2018 PLAMTWFS’ BRIEF REGARDING OSC: STAY OF CASE

09/19/2018 Brief
Filed by California, State of California (Plaintiff); Counties of Los Angeles, Kern, San Bernardino (Plaintiff); Cities of Los Angeles and Bakerfield, The School Districts of Los Angeles (Plaintiff) et al.

09/13/2018 Minute Order

09/13/2018 Minute order entered: 2018-09-13 00:00:00
Filed by Clerk

09/12/2018 CIVIL DEPOSIT

09/12/2018 Receipt
Filed by California, State of California (Plaintiff)

07/24/2018 Notice of Lien
Filed by Bruce Fishman, M.D. (Defendant); Bruce E. Fishman, M.D., Inc., a California Medical Professional Corporation (Defendant); Family Urgent Care & Industrial Medical Clinic, Inc. (Defendant)

07/24/2018 NOTICE OF LIEN AND RELATED CASE

07/11/2018 ANSWER TO COMPLAINT

07/11/2018 Answer
Filed by Bruce Fishman, M.D. (Defendant); Bruce E. Fishman, M.D., Inc., a California Medical Professional Corporation (Defendant); Family Urgent Care & Industrial Medical Clinic, Inc. (Defendant)

06/21/2018 FINAL RULING

06/21/2018 Minute Order

06/21/2018 Miscellaneous-Other
Filed by Court

06/21/2018 Minute order entered: 2018-06-21 00:00:00
Filed by Clerk

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 06/18/2018 01/29/2018

06/18/2018 ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

06/18/2018 Minute Order

06/18/2018 Order Appointing Court Approved Reporter as Official Reporter Pro Tempore
Filed by Bruce Fishman, M.D. (Defendant)

06/18/2018 Minute order entered: 2018-06-18 00:00:00
Filed by Clerk

06/04/2018 STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER

06/04/2018 Minute Order

06/04/2018 Stipulation and Order to use Certified Shorthand Reporter
Filed by Bruce Fishman, M.D. (Defendant)

06/04/2018 Minute order entered: 2018-06-04 00:00:00
Filed by Clerk

05/31/2018 CASE MANAGEMENT STATEMENT

05/31/2018 Case Management Statement
Filed by California, State of California (Plaintiff); Counties of Los Angeles, Kern, San Bernardino (Plaintiff); Cities of Los Angeles and Bakerfield, The School Districts of Los Angeles (Plaintiff) et al.

05/25/2018 Reply/Response
Filed by Bruce Fishman, M.D. (Defendant)

05/25/2018 REPLY TO OPPOSITION TO DEMURRER

05/17/2018 Minute Order

05/17/2018 Order
Filed by Court

05/17/2018 Minute order entered: 2018-05-17 00:00:00
Filed by Clerk

05/17/2018 ORDER DENYING THE APPLICATION FOR A WRIT OF ATTACHMENT

05/14/2018 NOTICE OF RULING

05/14/2018 Notice of Ruling
Filed by Bruce Fishman, M.D. (Defendant)

05/11/2018 ORDER DENYING THE APPLICATION FOR A WRIT OF ATTACHMENT

05/11/2018 Order
Filed by Court

05/11/2018 Minute order entered: 2018-05-11 00:00:00
Filed by Clerk

05/11/2018 Minute Order

05/11/2018 ORDER DENYING THE APPLICATION FOR A WRIT OF ATTACHMENT

05/04/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO ATTACHMENT ORDER; DECLARATION OF HOWARD A. KAPP

05/04/2018 Points and Authorities
Filed by Bruce Fishman, M.D. (Defendant)

05/02/2018 Minute Order

05/02/2018 Miscellaneous-Other
Filed by Court

05/02/2018 Minute order entered: 2018-05-02 00:00:00
Filed by Clerk

04/30/2018 STIPULATION TO CONTINUE HEARING ON AND EXTEND FILING DEADLINE FOR REPLY ON APPLICATION FOR WRIT OF ATTACHMENT; ORDER

04/30/2018 Stipulation
Filed by Bruce Fishman, M.D. (Defendant)

04/24/2018 SUPPLEMENT TO PLAINTIFFS’ REPLY IN SUPPORT OF APPLICATION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT OR, IN THE ALTERNATIVE, A TEMPORARY PROTECTIVE ORDER; ETC.

04/24/2018 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF SUPPLEMENT TO PLAINTIFFS’ REPLY IN SUPPORT OF APPLICATION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT OR, IN THE ALTERNATIVE, A TEMPORARY PROTECTIVE ORDER

04/24/2018 Request for Judicial Notice
Filed by California, State of California (Plaintiff); Counties of Los Angeles, Kern, San Bernardino (Plaintiff); Cities of Los Angeles and Bakerfield, The School Districts of Los Angeles (Plaintiff) et al.

04/24/2018 Supplement
Filed by California, State of California (Plaintiff); Counties of Los Angeles, Kern, San Bernardino (Plaintiff); Cities of Los Angeles and Bakerfield, The School Districts of Los Angeles (Plaintiff) et al.

04/20/2018 Minute Order

04/20/2018 Minute order entered: 2018-04-20 00:00:00
Filed by Clerk

04/18/2018 Request for Judicial Notice
Filed by California, State of California (Plaintiff); Counties of Los Angeles, Kern, San Bernardino (Plaintiff)

04/18/2018 Opposition Document
Filed by California, State of California (Plaintiff)

04/18/2018 PLAINTIFFS’ OPPOSITION TO DEMURRER OF DEFENDANTS

04/18/2018 PLAINTIFFS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO DEMURRER

04/17/2018 PLAINTIFFS’ REPLY IN SUPPORT OF APPLICATION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT OR, IN THE ALTERNATIVE, A TEMPORARY PROTECTIVE ORDER; ETC

04/17/2018 Reply/Response
Filed by Plaintiff/Petitioner

04/13/2018 NOTICE OF RELATED CASE

04/13/2018 Notice of Related Case
Filed by Bruce Fishman, M.D. (Defendant)

04/13/2018 Points and Authorities
Filed by Bruce Fishman, M.D. (Defendant)

04/13/2018 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO ATFACHMENT ORDER; ETC

04/12/2018 CASE MANAGEMENT STATEMENT

04/12/2018 Minute Order

04/12/2018 Case Management Statement
Filed by Bruce Fishman, M.D. (Defendant)

04/12/2018 Minute order entered: 2018-04-12 00:00:00
Filed by Clerk

04/05/2018 REQUEST FOR ENTRY OF DEFAULT

04/05/2018 CASE MANAGEMENT STATEMENT

04/05/2018 Request for Entry of Default / Judgment
Filed by Plaintiff/Petitioner

04/05/2018 Case Management Statement
Filed by California, State of California (Plaintiff); Counties of Los Angeles, Kern, San Bernardino (Plaintiff); Cities of Los Angeles and Bakerfield, The School Districts of Los Angeles (Plaintiff) et al.

04/03/2018 SUPPLEMENT TO PLAINTIFFS’ APPLICATION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT OR, IN THE ALTERNATIVE, A TEMPORARY PROTECTIVE ORDER; ETC

04/03/2018 Supplement
Filed by California, State of California (Plaintiff); Counties of Los Angeles, Kern, San Bernardino (Plaintiff); Cities of Los Angeles and Bakerfield, The School Districts of Los Angeles (Plaintiff) et al.

04/02/2018 Minute Order

04/02/2018 NOTICE OF DEMURRER AND DEMURRER TO COMPLAINT; ETC

04/02/2018 PLAINTIFFS’ EX PARTE APPLICATION FOR RIGHT TO ATTACH ORDER AND WRIT OF ATTACHMENT OR, IN THE ALTERNATIVE, A TEMPORARY PROTECTIVE ORDER; DECLARATIONS OF RONALD D. TYM, ESQ. AND PATRICK NAZEMI

04/02/2018 NOTICE LIEN (ATTACHMENT)-

04/02/2018 DEFENDANTS’ SUPPLEMENTAL OPPOSITION BRIEF TO APPLICATION FOR EX PARTE WRIT OF ATTACHMENT

04/02/2018 OPPOSITION “ON THE MERITS” TO EX PARTE APPLICATION; DECLARATION OF HOWARD A. KAPP

04/02/2018 Demurrer
Filed by Bruce Fishman, M.D. (Defendant)

04/02/2018 Notice of Lien
Filed by Bruce Fishman, M.D. (Defendant)

04/02/2018 Brief-Supplemental
Filed by Creditor

04/02/2018 Opposition Document
Filed by Defendant/Respondent

04/02/2018 Declaration
Filed by Plaintiff/Petitioner

04/02/2018 Ex Parte Right to Attach Order and Order for Issuance of Writ of Attachment (Nonresident)
Filed by Plaintiff/Petitioner

04/02/2018 Minute order entered: 2018-04-02 00:00:00
Filed by Clerk

04/02/2018 APPLICATION FOR RIGHT TO ATTACH ORDER, TEMPORARY PROTECTIVE ORDER, ORDER FOR ISSUANCE ON WRIT OF ATTACHMENT- EX PARTE

03/09/2018 PROOF OF SERVICE SUMMONS

03/09/2018 Proof-Service/Summons
Filed by Plaintiff/Petitioner

03/09/2018 Proof-Service/Summons

03/09/2018 PROOF OF SERVICE SUMMONS

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 06/18/2018 01/29/2018

01/29/2018 FIRST AMENDED COMPLAINT SUMMONS

01/29/2018 NOTICE OF CASE MANAGEMENT CONFERENCE

01/29/2018 Notice
Filed by Petitioner

01/29/2018 Statement of Facts
Filed by California, State of California (Plaintiff)

01/24/2018 Minute Order

01/24/2018 Minute order entered: 2018-01-24 00:00:00
Filed by Clerk

11/06/2017 ORDER LIFTING THE SEAL

10/25/2017 Minute Order

10/25/2017 Minute order entered: 2017-10-25 00:00:00
Filed by Clerk

10/24/2017 Miscellaneous-Other
Filed by Plaintiff/Petitioner

10/24/2017 Notice
Filed by California, State of California (Plaintiff)

10/24/2017 STATE OF CALIFORNIA S NOTICE OF DECLINATION

10/18/2017 CASE MANAGEMENT STATEMENT

10/18/2017 Case Management Statement
Filed by California, State of California (Plaintiff)

10/02/2017 Notice
Filed by Plaintiff/Petitioner

10/02/2017 Miscellaneous-Other
Filed by Plaintiff/Petitioner

10/02/2017 Notice
Filed by Plaintiff/Petitioner

10/02/2017 NOTICE OF NON INTERVENTION

10/02/2017 CONFIDENTIAL COVER SHEET-FALSE CLAIMS ACTION

10/02/2017 NOTICE OF NON INTERVENTION

05/25/2017 Minute order entered: 2017-05-25 00:00:00
Filed by Clerk

04/26/2017 Minute Order

04/26/2017 Minute order entered: 2017-04-26 00:00:00
Filed by Clerk

04/04/2017 CONFIDENTIAL COVER SHEET-FALSE CLAIMS ACTION

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

04/04/2017 Order
Filed by Commissioner

04/04/2017 Stipulation
Filed by Commissioner

02/27/2017 Notice of Case Management Conference
Filed by Clerk

02/27/2017 NOTICE OF CASE MANAGEMENT CONFERENCE

02/23/2017 Minute Order

02/23/2017 Minute order entered: 2017-02-23 00:00:00
Filed by Clerk

02/07/2017 CONFIDENTIAL COVER SHEET-FALSE CLAIMS ACTION

02/07/2017 AFFIDAVIT OF PREJUDICE PEREMPTORY CHALLENGE TO JUDICIAL OFFICER (C.C.P., 170.6)

01/27/2017 CIVIL CASE COVER SHEET

01/27/2017 COMPLAINT FOR MONEY DAMAGES AND CIVIL PENALTIES FOR VIOLATIONS OF:

01/27/2017 CONFIDENTIAL COVER SHEET-FALSE CLAIMS ACTION

01/27/2017 Complaint
Filed by California, State of California (Plaintiff); Counties of Los Angeles, Kern, San Bernardino (Plaintiff); Cities of Los Angeles and Bakerfield, The School Districts of Los Angeles (Plaintiff) et al.

01/16/2017 Order
Filed by Plaintiff/Petitioner

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 06/18/2018 01/29/2018

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:
05/25/2017

12/03/2019 at 3:07 PM in Department 47, Randolph M. Hammock, Presiding
Court Order

11/14/2019 at 11:45 AM in Department 47, Randolph M. Hammock, Presiding
Non-Appearance Case Review

10/30/2019 at 08:30 AM in Department 47, Randolph M. Hammock, Presiding
Order to Show Cause Re: Dismissal – Held

10/16/2019 at 08:30 AM in Department 47, Randolph M. Hammock, Presiding
Order to Show Cause Re: Dismissal – Not Held – Continued – Court’s Motion

04/18/2019 at 08:30 AM in Department 47, Randolph M. Hammock, Presiding
Order to Show Cause Re: Dismissal – Held – Continued

04/09/2019 at 08:30 AM in Department 47, Randolph M. Hammock, Presiding
Hearing on Motion for Summary Judgment

01/03/2019 at 08:30 AM in Department 47, Randolph M. Hammock, Presiding
Hearing on Motion for Judgment on the Pleadings

10/18/2018 at 08:30 AM in Department 47, Randolph M. Hammock, Presiding
(Order to Show Cause) – Held – Continued

09/13/2018 at 08:30 AM in Department 47
Case Management Conference – Held

06/21/2018 at 08:30 AM in Department 47
Ruling on Submitted Matter – Held

06/18/2018 at 08:31 AM in Department 47
Hearing on Demurrer – without Motion to Strike – Held – Taken under Submission

06/04/2018 at 08:31 AM in Department 47
Hearing on Demurrer – without Motion to Strike (Hearing on Demurrer; Matter continued) –

05/17/2018 at 00:00 AM in Department 86
Nunc Pro Tunc Order – Held

05/11/2018 at 09:33 AM in Department 86
Hearing on Application for Writ of Attachment (CCP 484.040) (Hrng Rt to Attach Ord/Issue Writ; Denied) –

05/02/2018 at 09:31 AM in Department 86
Hearing on Application for Writ of Attachment (CCP 484.040) (Hrng Rt to Attach Ord/Issue Writ; Continued by Stipulation) –

05/02/2018 at 08:31 AM in Department 47
Hearing on Demurrer – without Motion to Strike (Hearing on Demurrer; Continued by Court) –

04/20/2018 at 09:30 AM in Department 86
(Order to Show Cause; Continued by Court) –

04/12/2018 at 08:30 AM in Department 47
Case Management Conference – Held – Continued

04/02/2018 at 08:30 AM in Department 86
Ex-Parte Proceedings (Exparte proceeding; Court makes order) –

01/24/2018 at 08:30 AM in Department 47
Case Management Conference – Held – Continued

10/25/2017 at 08:30 AM in Department 47
Case Management Conference – Held – Continued

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 05/25/2017

05/25/2017 at 08:30 AM in Department 47
Case Management Conference (Conference-Case Management; Continued by Court) –

04/26/2017 at 08:30 AM in Department 47
Non-Appearance Case Review (Non-Appearance (Case Review); Court makes order) –

02/23/2017 at 08:30 AM in Department 52
Unknown Event Type – Held – Motion Granted

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
TOP 05/25/2017

Click on any of the below link(s) to see Register of Action Items on or before the date indicated:
07/24/2018 04/03/2018