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Austin v. Wiskel

2005-12-02T15:14:00.000-08:00

Filed 11/30/05 Austin v. Wiskel CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

SALLY O. AUSTIN, H027669

Plaintiff and Respondent, (Santa Clara County

Superior Court

v. No. CV771376)

ESTHER T. WISKEL, et al., ORDER MODIFYING OPINION

AND DENYING REHEARING

Defendants and Appellants.

_____________________________________/

THE COURT:

It is ordered that the opinion filed herein on November 3, 2005, be modified by striking the sentence on page 7, lines 14-16 that reads: “Even in this context, defendants, as the prevailing parties, were entitled to recover their pre-election costs, and plaintiff was not entitled to recover her pre-election costs.” and replacing it with: “Even in this context, plaintiff was not entitled to recover her pre-election costs.”

This modification does not affect the judgment.

The petition for rehearing is denied.

Dated: ___________________________

Mihara, J.

_____________________________

Premo, Acting P.J.

_____________________________

McAdams, J.

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P. v. Pham

2005-12-02T15:12:00.000-08:00

Filed 11/30/05 P. v. Pham 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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,

CHIEN DINH PHAM,

Defendant and Appellant.

G034625

(Super. Ct. No. 02NF1656)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Patrick H. Donahue, Judge. Affirmed.

Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lilia E. Garcia and Janelle Boustany, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Chien Pham of second degree murder (Pen. Code, § 187; all statutory references to this code unless noted) and found he used a firearm (§ 12022.53). He claims the trial court and the prosecution violated his due process rights by refusing to grant immunity to a key defense witness, who then refused to testify. He also claims the trial court committed various evidentiary and instructional errors. Finding these contentions without merit, we affirm.

Factual and Procedural Background

On May 18, 2002, the Ritz dance club in Anaheim entertained a near capacity crowd to hear a popular local singer. As a precaution, several security guards used a metal detector and patted down most of the patrons as they entered the nightclub. By 1:30 a.m., most of the patrons had departed. Two groups totaling approximately 40 people remained. Members of the “Tiny Rascals” gang (TRG) congregated at one table, while other patrons, including defendant, sat at a different table.

A fight erupted when a man tossed a bottle of cognac onto the TRG table. The combatants threw chairs and broken bottles at each other during the melee. At the outset of the fight, defendant was struck near his eye by flying glass when he turned toward the TRG table. Angry, frustrated, and bleeding, defendant sat at the table and did not join in the brawl.

Security guards moved to quell the disturbance by macing the combatants and expelling the non-TRG group, some of whom were aligned with the Oriental Playboys or O.P.B. gang, through the front door of the club. Several TRG partisans, including 28-year-old victim Tinh Le (Tinh), departed out the emergency back door of the establishment and proceeded around to the front. As the two groups converged, guards intervened to restrain two TRG men who moved toward another man in an aggressive manner.

Defendant approached Tinh on the sidewalk in front of the club. According to the Ritz’s security supervisor, Atour Evaz, the two spoke in Vietnamese for approximately 20 to 30 seconds. To Evaz, defendant appeared “kind of mad,” but Tinh remained calm. The surveillance videotape showed Tinh had nothing visible in his hands or waistband and did not make a move toward his waistband. Tinh lifted his hands in an “open-handed” gesture. When Tinh turned towards the approaching security guard, defendant removed a gun and fired at Tinh’s torso from about three or four feet away. He fired twice more as the victim reeled back; one shot struck Tinh’s head. Evaz ran into the club and defendant fled down an alley to the north of the building. Evaz heard multiple gunshots, perhaps as many as 40, seemingly from “everywhere.”

Based on casings found at the scene, assailants fired at least four guns during the melee. Police recovered the pistol used to kill Tinh in the street adjacent to the parking lot in front of the club. The crime lab identified defendant’s DNA on the grip of the gun. The FBI arrested defendant September 1, 2002, in Las Vegas. He provided a false identity card, but his wallet contained his California driver’s license with his real name. Defendant explained he kept the false identification because of “club fighting” in California. Shown a video of the incident, defendant denied he was the shooter and did not claim anyone had threatened him with a gun inside or outside the Ritz.

Defendant produced evidence that Tinh had a gun on his person at the time he was shot. Several of his TRG cohorts removed the weapon after defendant shot the victim and fled. Tinh’s hands had gunshot residue on them, obtained from either handling a weapon or proximity to one that had been fired.

Defendant testified he attended the club with friends and relatives. He claimed he became intoxicated after drinking cognac throughout the evening. Toward the end of the night, a fight broke out when someone flung a glass or bottle at the TRG table. Defendant was struck in the face by a glass or bottle thrown from the TRG table. The area around his left eye began to bleed. It was too dark and crowded to identify his assailant. While the two groups fought, he sat down because the injury he sustained was painful. During the brawl, he spotted someone holding a gun, but did not recognize the individual. Frightened and frustrated by the injury, he ran out the front door to the parking lot to locate a friend for a ride home. He did not see his friends as people rapidly departed from the club. Defendant asked to borrow a gun from a man named Do. When Do hesitated, defendant grabbed the weapon and tucked it behind his waist. He approached Tri Le (Tri), a member of the TRG group whom defendant knew, because he wanted to learn why he had been hit and explain he was not involved with either of the groups. Defendant admitted he was angry, but did not plan to shoot anyone for revenge. He felt safer or more confident with the gun.

Defendant walked up to a group that included Tinh, who took a couple of steps toward him. Defendant asked why he had been hit. Tinh appeared angry and cursed at him, “Mother f-----, I am going to beat you up.” Tinh’s hands went up. Defendant believed Tinh had a gun because of the bulge in Tinh’s shirt at his waist. Defendant thought the group planned to attack him to beat him up. As Tinh raised his hands, defendant, frightened, pulled out the gun, and fired at Tinh. Defendant shot Tinh so he could escape and did not want to kill him. He fled west down the alley toward the back parking lot. Someone fired at him from the back parking lot and from the alley. He returned fire down the alley, and the person ran away.[1] He reversed course and ran back down the alley and to the street, firing shots into the air to scare others away, and then tossed the gun into the street.

Following a July 2004 trial, a jury acquitted defendant of first degree premeditated murder with special circumstances (lying in wait, gang benefit theories), and a substantive gang charge and gang enhancements. The jury convicted defendant of second degree murder as a lesser included offense and found the allegation he used a weapon to be true.[2] The court imposed a 15-year-to-life prison term for the murder and added 25 years for use of the firearm. This appeal followed.

Issues Concerning Potential Witness Tri

Defendant raises several issues concerning Tri, a TRG gang member and percipient witness who refused to testify at trial. Before turning to these issues, we summarize the factual and procedural background defendant cites to support his argument.

Tri, a leading member of TRG known as “T-bone,” accompanied Tinh to the Ritz and stood nearby when defendant shot Tinh. He also was next to another TRG gang member, Tri Huynh, when Huynh removed the handgun from Tinh’s body, and later was seen running towards the alley holding a semiautomatic handgun behind his back.

Investigators interviewed Tri on five occasions. In three of the interviews, Tri admitted Tinh had a gun inside the Ritz, but his description of Tinh’s conduct varied. In one account, Tri stated Tinh displayed the weapon so that everyone could see it, including defendant. In a later pretrial interview, Tri claimed he prevented Tinh from pulling out the handgun and displaying the weapon.

In April 2003, based on the investigation surrounding Tinh’s homicide, the Orange County District Attorney charged Tri with possession of a firearm by a felon and active gang participation. By the time of defendant’s trial in July 2004, federal authorities had detained Tri on money laundering and narcotics charges.

Before federal authorities intervened, Tri and defendant’s prosecutor arrived at a tentative agreement to have Tri testify for the prosecution. Federal agents returned Tri to local custody for defendant’s trial. After further interviews, the prosecution decided not to call Tri as a witness because he gave several conflicting accounts of his observations. Defense counsel, however, wanted Tri’s testimony primarily to show that the victim brandished a handgun during the fight inside the nightclub.

Tri, represented by counsel, testified at a hearing held outside the jury’s presence. Tri acknowledged he was at the Ritz when the shooting occurred, but when asked if he had seen himself in the video, his lawyer intervened and requested to confer with Tri. When the hearing resumed, Tri announced that he did not want to testify further. The trial court permitted defendant’s counsel to continue, and counsel asked Tri whether he observed Tinh with a firearm inside the Ritz. Tri responded “No.” When counsel pressed Tri further, asking if Tinh displayed a handgun before the fight, Tri declared, “I don’t want to testify no more.” The court construed Tri’s refusal to answer questions as an invocation of his Fifth Amendment privilege against self‑incrimination and prohibited further questioning.

Defendant’s counsel accused the prosecutor of bad faith in failing to grant Tri immunity and requested the court provide judicial immunity to the witness. When the court declined, defendant moved for a mistrial, which the court also denied. Finally, the court denied defendant’s request to admit Tri’s statements to investigators for the truth of the matters asserted. Defendant introduced the substance of these statements while cross‑examining the prosecution’s gang expert, but the court instructed the jury the statements were received only for the limited purpose of testing the basis of the expert’s opinion.

Defendant raises several due process claims, and argues the trial court erred when it declined to admit Tri’s out-of-court statements for their truth. We discuss, in turn, each of defendant’s claims.

A. The Prosecutor Did Not Deny Defendant Due Process By Refusing to Grant

Tri Use Immunity

Defendant claims the prosecutor’s failure to offer Tri use immunity constituted “overreaching” and violated his due process right to a fair trial. He argues the prosecutor obtained “a tactical advantage through discriminatory use of immunity grants to suppress material, exculpatory, and non-cumulative facts from the jurors.” We disagree.

A prosecutor has a duty to administer the immunity power evenhandedly, with a view to ascertaining the truth, and not as a partisan engaged in a legal game. (People v. Hunter (1989) 49 Cal.3d 957, 975.) Due process is violated when a prosecutor selectively uses immunity grants “for the purpose of suppressing essential, noncumulative exculpatory evidence.” (Ibid.)

Here, the prosecutor’s immunity decision did not result in the suppression of noncumulative exculpatory evidence. Defendant’s counsel sought Tri’s testimony to demonstrate the victim had brandished a handgun during the melee inside the Ritz, and therefore defendant acted in self-defense because he feared Tinh would reach for the weapon he had displayed earlier during the fight inside. The trial court endured several lengthy discussions on how this evidence exonerated defendant of murder charges, but defendant rendered these discussions moot when he testified he could not identify the person brandishing the weapon during the brawl inside the club. Defendant may have had other reasons to be wary when he confronted the victim outside, but according to his own testimony, he shot Tinh because he feared the victim would reach for a handgun under the bulge in his waistband, not because he spotted Tinh displaying the weapon during the fight inside the Ritz. Because defendant did not identify Tinh as the person with the gun during the fight, Tri’s statements that the victim displayed a handgun inside the club do not qualify as exculpatory evidence.

Nor did the prosecutor exercise bad faith in deciding not to extend Tri use immunity. As the prosecutor explained, she decided against immunity because Tri provided several conflicting versions of the incident to investigators: “Well, Tri [] has always been a mixed bag. And what he wound up doing was lying and giving a different story to subsequent officers; every time he spoke to them, something new came up. [¶] And when he sat down with us at a proffer and told us he was giving a truthful statement, he said that he was an associate of TRG; he said that he had shot at the defendant in the alleyway one time, and it turns out, of course, that neither the gang expert [nor the physical evidence] supported that story . . . . [¶] And so he has been ever shifting in his story telling . . . . The only thing the People could have done was immunize this person and proffer this witness; then sanction this liar to come into court in exchange for a break on a state prison case, a second strike case . . . .” Defendant’s lawyer conceded Tri lied when he claimed he shot his semiautomatic handgun only once. Thus, the record demonstrates the prosecutor did not deny Tri use immunity to suppress exculpatory evidence or gain a tactical advantage.

B. The Prosecutor Did Not Threaten or Intimidate Tri into Asserting His Privilege

Against Self-Incrimination

Defendant complains the prosecutor intimidated Tri into not testifying and took “the laboring oar to create a finding of Fifth Amendment privilege for a third-party who was represented by silent counsel making no such claim or effort.” He asserts the “prosecutor’s objections and obstructionist activity were improper for this represented witness.”

Prosecutorial interference with the defendant’s right to call witnesses violates a defendant’s right to compel the attendance of witnesses under the Sixth Amendment and the right to due process under the Fourteenth Amendment. (People v. Lucas (1995) 12 Cal.4th 415, 456 (Lucas).) To prevail on this claim, defendant must establish three elements: (1) the prosecutor’s misconduct transformed a defense witness willing to testify into one unwilling to testify; (2) the prosecutor’s misconduct was a substantial cause in depriving defendant of the witness’s testimony; and (3) the testimony must be material to the defense. (Id. at p. 457.) Defendant fails to satisfy any of these elements.

The record does not show the prosecutor threatened or intimidated Tri into asserting his right against self-incrimination. At the hearing outside the jury’s presence, the record reflects Tri conferred with his lawyer immediately before declining to testify further. The prosecutor made no comment or argument concerning Tri’s decision other than to object to defense counsel making an offer of proof in front of the witness. Defendant complains that the prosecutor arranged for delivery of Tri’s court file containing the pending charges against him, but defendant’s lawyer did not object and the prosecutor’s action merely anticipated the trial court’s desire to examine the file. Nor did the prosecutor commit misconduct by objecting to judicial immunity for Tri. We decline to construe these actions as misconduct. Finally, as discussed above, Tri’s testimony was not material to the defense.

C. The Trial Court Correctly Concluded Tri Invoked His Right Against Self-

Incrimination When He Refused to Testify

Defendant contends the trial court erred in concluding Tri invoked his privilege against self-incrimination when he announced, “I don’t want to testify no more.” We disagree. Under the circumstances here, we do not see how the trial court could come to any other conclusion.

The privilege against self-incrimination is properly invoked whenever the witness’s answers “‘would furnish a link in the chain of evidence needed to prosecute’ the witness for a criminal offense.” (People v. Cudjo (1993) 6 Cal.4th 585, 617 (Cudjo).) To find an invocation of the privilege, “‘it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.’” (Ibid.) A trial court may compel the witness to answer only if it “clearly appears to the court” the proposed testimony “cannot possibly have a tendency to incriminate the person claiming the privilege.” (Evid. Code, § 404.)

Here, the court reasonably concluded the witness invoked his Fifth Amendment privilege not to testify. Considering the setting, with Tri represented by counsel, no other conclusion is warranted. And it did not “clearly appear” Tri’s testimony about the brawl inside the Ritz would not tend to incriminate him. His association with Tinh and other TRG gang members tended to show he was an active gang participant. We discern no error.

D. The Trial Court Did Not Err in Refusing to Grant Judicial Immunity

Defendant contends the trial court abused its discretion in declining to grant Tri judicial immunity, and complains the court mistakenly believed it lacked the power to take this action on its own. Defendant is wrong on both counts.

Nothing in the record supports defendant’s claim the trial court misunderstood the extent of its powers. The veteran trial judge was amply familiar with the law restricting the use of judicial immunity, and denied defendant’s request based on Lucas, supra, 12 Cal.4th at pp. 459-461. There, the California Supreme Court observed that “‘the vast majority of cases, in this state and in other jurisdictions, reject the notion that a trial court has “inherent power” to confer immunity on a witness called by the defense.’” (Id. at p. 460.) Lucas noted only one jurisdiction had concluded the judiciary could confer immunity to a witness but only if (1) the proposed testimony is “‘clearly exculpatory’”; (2) the testimony is essential; and (3) there is no strong governmental interest weighing against an immunity grant. (Ibid.) Assuming the trial court could authorize immunity under the limited test above, defendant failed to make the requisite showing. As discussed above, Tri’s proposed testimony was not clearly exculpatory or essential. Moreover, there existed a strong governmental interest against an immunity grant. Tri faced charges of being an active gang participant based on the events surrounding the homicide. Had Tri received use immunity, the district attorney would have been required to prove the evidence offered at Tri’s trial was not derived from Tri’s immunized testimony at defendant’s trial. (People v. Stewart (2004) 33 Cal.4th 425, 469.) To avoid jeopardizing the case against Tri, the prosecution would have narrowed the scope of its cross-examination to prevent Tri from later claiming the prosecution’s case against him was tainted. (Id. at p. 470.) Accordingly, we conclude the trial court did not err in rejecting defendant’s judicial immunity request. Defendant also moved for a mistrial based on the court’s rulings. Because none of defendant’s claims concerning immunity, prosecutorial misconduct and Tri’s assertion of his right against self-incrimination have merit, the trial court correctly denied his mistrial motion.

E. The Trial Court Did Not Err in Prohibiting Defendant from Commenting on the Prosecution’s Failure to Call Tri as a Witness

Defendant next complains the trial court should have permitted comment on the prosecution’s failure to call Tri as a logical witness. He acknowledges that counsel may not comment on a witness’s invocation of the right against self-incrimination (People v. Ford (1988) 45 Cal.3d 431, 444), but distinguishes this rule because “the defense here did not seek to comment on the witness, but rather sought to comment on the fact the prosecution did not call a logical witness who was within its power to produce.” Not so. As we discussed earlier, Tri invoked his Fifth Amendment right and the prosecution did not commit misconduct when it declined to offer Tri use immunity. Defendant’s contention is therefore without merit.

F. The Trial Court Did Not Err in Excluding Tri’s Hearsay Statements

Defendant contends that Tri’s statements concerning Tinh’s conduct inside the Ritz qualified as a declaration against interest under Evidence Code section 1230, and therefore should have been admitted as an exception to the hearsay rule. We disagree.

Evidence Code section 1230 provides that “[e]vidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected him to the risk of . . . criminal liability . . . or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true.” The proponent of this evidence must show the declarant is unavailable, the declaration was against the declarant’s penal or social interest when made, and the declaration carried sufficient reliability to warrant admission. (People v. Duarte (2000) 24 Cal.4th 603, 610-611.) We review the trial court’s ruling under an abuse of discretion standard. (People v. Lawley (2002) 27 Cal.4th 102, 153.)

Here, Tri’s statements that he persuaded Tinh to put his gun away during the fight at the Ritz did not qualify as a declaration against interest. No reasonable person would conclude the statement exposed the declarant to criminal liability. Nor would the statement subject Tri to ridicule or disgrace with his gang cohorts because they could conclude Tri based his statement on gangland tactics rather than a desire to avoid conflict.

Defendant argues that if Tri’s statement supported the invocation of his Fifth Amendment rights, it must also qualify as a declaration against interest. Defendant is mistaken. As discussed earlier, a witness may invoke his Fifth Amendment rights if testifying would furnish a link in a chain of incriminating evidence or if the statement would tend to incriminate the witness. In other words, the privilege protects apparently innocuous statements that might become incriminating when considered with other evidence. (Cudjo, supra, 6 Cal.4th at p. 617.) In contrast, the proponent of a declaration against interest must establish the statement was against the declarant’s penal or social interest to qualify as a hearsay exception under Evidence Code section 1230. Defendant failed to meet this burden.

Defendant also argues the statement was against Tri’s interest because it jeopardized his tentative agreement for immunity and lenient consideration in his pending case because his observation Tinh had a handgun made his testimony less appealing for the prosecution. Essentially, defendant argues Tri’s statement should have been admitted because it was reliable. The fact remains Tri’s statement was not a declaration against his interest. The trial court did not abuse its discretion in ruling Tri’s statements inadmissible.

III

Character Evidence of Victim

Defendant contends the trial court erroneously excluded evidence of Tinh’s aggressive character on a prior occasion similar to the incident at the Ritz. We disagree.

Evidence of the victim’s violent character is relevant to show defendant’s apprehension of danger. Even if defendant was unaware of the victim’s violent nature, the evidence nevertheless tends to show the victim was probably the aggressor. (People v. Brophy (1954) 122 Cal.App.2d 638, 647.) Evidence Code section 1103 expanded this rule to apply to the victim of any crime. The section provides the defendant may offer evidence “of the character or a trait of character . . . of the victim of the crime for which the defendant is being prosecuted” to prove “conduct of the victim in conformity with the character or trait of character.” (Evid. Code, § 1103, subd. (a)(1).) The trial court has broad discretion in determining the relevancy of the evidence and whether to exclude it under Evidence Code section 352. (People v. Stitely (2005) 35 Cal.4th 514, 547-548.)

Defendant relies on evidence showing that Tinh attempted to aid his friends embroiled in a fistfight at a nightclub. At a hearing outside the jury’s presence, Ritz security supervisor Evaz testified that approximately two years before the incident at the Ritz, several of defendant’s friends exchanged blows with another group of men in an altercation at the Club Can in Garden Grove. Tinh acted as if would join the fray, but stopped when a security guard placed a hand on him.

The trial court rejected this evidence, observing: “I think this incident . . . really doesn’t describe any type of violence. I think its probative value is minimum, outweighed by time consumption and prejudicial value. . . . [¶] If he had been in a fight, if he was throwing punches, I think that fits 1103. When I look at the relevance as it applies to this case, I have been watching the video, I think it hasn’t relevance and minimal probative value.”

The evidence was not relevant. Evidence the victim refrained from joining a fight to aid his friends does not demonstrate the victim’s violent character and therefore acted as the aggressor when confronted by defendant. Even if marginally relevant, the slight probative value of the evidence was outweighed by the risk it would confuse the issues and unduly consume trial time. In sum, the trial court did not abuse its discretion.

Jury Instructions

A. No Error Occurred When the Trial Court Instructed on Imperfect Self-Defense Using CALJIC No. 5.17

The trial court instructed the jury on imperfect self-defense as defined in CALJIC No. 5.17. This instruction provides that a homicide committed in the actual but unreasonable belief in the need to defend against imminent peril to life or great bodily injury is voluntary manslaughter rather than murder. The court defined imminent peril or danger as one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the slayer. The last paragraph provided the following: “However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force.”[3]

Defendant objected to the last paragraph, arguing there was no evidence that the victim attempted to use force against defendant. The trial court overruled defendant’s objection, explaining that because defendant approached Tinh armed with a gun and displayed an intent to harm, “there [was] some evidence that caused . . . [¶] . . . Tinh [] to pull [out] a weapon.” Defendant varies the same theme on appeal, arguing no evidence supported the notion defendant took hostile acts toward the victim.

The trial court found that the jury reasonably could infer that the victim’s hand motion was an initial attempt to respond aggressively to what the victim perceived as a possible assault stemming from defendant’s angry and belligerent demeanor. In other words, defendant’s wrongful conduct provoked Tinh and therefore created the circumstances defendant later claimed justified his use of force. (See In re Christian S. (1994) 7 Cal.4th 768, 773, fn. 1 [“wrongful conduct” includes acts initiating a physical assault].) The jury also could have found the last paragraph of CALJIC No. 5.17 inapplicable. The court informed the jury as follows: “Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist.” Thus, defendant fails to demonstrate that instructing the jury with the last paragraph of CALJIC No. 5.17 denied him a fair trial.

Finally, defendant argues the terms “wrongful,” “unlawful” and “legally justified” found in CALJIC No. 5.17’s last paragraph are vague and undefined. Although he concedes the instruction correctly states the law (see People v. Hardin (2000) 85 Cal.App.4th 625, 635), he argues the trial court should not have given the instruction because “[t]he lay juror could not apply any sort of meaning” to these terms. But defendant did not seek to clarify or define these terms. It is “defendant’s obligation to request any clarifying or amplifying instruction . . . .” (People v. Kimble (1988) 44 Cal.3d 488, 503; People v. Lang (1989) 49 Cal.3d 991, 1024 [defendant may not object on appeal that an instruction correctly stating the law and responsive to the evidence was too general or incomplete unless defendant requested clarifying language].) Having failed to do so, defendant cannot now raise the issue. The trial court did not err when it instructed the jury on the last paragraph in CALJIC No. 5.17.

B. No Substantial Evidence Supported Lesser Included Offense Instructions on Involuntary Manslaughter

Defendant contends the court should have instructed sua sponte on involuntary manslaughter as a lesser included offense to murder under multiple theories: misdemeanor manslaughter, criminal negligence, and an unintentional killing in the exercise of imperfect self-defense. We disagree.

Involuntary manslaughter exists where there is an unlawful killing of a human being without malice (1) in the commission of an unlawful act, not amounting to a felony or (2) in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. (§ 192, subd. (b).) Involuntary manslaughter generally is considered a lesser included offense to murder (People v. Prettyman (1996) 14 Cal.4th 248, 274), but the trial court has no sua sponte duty to instruct on lesser included offenses that are not supported by substantial evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.)

Relying on People v. Wilson (1967) 66 Cal.2d 749 (Wilson), defendant contends the court erred in refusing to instruct the jury on misdemeanor manslaughter on the theory he brandished a deadly weapon (§ 417 ). In Wilson, the defendant denied intending to assault the victims, testifying he entered an apartment with a shotgun intending only to scare the occupants. Based on this evidence, the Supreme Court concluded defendant was entitled to involuntary manslaughter instructions because the jury could have found the killings occurred without malice while defendant brandished the weapon, and therefore was an unlawful act not amounting to a felony. (Wilson, supra, at p. 758.)

Here, defendant presented no evidence he intended merely to brandish a firearm. Unlike the defendant in Wilson, there was no evidence defendant intended to scare Tinh; rather, it was undisputed he intended to shoot him.

Defendant also cites People v. Penny (1955) 44 Cal.2d 861 to argue the court should have instructed on manslaughter as a criminally negligent act: “[Defendant] was seeking to escape a terrorist street gang which appeared to him to be moving in to beat him. He was confronted by [Tinh] who made what [defendant] feared to be a menacing gesture. He knowingly fired at [Tinh’s] body, without an intent to kill, to deter harm to his person. Any objective view of shooting a person in the body must conclude the fatal consequence of the negligent act could reasonably have been foreseen in the sense of negligence law.”

Defendant’s argument is based on the assumption he acted negligently in shooting the victim several times. But no evidence supports this assumption. Defendant did not testify he negligently mishandled the firearm. (See, e.g., People v. Carmen (1951) 36 Cal.2d 768, 776 [defendant, carrying gun with cartridge in firing chamber, pointed forward, accidentally discharged the weapon when he stumbled approaching occupied vehicle]; People v. Clark (1982) 130 Cal.App.3d 371, 382-383.) Defendant intentionally fired three times directly into Tinh. Consequently, there was no factual basis for negligent manslaughter instructions.

Finally, defendant argues the court should have instructed on negligent manslaughter on a theory of imperfect self-defense without intent to kill. In People v. Blakeley (2000) 23 Cal.4th 82, the Supreme Court held that a defendant commits voluntary manslaughter when acting with conscious disregard for life and the knowledge that the conduct is life-endangering, unintentionally but unlawfully kills while having an unreasonable but good faith belief in the need to act in self-defense. (Id. at p. 85.) The majority, responding to a dissent, stated it had no “quarrel with th[e] view” that “a defendant who kills in unreasonable self-defense may sometimes be guilty of involuntary manslaughter.” (Id. at p. 91, italics added.) In other words, involuntary manslaughter may apply when a defendant kills in unreasonable self-defense, but lacks an intent to kill or conscious disregard for life. Defendant argues his conduct falls within this exception. We disagree.

Defendant fired three gunshots into the victim’s chest at close range, demonstrating an intent to kill or conscious disregard of life. True, defendant testified he did not intend to kill, but his hope the victim would survive does not warrant an involuntary manslaughter instruction. Indeed, for murder based on implied malice, the prosecution need not prove defendant intended his life-endangering act would result in death. Rather, the prosecution must prove defendant deliberately performed an intentional act defendant knew was life endangering. (See CALJIC No. 8.31.) Here, defendant offered no evidence he was unaware that shooting the victim three times, once in the head, was an act dangerous to human life. Accordingly, no evidence supported an involuntary manslaughter instruction.

C. Providing the Jury with the Mutual Combat Instruction Does Not Mandate Reversal

The trial court, on its own motion, instructed the jury on mutual combat per CALJIC No. 5.56. The court instructed as follows: “The right of self-defense is only available to a person who engages in mutual combat if he has done all of the following: [h]e has actually tried, in good faith, to refuse to continue fighting; [¶] . . . [h]e has clearly informed his opponent that he wants to stop fighting; [¶] . . . [h]e has clearly informed his opponent that he has stopped fighting; and [¶] . . . [h]e has given his opponent the opportunity to stop fighting. After he has done these four things, he has the right to self-defense if his opponent continues to fight.” We agree with defendant the instruction did not apply, but conclude any conceivable error was harmless.

In People v. Quach (2004) 116 Cal.App.4th 294 (Quach), a panel of this court held this version of CALJIC No. 5.56 (since amended), “transmogrified the requirement of a good faith endeavor to decline further combat into a categorical denial of the defense to anyone who has not succeeded in clearly informing his opponent that he is no longer fighting and wishes to stop. . . . [w]e cannot find such a rule in Penal Code section 197.” (Id. at p. 301.) Quach also faulted the instruction for failing to mention that a victim may not respond to a simple assault with deadly or excessive force, and if he does the defendant may respond with like force. And if the victim’s counter assault is so sudden and perilous there is no opportunity to decline “or to make known to his adversary a willingness to decline the strife, if he cannot retreat with safety, then as the greater wrong of the deadly assault is upon his opponent, he would be justified in slaying, forthwith, in self-defense.” (People v. Hecker (1895) 109 Cal. 451, 463- 464; see Quach, supra, at pp. 301-302.)

CALJIC No. 5.56 expressly applies only to “a person who engages in mutual combat.” The instruction contemplates a non-deadly fight that escalates when the defendant’s adversary resorts to deadly force. Defendant and his victim exchanged words, but not blows, before defendant shot the victim. Thus, the instruction did not apply because there was no evidence defendant and the victim engaged in mutual combat.

Reversal is not required, however. The court instructed the jury to “disregard any instruction which applies to facts determined by you not to exist.” We presume the jurors followed the court’s instructions (People v. Sanchez (2001) 26 Cal.4th 834, 852) and did not apply CALJIC No. 5.56 because no evidence showed defendant and the victim engaged in mutual combat. Where the court gives an irrelevant instruction, the error “is usually harmless, having little or no effect ‘other than to add to the bulk of the charge.’” (People v. Rollo (1977) 20 Cal.3d 109, 123.) Any error in providing CALJIC No. 5.56 was harmless by any standard.

D. The Court Properly Instructed that Voluntary Manslaughter Was a Lesser Offense to Murder

Finally, defendant asserts the written instruction defining voluntary manslaughter contained an error. On the version of CALJIC No. 8.40 provided, the court handwrote the first sentence: “In the lesser included offense to count [?] namely voluntary manslaughter . . . .” Defendant interprets the “?” as a “2.” Count 2 was the attempted murder of Tommy Tran. He asserts: “The emphasized number is a handwritten number that appears to be a ‘2’ and should be a ‘1.’ This may simply be careless penmanship, but upon first viewing and then later examination it appears to be a ‘2’ with a loop on the bottom.” He complains the jury was thus not instructed that voluntary manslaughter was a lesser included offense of the murder of Tinh charged in count 1.

The point lacks merit; any purported ambiguity would have been quickly resolved by the jury. The reporter’s transcript reflects that the court read the instruction, “[i]n the lesser included offense to count I.” (Italics added.) The written instruction referred to one who “unlawfully kills another human being” (italics added), not one who unlawfully attempts to kill. The court provided a separate instruction on attempted voluntary manslaughter for count 2: “In the lesser included offense to count 2 namely attempt voluntary manslaughter.” There was no indication the jury was confused. We discern no error.

Disposition

Judgment affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

FYBEL, J.

[1] The prosecution charged defendant with attempted murder of Tommy Tran, a victim of a gunshot wound found lying in the alleyway. The jury acquitted defendant of this charge.

[2] The jury initially deadlocked on the murder count. The court provided CALJIC No. 8.71 (doubt as to degree compels second degree murder verdict) at the request of the prosecution, and the jury subsequently returned its verdict.

[3] The complete instruction reads: “A person who kills another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury, kills unlawfully but does not harbor malice aforethought and is not guilty of murder. [¶] This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief. [¶] Such an actual but unreasonable belief is not a defense to the crime of voluntary . . . manslaughter. [¶] As used in this instruction, an ‘imminent’ peril or danger means one that is apparent, present, immediate, and must be instantly dealt with or must so appear at the time to the slayer. [¶] However, this principle is not available, and malice aforethought is not negated if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force.”

Karen C. v. Sup. Ct.

2005-12-02T15:11:00.000-08:00

Filed 11/30/05 Karen C. v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

KAREN C.,

Petitioner,

THE SUPERIOR COURT OF MARIPOSA COUNTY,

Respondent,

MARIPOSA COUNTY DEPARTMENT OF HUMAN SERVICES,

Real Party In Interest.

F048917

(Super. Ct. Nos. JV1992A,

JV1992B, JV1992C)

O P I N I O N

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Wayne R. Parrish, Judge.

Deborah A. Bennett, for Petitioner.

No appearance for Respondent.

Allen, Polgar, Proietti & Fagalde and Michael A. Fagalde, for Real Party In Interest.

-ooOoo-

This extraordinary writ petition arises from a contested 12-month review hearing at which the juvenile court terminated petitioner’s reunification services and set a Welfare and Institutions Code section 366.26 hearing^{^[1]} as to her three small children. We will deny the petition.

STATEMENT OF THE CASE AND FACTS

In June 2004, the Mariposa County Department of Human Services (department) removed petitioner’s then four-year-old and three-year-old sons and 11-month-old daughter from what would later be described as one of the worst “dirty house” cases on record in the county. The home smelled of urine and mold throughout. The rooms were cluttered and dirty. The beds had no linen and were inaccessible. Worse still, the carpet was soaked with water and sewage from the toilets which were backed up. There was drug paraphernalia, pornography and numerous small objects accessible to the children. Deputy sheriffs arrested petitioner and the children’s father, R., for child endangerment and drug charges and the Public Health Department declared the home uninhabitable.

The department filed a dependency petition on the children’s behalf and the juvenile court ordered them detained. At the jurisdictional hearing, the court found the allegations true and, at the department’s recommendation, ordered both parents to complete psychological evaluations to determine if they were capable of benefiting from reunification services. The court set the dispositional hearing for August 30, 2004.

At the dispositional hearing on August 30, 2004, the court ordered a plan of reunification for petitioner and R. Petitioner’s case plan required her to maintain a clean and safe home and complete a parenting program. Her case plan also required her to participate in outpatient therapy to address anger management and any other services recommended by the therapists. The court also set a three-month interim review hearing on October 25, 2004, and a six-month review hearing on February 7, 2005.

Within days after the dispositional hearing, the department received the results of the psychological evaluations. The psychologist diagnosed R. with an antisocial personality disorder and petitioner with a dependent personality disorder, which the psychologist concluded rendered them unable to care for their children. However, while the psychologist could not recommend any services that could restore R.’s ability to care for his children, the psychologist suggested that petitioner could benefit from a residential program that offered domestic violence counseling and substance abuse treatment. The psychologist specifically stated:

“It is my recommendation that [petitioner] should be assessed by [an agency] that provides domestic violence counseling and treatment. If she qualifies for and accepts residential services that include a substance abuse component, she can begin a course of treatment that could help her, within a period of six months, toward independent thinking and decision making in the best interest of her children.

“If she does not qualify for or does not accept residential services she will be left struggling with depressive, hypomanic and oppositional characteristics, conduct problems, and methamphetamine dependency, in the context of a dependent relationship with a dysfunctional man, In such a case, no services could restore her ability to control her children adequately within a period of six months.”

After receiving the psychologist’s report, the department referred petitioner for outpatient therapy. The department also reported the psychologist’s conclusions and recommendations in its interim report and recommended the court continue the existing plan in effect.

On October 25, 2004, the court conducted the three-month interim review hearing. The parties, including counsel for petitioner, submitted on the department’s recommendation to retain the existing reunification plan in effect. The court found petitioner was provided reasonable services and retained the six-month review hearing on calendar for February 7, 2005.

The six-month review hearing was continued several times and conducted on March 14, 2005. In the interim, the department reported that petitioner and R. continued to use drugs and neither one sought therapy for their personality disorders. They separated and were in the process of divorce and petitioner had a live-in boyfriend who was on probation for a then-recent incident of domestic violence. R. was awaiting sentencing in a criminal matter and petitioner and R.’s two sons were exhibiting signs of severe emotional damage. In its six-month status review, the department recommended the court terminate reunification services for both parents.

At the six-month review hearing on March 14, 2005, petitioner’s attorney informed the court that petitioner began drug treatment in December 2004 under the auspices of the drug court and had since remained drug-free and compliant with the program requirements. In light of petitioner’s progress, her attorney asked the court to continue her services.

County counsel argued the court should terminate petitioner’s services, citing the psychologist’s recommendation she participate in a residential program and her failure to seek any mental health treatment. Petitioner’s attorney countered that petitioner demonstrated success in an outpatient treatment program, proving that she did not need residential treatment.

After argument, the court found petitioner was provided reasonable services and ordered an additional six months of services for her. The court terminated reunification services for R. The court also ordered petitioner to complete a mental health assessment that next week. The court set the 12-month review hearing for July 25, 2005.

Over the next six months, petitioner continued to progress in drug treatment and her prognosis was considered good. However, she still had not scheduled an appointment for a mental health assessment. In addition, her inability to control the children during visitation continued to expose them to danger. On one occasion, the boys found some matches and were found in a corner trying to light them. In its 12-month status review, the department recommended the court terminate petitioner’s services and set the matter for permanency planning.

Petitioner challenged the department’s recommendation and a contested 12-month review hearing was conducted on September 12, 2005. It was undisputed at trial that petitioner made progress in drug treatment. The issue was whether the department failed to provide reasonable services by not referring petitioner for residential treatment as recommended by the psychologist. The caseworker testified that she referred petitioner many times for outpatient therapy but only a therapist could refer petitioner for residential treatment.

Petitioner testified she did not pursue therapy during the first six months of services because she was using drugs. After she was court-ordered to complete a psychological assessment at the six-month review hearing, she made several unsuccessful attempts to schedule an intake assessment. Petitioner advised the caseworker of her difficulty scheduling the assessment but testified that the caseworker did not intervene and petitioner did not make any further efforts to pursue therapy on her own. She stated she was involved in drug court and did not have time to participate in a residential program.

Petitioner also admitted knowing that her boyfriend had a criminal record and served a prison sentence. She was also aware that he was convicted in October 2004 and was on probation for battering his ex-girlfriend. She stated his circumstances concerned her but that he had never attempted to strike her.

After argument, the court found petitioner was provided reasonable services. The court commended petitioner on her recovery but concluded that she had not made progress with respect to her mental health problems. Consequently, the court terminated reunification services and set a section 366.26 hearing for December 19, 2005. This petition ensued.

DISCUSSION

Petitioner argues, as she did at trial, that the department should have modified her case plan to include residential treatment as recommended by the psychologist. Since it did not, she argues, she was denied reasonable services and the juvenile court erred in terminating her services. We conclude she waived the issue for our review.

All orders subsequent to the dispositional order in dependency proceedings are directly appealable. (In re Meranda P. (1997) 56 Cal.App.4th 1143, 1150.) Unappealed postdisposition orders are final and binding. (Ibid.)

In this case, the time to argue that reasonable services for petitioner must include residential treatment was either at the three-month review hearing on October 25, 2004, or by direct appeal from the court’s reasonable services finding made at that hearing. However, petitioner did not do either. In fact, her attorney submitted on the department’s recommendation to retain the original case plan in effect. In so doing, her attorney assented to the terms of the plan on petitioner’s behalf and waived her right to challenge the reasonableness of the plan on appeal.

To the extent trial counsel was arguably ineffective for not arguing for a modified plan either at the three-month review hearing or by filing a section 388 petition,^{^[2]} we find no evidence of prejudicial effect. A petitioner asserting ineffectiveness of counsel must prove trial counsel’s performance was deficient, resulting in prejudicial error. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668.) We need not evaluate counsel’s performance if petitioner fails to prove prejudicial error; i.e., absent counsel’s errors, there is a reasonable probability of a more favorable outcome. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.) Therefore, to prevail on a claim of ineffective assistance of counsel, petitioner would have to show that, but for counsel’s failure to argue she needed residential treatment, the court would have modified the case plan to include it and petitioner would have benefited from the treatment and reunified with her children.

Here, there is no evidence that the court would have modified petitioner’s case plan based on the psychologist’s recommendation. Rather, as the court stated at the 12-month review hearing, it was not compelled to follow the psychologist’s recommendations. Rather, the court considered the psychological report a tool for use in determining what services to provide. Moreover, there is no evidence that petitioner would have entered an inpatient program. She was already involved in a live-in romantic relationship and she testified at trial that she did not have time for a residential program. Finally, there is no evidence petitioner would have benefited from a residential program. Apart from her drug abuse, her dependent personality disorder posed the most significant danger to her children yet she refused to seek therapy for it. As a result, she traded one abusive relationship for another potentially abusive relationship and she still lacked the skills to care for and protect her children. Therefore, any claim of ineffective assistance of counsel would fail for lack of prejudice. Based on the foregoing, we find no error on this record.

DISPOSITION

The petition for extraordinary writ is denied. This opinion is final forthwith as to this court.

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^*Before Dibiaso, Acting P.J., Harris, J., and Cornell, J.

^{^[1]} All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^{^[2]} Section 388 allows the parent of a child adjudged a dependent of the juvenile court to petition the court to change, modify or set aside any order upon grounds of change of circumstance or new evidence.

Lonnie S. v. Sup. Ct.

2005-12-02T15:10:00.000-08:00

Filed 11/30/05 Lonnie S. v. Sup. Ct. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

LONNIE S.,

Petitioner,

THE SUPERIOR COURT OF STANISLAUS COUNTY,

Respondent,

STANISLAUS COUNTY COMMUNITY SERVICES AGENCY,

Real Party In Interest.

F048901

(Super. Ct. No. JUV507961)

O P I N I O N

THE COURT^*

ORIGINAL PROCEEDINGS; petition for extraordinary writ review. Nancy B. Williamsen, Commissioner.

Lonnie S., in pro. per., for Petitioner.

No appearance for Respondent.

Michael H. Krausnick, County Counsel, and Linda S. Macy, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Petitioner, in pro. per., seeks an extraordinary writ (Cal. Rules of Court, rule 38 (rule)) to vacate the orders of the juvenile court terminating reunification services and setting a Welfare and Institutions Code section 366.26 hearing^{^[1]} as to his infant son A. We conclude his petition fails to comport with the procedural requirements of rule 38.1(a). Accordingly, we will dismiss the petition as facially inadequate.

STATEMENT OF THE CASE AND FACTS

In December 2004, then one-month-old A. was released to the protective custody of the Stanislaus County Community Services Agency (agency) after he and his mother R. tested positive for various illicit drugs. At the time, petitioner was in prison.

The agency filed a dependency petition on A.’s behalf, which the juvenile court sustained. The court found petitioner to be A.’s biological father but denied petitioner reunification services. The court ordered services for R. and set the six-month review hearing for September 12, 2005. The agency placed A. in foster care.

Over the next six months, R. made no progress in her case plan. In addition, she did not visit A. at all despite opportunities to do so. Meanwhile, A. was in a loving, committed foster home with caretakers who wanted to adopt him.

The uncontested six-month review hearing was conducted on September 12, 2005. Petitioner and R. appeared through counsel who offered no evidence. The court terminated R.’s reunification services and set the section 366.26 hearing for December 19, 2005. This petition ensued.

DISCUSSION

Petitioner does not allege the juvenile court error. He merely informs this court that he will be released from custody by March of 2006 and asks that A. be released to his and his wife’s custody at that time.

Rule 38.1(a) specifies that the writ petition must set forth a summary of the grounds for the petition and be accompanied by points and authorities. (Rule 38.1(a)(1)(D) & (a)(3).) The points and authorities must inform the reviewing court of the issue(s) presented, reference the factual support for them in the record and offer argument and authorities that assist the court in resolving the issues. (Glen C. v. Superior Court (2000) 78 Cal.App.4th 570, 583.) While this court will liberally construe a writ petition in favor of its sufficiency, the petition must contain an assertion of juvenile court error.

In this case, petitioner fails to assert any error on the part of the juvenile court and we will not independently review the record for possible errors. (In re Sade C. (1996) 13 Cal.4th 952, 994.) Accordingly, we must dismiss the petition as facially inadequate for appellate review.

DISPOSITION

The petition for extraordinary writ is dismissed. This opinion is final forthwith as to this court.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.

^{^[1]} All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

P. v. Cardiel

2005-12-02T15:09:00.000-08:00

Filed 11/30/05 P. v. Cardiel CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

ALEJANDRO GANDARA CARDIEL,

Defendant and Appellant.

F047637

(Super. Ct. No. BF108368A)

O P I N I O N

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Charles P. McNutt, Judge.

Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Locker, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and Wanda Hill Rouzan, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), appellant Alejandro Cardiel, pursuant to a plea agreement, pled no contest to possession of methamphetamine for purposes of sale (Health & Saf. Code, § 11378). The court imposed the 16-month lower term.

On appeal, appellant contends the court erred in denying his suppression motion. We will affirm.

FACTUAL BACKGROUND

On November 3, 2004, police in Bakersfield obtained and executed a search warrant authorizing search of appellant’s person, “the residence at 239 Irene Street” in Bakersfield (Irene Street residence) and two motor vehicles. The warrant was based on an affidavit executed on November 2, 2004, by City of Bakersfield Police Detective A. Ronquillo.

In his affidavit, Detective Ronquillo stated that within 10 days prior to its execution, he was contacted by a “confidential and reliable informant” (CRI), who told the detective the following.^{^[1]} “[H]e/she^[^{^[2]}^] was capable of purchasing methamphetamine,” and had in the past purchased methamphetamine, from a Hispanic male known to the CRI as “Al” who “resid[ed] at an unknown address, possibly in the Bakersfield area.” Al “drives two vehicles he uses to deliver methamphetamine: a newer, white, SUV type vehicle, and an older, brown over black Jeep CJ5.” The CRI provided a physical description of Al.

Detective Ronquillo provided Al with “city funds” for a controlled buy, and thereafter the CRI placed a telephone call and “ma[de] arrangements for the delivery and purchase of methamphetamine at a prearranged location.” Detective Ronquillo “remained in the area to assist in surveillance” and observed a subject who matched the general description provided by the CRI “arrive at the prearranged location in a newer, white, SUV type vehicle, and meet with the CRI.” During this meeting, the CRI obtained from the subject a substance which was later tested and determined to contain methamphetamine.

After the controlled buy, Detective Ronquillo and “surveillance units” followed the subject whom the detective suspected was Al. The subject “parked his vehicle in front of the residence” at 1018 Jefferson Street (“Jefferson Street residence”) and entered the residence. “A brown cloth-top over black, Jeep, CJ5” (Jeep) was parked in front of the Jefferson Street residence.

California Department of Motor Vehicle (DMV) records revealed the following. The white vehicle the subject was seen driving, a 2002 Chevrolet Trail Blazer (Chevrolet), was registered to Juanita O. Gonzalez or Alejandro G. Cardiel “at 609 Decatur Street, Bakersfield.” The Jeep was registered to Alejandro Cardiel or Jose Cardiel at the same address. Alejandro Cardiel listed his most recent address as 7000 Ming Avenue, Apartment C, in Bakersfield.

The CRI identified a photograph of Alejandro Cardiel, obtained from the DMV, as that of the man he knew as Al from whom he purchased methamphetamine at the police-arranged transaction.

Within the 10 days prior to the execution of the affidavit, Detective Ronquillo and other police detectives conducted surveillance of the Chevrolet and the Jeep, and during that time observed appellant “driving the Chevrolet . . . between the Jefferson Street residence and the residence at 239 Irene Street in Bakersfield.”

Within the five days prior to the execution of the affidavit, Detective Ronquillo and other police detectives conducted surveillance of the Jefferson Street residence, and observed the following. The residence “appeared at that time to be vacant with a ‘For Rent’ sign on the front gate.” The detectives “also found [the Chevrolet and the Jeep] parked at the residence at 239 Irene Street, during the late evening and early morning hours,” and they “observ[ed] [appellant] freely entering and exiting the residence, leading [Detective Ronquillo] to believe ALEJANDRO CARDIEL had moved to this residence.” “[O]n at least two occasions,” the detectives saw appellant “leave the residence at 239 Irene Street, enter the [Jeep] and drive away from the residence” and engage in activities known to Detective Ronquillo to be “consistent with narcotic sales,” viz., driving to various residences, entering, remaining a short time and leaving, making contact with persons in “open, public places, contacting these subjects for a short period of time, and then terminating his contact with them.”

Detective Ronquillo stated: “Based on the facts contained in this Statement of Probable Cause and my training and experience, I believe the previously described evidence is indicative of methamphetamine trafficking and currency derived from methamphetamine sales will be found in the locations . . . to be searched. [¶] It is also my belief that a search of the premises . . . will locate the previously described items and will identify those parties in control of the premises . . . in which illegal controlled substances may be found.”

Detective Ronquillo has been a police officer in Bakersfield for the past 27 years. The affidavit detailed his training and experience relating to detecting drug trafficking.

DISCUSSION

Appellant contends the affidavit submitted in support of the search warrant failed to establish probable cause to search the Irene Street residence, and therefore the court erred in denying the suppression motion.

“It is a basic principle of the Fourth Amendment that for a search warrant to issue there must be probable cause.” (U.S. v. Laughton (6th Cir. 2005) 409 F.3d 744, 747.) “Probable cause exists when the information on which the warrant is based is such that a reasonable person would believe that what is being sought will be found in the location to be searched.” (People v. Stanley (1999) 72 Cal.App.4th 1547, 1554.) In determining whether an affidavit is supported by probable cause, the magistrate must make a “practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Illinois v. Gates (1983) 462 U.S. 213, 238.)

“The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought.” (Zurcher v. Stanford Daily (1978) 436 U.S. 547, 556, fn. omitted.) Thus, “[t]he affidavit must establish a nexus between the criminal activities and the place to be searched.” (People v. Garcia (2003) 111 Cal.App.4th 715, 721.) “ ‘[A]n affidavit . . . must contain facts demonstrating a substantial probability that [contraband or] evidence of a crime will be located in a particular place. [Citations.] A statement that the affiant “ ‘has cause to suspect and does believe’ ” that the evidence is located at the targeted premises is insufficient.’ ” (Ibid.) “ ‘The opinions of an experienced officer may legitimately be considered by the magistrate in making the probable cause determination.’ [Citation.] However, an affidavit based on mere suspicion or belief, or stating a conclusion with no supporting facts, is wholly insufficient.” (Ibid.) “ ‘A statement that the affiant “ ‘has cause to suspect and does believe’ ” that the evidence is located at the targeted premises is insufficient.’ ” (Ibid.) “ ‘The sufficiency of the affidavit must be evaluated in light of the totality of the circumstances.’ ” (Id. at p. 720.)

“The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing.” (People v. Kraft (2000) 23 Cal.4th 978, 1040. “ ‘Doubtful or marginal cases are resolved in favor of upholding the warrant. [Citations.] The burden is on [the defendant] to establish invalidity of [a] search warrant[ ].’ [Citation.] ‘The magistrate’s determination of probable cause is entitled to deferential review.’ ” (People v. Garcia, supra, 111 Cal.App.4th at p. 720.)

As indicated above, Detective Ronquillo stated in his affidavit that he believed “currency derived from methamphetamine sales [would] be found” in the Irene Street residence. Appellant agues this is a “bare, conclusory statement,” unsupported by any statement of the reasons for, or facts underlying, such belief. He argues that the affidavit did not “establish[ ] that he actually spent the night there or that he was living at that location.” And even if it was “established” appellant lived at the Irene Street residence, he argues, the affidavit does not establish a sufficient nexus between the residence and criminal activity. In support of this claim he notes that after the controlled buy, appellant went to the Jefferson Street residence, not the Irene Street residence. These contentions are without merit.

We first examine the showing that appellant lived at the Irene Street residence. The affidavit indicates the following. Although initially police observed appellant’s vehicles parked outside the Jefferson Street residence and appellant entering that residence, subsequently the Jefferson Street residence appeared to be empty, and a “For Rent” sign was posted. However, even before that residence appeared to be empty, police observed appellant driving “between” that location and the Irene Street residence, and thereafter police observed the following: appellant’s vehicles were parked at the Irene Street residence late in the evening and early in the morning; appellant “freely entered and exited” that location; and on at least two occasions appellant drove from that location to other locations where he engaged in activities Detective Ronquillo recognized as being consistent with drug trafficking.

Notwithstanding that appellant apparently provided DMV addresses on Decatur Street and Ming Avenue but not Irene Street, the presence of appellant’s vehicles at the Irene Street residence, and in particular the fact that vehicles were there late in the evening and early in the morning, considered in combination with the observations of appellant “freely” entering and leaving the residence on multiple occasions, support the inference appellant was living at the Irene Street residence.

We next turn to the question of whether the affidavit contained a sufficient showing of a nexus between the Irene Street residence and criminal activity. There is no serious dispute the affidavit is sufficient to establish probable cause that appellant was engaged in criminal activity, specifically, drug dealing: he was observed selling to the CRI a substance that was later determined to contain methamphetamine, and he later drove from the Irene Street residence to parts of Bakersfield where he engaged in activity known to Detective Ronquillo to be consistent with drug dealing.

We recognize, as appellant points out, that “it cannot follow in all cases, simply from the existence of probable cause to believe a suspect guilty, that there is also probable cause to search his residence.” (U.S. v. Lucarz (9th Cir. 1970) 430 F.2d 1051, 1054.) However, “[t]he nexus between the objects to be seized and the premises searched need not, and often will not, rest on direct observation, but rather ‘can be inferred from the type of crime, the nature of items sought, the extent of an opportunity for concealment and normal inferences as to where a criminal would hide [evidence of a crime] . . . .’ ” (U.S v. Reddrick (7th Cir. 1996) 90 F.3d 1276, 1281, emphasis added.) Thus, it has been “ ‘recognized that, in issuing a search warrant, a magistrate is entitled to draw reasonable inferences about where the evidence is likely to be kept, based on the nature of the evidence and the type of offense[]’ [citation], and that ‘in the case of drug dealers evidence is likely to be found where the dealers live[]’ [citation].” (Ibid.; accord, U.S. v McClellan (7th Cir. 1999) 165 F.3d 535, 546; U.S. v. Feliz (1999) 182 F.3d 82, 87-88.) As the court asked rhetorically in U.S. v. Feliz, supra, 182 F.3d at p. 88, “If [the defendant, a drug dealer] did not maintain his accounts and records, and the presumably large sums of money received in the course of his dealings, at his apartment, where else would he keep them?” Thus, in the instant case, the magistrate was entitled to infer that, as Detective Ronquillo asserted, there was probable cause that appellant kept the proceeds of his illegal drug sales in the Irene Street residence.

“Although individual facts within the affidavit might also be consistent with lawful activities, it is the totality of the circumstances that must be considered. The fact that there may be more than one reasonable inference to be drawn does not defeat the issuing magistrate’s finding of probable cause.” (People v. Stanley, supra, 72 Cal.App.4th at p. 1555.) Here, when we interpret the affidavit in the proper “practical, common-sense” fashion, evaluate it in light of the totality of the circumstances and accord proper deference to both the experienced officer/affiant and the trial court, we conclude the magistrate did not err in determining that the affidavit established probable cause that evidence of a crime would be found in the premises searched. (Illinois v. Gates, supra, 462 U.S. at p. 238.)

DISPOSITION

The judgment is affirmed.

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^* Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.

^{^[1]} The remainder of the “Factual Background” section is taken from the affidavit executed by Detective Ronquillo.

^{^[2]} For the sake of brevity, we will use the masculine pronoun in referring to the CRI.

P. v. Creamer

2005-12-02T15:07:00.000-08:00

Filed 11/30/05 P. v. Creamer CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

STEPHEN CREAMER,

Defendant and Appellant.

F046937

(Super. Ct. No. MCR017041)

OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Madera County. Jennifer R.S. Detjen, Judge.

Paul V. Carroll, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stephen G. Herndon and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

On June 25, 2004, appellant Stephen Creamer, was found guilty after a jury trial of two counts of committing a lewd and lascivious act on a child under age 14 (Pen. Code, § 288, subd. (a), counts one & three) and exhibition of lewd material to a minor (Pen. Code, § 288.2, subd. (a), count two). The trial court sentenced Creamer to the midterm of six years on count three and to a consecutive term of two years on count one for a total prison term of eight years. The court imposed an eight-month term on count two to run concurrent with Creamer’s sentence. The court granted applicable custody credits and imposed a restitution fine.

On appeal, Creamer contends the trial court improperly instructed the jury on the effect of voluntary intoxication. Creamer also contends the trial court erred in denying the jury’s request for the reading back of defense counsel’s closing argument.

FACTS

Creamer lived with Kim and her two daughters. The victims, M. and R., routinely had sleepovers with Kim’s daughters. When the incidents occurred, M. was age 10 and R. was 8 years old.

On November 11, 2003, Creamer was in his residence. Kim’s daughters were having a sleepover with M., R., and another girl. While M. was playing Monopoly, Creamer touched her buttock. After M. went to sleep, she awoke to find Creamer on top of her. M. was on her stomach. Creamer was moving up and down on her. M. could feel Creamer’s penis touching her buttocks. M. felt sick. She thought she was dreaming and fell asleep.

When M. awoke, she was alone with Creamer in his bedroom. The other children were in the other bedroom. M., who was sure she went to sleep wearing underwear, was not wearing her underwear when she woke up.

R. testified that Creamer was her best friend’s stepfather. Some time during the evening when she slept over, Creamer placed a movie into the VCR. R. saw two naked women touching a man’s penis. Later that evening, R. was in Creamer’s room lying on her back in his bed. Creamer placed his penis inside R.’s vagina. Creamer removed his penis and R. saw something white come out of his penis. The next day R. told Creamer’s ex-wife what Creamer had done the previous evening.

Ruth Taylor, a pediatric nurse practitioner, examined R. on November 18, 2003. R. told Taylor someone had placed his penis into her vagina and it hurt “the worst ever.” Because R. was abused more than 72 hours earlier, Taylor conducted a sexual abuse examination rather than an “evidential examination.” Taylor concluded R.’s physical conditions were normal. Taylor was not surprised because most children she has examined for sexual abuse have normal findings.

Madera Police Officer Thomas Burns executed a search warrant based on an alleged sexual assault. Burns found adult pornographic magazines and movies as well as homemade Polaroid photographs. Burns viewed the videotapes to make sure there were no children. One commercially produced videotape was cued to a scene where two women were orally copulating a man.

Creamer testified he had served in the United States Army and was involved in combat in Bosnia. Creamer retired from the Army on October 1, 1998. Creamer was taking prescription medication, Diazepam, for a “borderline” Post Traumatic Stress Disorder. Creamer explained that he takes a triple dose at night which causes him to go to sleep immediately. The medication causes Creamer to ignore things happening around him. The evening of M. and R.’s sleepover, Creamer took his medication. Creamer went to sleep between 6:00 p.m. and 8:00 p.m. He did not remember anything that happened that evening. Creamer denied ever molesting any child and denied molesting M. He denied having sex with R. or showing her a pornographic videotape.

INTOXICATION INSTRUCTIONS

Creamer contends the trial court erred in admonishing the jury with CALJIC No. 4.21.1 because the instruction does not accurately state the law because it fails to “clearly inform the jury that voluntary intoxication can negate specific intent.” According to Creamer, CALJIC No. 4.21.1 only implies that voluntary intoxication may negate specific intent.^{^[1]}

Respondent replies that CALJIC No. 4.21.1 was requested by Creamer. According to respondent, any modification to CALJIC No. 4.21.1 would be a pinpoint instruction. Creamer’s failure to request a pinpoint instruction constitutes a waiver of the issue on appeal. Respondent further argues that Creamer’s argument fails on its merits.

The failure to object to an instruction and to request an alternative instruction generally precludes the defendant from raising the alleged instructional error on appeal. (People v. Hart (1999) 20 Cal.4th 546, 622.) The failure by the appellant to request clarification or amplification constitutes a waiver of the issue on appeal. (People v. Arias (1996) 13 Cal.4th 92, 171.) Where the defendant believes an instruction is unclear, he or she has the obligation to request clarification from the trial court. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192.)

Respondent accurately points out that according to the notes on the instruction at page 86 of the clerk’s transcript, it was Creamer who requested CALJIC No. 4.21.1. Creamer replies that his challenge is to the legal correctness of the instruction. We disagree. Creamer’s contention is that the instruction fails to expressly state that voluntary intoxication can negate specific intent. The instruction, in relevant part says, “If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not that the defendant had the specific intent or mental state.”

The practical meaning of this sentence is that the jury can find the absence of specific intent if it finds the defendant’s mental state was affected by intoxication. This is obviously a factual issue for the jury to decide. The instruction goes on to explain that if the jury has a reasonable doubt whether the defendant had the required specific intent, it must find the defendant did not have that intent. The instruction authorizes the jury to negate specific intent depending on the facts of the particular case. Creamer’s argument amounts to a demand for clarification of a point already made in the given instructions. Creamer, however, did not ask for such clarification from the trial court and cannot raise the issue for the first time on appeal.

On the merits, Creamer’s argument also fails. The California Supreme Court has found no problem with the use of CALJIC No. 4.21.1.^{^[2]} (See People v. Saille (1991) 54 Cal.3d 1103, 1121.) Here, Creamer testified the medication he took for his borderline posttraumatic stress condition caused him to completely fall asleep the evening the events occurred. The challenged instruction gave the jury the opportunity to find Creamer did not act with the requisite specific intent due to his intoxication from the medication. The jury apparently rejected this testimony and defense. We find no instructional error in the court’s use of CALJIC No. 4.21.1.

READING BACK OF TRIAL COUNSEL’S CLOSING ARGUMENT

Creamer contends the trial court erred in denying the jury’s request for the reading back of his counsel’s closing argument to the jury. We do not find that the trial court abused its discretion.

During jury deliberations, there was a request to hear the reading back of M.’s testimony and defense counsel’s closing argument.^{^[3]} The court explained to the parties that it would permit the reading back of M.’s testimony, but it would not allow the reading back of counsel’s closing argument because it was not testimony. Defense counsel was concerned that if the jury had a question about the instructions, he wanted the court to point out which instructions were relevant to the jury’s question. Counsel otherwise agreed not to have his closing argument read back to the jury.^{^[4]}

Creamer argues the trial court misunderstood the law because the reading back of counsel’s closing argument is permitted. Respondent replies that the trial court did not indicate it lacked authority to allow the reading back of counsel’s argument. The court decided it was only going to allow the reading back of evidence from the case. We agree with respondent.^{^[5]}

Even where the trial court expressly indicates it lacks authority to order the reading back, however, the error has been found not to be prejudicial under a Watson standard of review.^{^[6]} The theory argued to the jury was not of such complexity that its repetition was necessary in order for the defendant to receive the full benefit of the adversarial process. Where the disputed issue is covered by the jury instructions, it is not reasonably probable that, had the trial court read back counsel’s summation, the jury would have reached a different verdict. (People v. Sims (1993) 5 Cal.4th 405, 452-453 [questioned on another ground in People v. Storm (2002) 28 Cal.4th 1007, 1031-1032].)

In the instant action, the intoxication theory argued to the jury was not of such complexity that its repetition was necessary for the defendant to receive the full benefit of the adversarial process. Though he argues to the contrary above, Creamer received complete jury instructions on the effects of voluntary intoxication, his primary defense at trial. Under these facts, it is not more reasonably probable that, had the trial court read back defense counsel’s closing argument, the jury would have reached a different verdict.

Having reached this conclusion, we reject Creamer’s final argument that trial counsel was ineffective for failing to object to the trial court’s decision not to read back his closing argument. To prevail on this point, Creamer also has to demonstrate prejudice. (People v. Maury (2003) 30 Cal.4th 342, 389.) As we observe above, he has not done so.

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Cornell, J., and Dawson, J.

^{^[1]} The trial court read the jury the following version of CALJIC No. 4.21.1:

“It is the general rule that no act committed by a person while in the state of voluntary intoxication is less criminal by reason of that condition.

“Thus, in the crime of assault, which is lesser to the crime of ‘lewd act with [a] child,’ the fact that the defendant was voluntarily intoxicated is not a defense and does not relieve the defendant of the responsibility for the crime.

“However, there is an exception to this general rule, namely, where a specific intent or mental state is an essential element of the crime. In that event, you should consider the defendant’s voluntary intoxication in deciding whether the defendant possessed the [required] specific intent or mental state at the time of the commission of the alleged crime.

“Thus, in the crime of “lewd act with [a] child,” a necessary element is the existence in the mind of the defendant of a certain specific intent. In the crime of ‘harmful matter exhibited to a minor’ a necessary element is the existence in the mind of the defendant in a specific intent and mental state. The requisite specific intent or mental state is included in the definition of the crimes set forth elsewhere in these instructions.

“If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether or not that the defendant had the required specific intent or mental state.

“If from all the evidence you have a reasonable doubt whether a defendant had the required specific intent or mental state, you must find the defendant did not have the specific intent or mental state.”

^{^[2]} This court has rejected the argument that CALJIC No. 4.21.1 is confusing and that it shifts the burden to the defendant to prove his or her innocence where there is an issue of voluntary intoxication. (People v. Aguirre (1995) 31 Cal.App.4th 391, 400-402.)

^{^[3]} The jury earlier asked for the reading back of Ruth Tyler, the nurse who examined R.

^{^[4]} Defense counsel’s argument to the jury was brief. Counsel argued that it was impossible for his client to form intent because he essentially passed out after taking his medication. Counsel argued there was no testimony from any witness contradicting his client’s testimony. Counsel argued his client was too intoxicated from his medication to form specific intent to commit the alleged offenses.

^{^[5]} The unsworn statements of counsel are not evidence. (In re Zeth S. (2003) 31 Cal.4th 396, 414.)

^{^[6]} People v. Watson (1956) 46 Cal.2d 818, 836.

P. v. Alexander

2005-12-02T15:06:00.000-08:00

Filed 11/30/05 P. v. Alexander CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

KERRY LEWIS ALEXANDER,

Defendant and Appellant.

F046185

(Super. Ct. No. 1071962)

OPINION

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. John G. Whiteside, Judge.

Curt R. Zimansky, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Connie A. Proctor, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

On June 29, 2004, appellant Kerry Lewis Alexander, was found guilty after a jury trial of transportation of methamphetamine (Health & Saf. Code, § 11379, count one), possession of methamphetamine (Health & Saf. Code, § 11377, count two), driving with wanton disregard for the safety of others while fleeing from a police officer (Veh. Code, § 2800.2, count three), resisting a public officer discharging his or her duty (Pen. Code, § 148, subd. (a), count four), and possession of a hypodermic needle and syringe (Bus. & Prof. Code, § 4140, count five).^{^[1]} In a bifurcated proceeding the trial court found true a prior prison term enhancement (§ 667.5, subd. (b)).

The court sentenced Alexander to prison for the three-year midterm on count one and a consecutive one-year term for the prior prison term enhancement for a total term of four years.^{^[2]} The court imposed a restitution fine and granted applicable custody credits. On appeal, Alexander contends the trial court improperly denied him a Marsden hearing at the conclusion of the jury trial.^{^[3]} Alexander contends the trial court improperly allowed him to be impeached with a prior conviction that did not involve moral turpitude. The parties concur that Alexander’s 60-day sentence on count four should be stayed pursuant to section 654.

FACTS

Prosecution Case

At 11:00 p.m. on February 27, 2004, Stanislaus County Sheriff’s Deputy Jonathan Howard was on patrol in Keyes when he noticed a car traveling without taillights. Howard pulled in behind the car and activated his flashing overhead lights. The car quickly accelerated to high speed. Howard pursued the car. After traveling about four blocks, the car slid off the road and came to rest against a chain-link fence. Howard stopped and ordered the driver at gunpoint to exit the car.

Alexander crawled out of the driver’s side window and ran 15 to 100 yards. Howard chased Alexander, ordering him to stop between three and five times. Howard took Alexander into custody only after Alexander fell to the ground. Shining his flashlight to where Alexander fell, Howard found a pack of red Marlboro cigarettes and black electrical cord. Howard picked them up and led Alexander to his patrol car. During an in-custody search, Howard found an unused syringe in Alexander’s pocket. Inside the cigarette pack, Howard found an empty clear plastic bag and three plastic bags filled with white powder inside. Howard believed the three bags contained methamphetamine. A criminalist with the Department of Justice tested the three bags and determined one bag contained 2.07 grams of methamphetamine and the other two contained dimethyl sulfone. Another deputy testified that 2.07 grams of methamphetamine is a usable amount.

Alexander told Howard that he thought his brakes went out. Howard did not see any trash in the area he arrested Alexander. Howard had made previous drug arrests in the area and had seen empty cigarette packs on the ground.

Defense Case

Bradley Sather, a friend of Alexander’s, said Alexander bought the car from his wife the day before. The car, a Mazda RX7, had 175,318 miles and was over 20 years old. Sather described it as a piece of junk. Though the car ran, it had faulty wiring, the roof and windows leaked, and the battery could not hold a charge. It had no rearview mirror, only an exterior mirror. The car had faulty brakes and fuel leaks. Sather believed Alexander smoked Camel cigarettes.

Alexander’s wife, Shanlon Leque, said she was present when Alexander bought the car and that Sather was fed up with it. Leque explained that the evening of February 27, 2004, she was at a friend’s home. When she left her friend’s home, Alexander approached her and they had a little spat. She left with friends. At a stop sign, Leque saw Alexander’s Mazda pull around to the side of the street facing south. Alexander kept going but looked as if he was trying to stop.

Leque saw a police officer pass her. She saw two white lights on top of the patrol car but did not hear a siren. The patrol car was traveling about 40 miles per hour and was catching up to the Mazda. Soon she saw Alexander’s car in a fence.

Avis, a long-time acquaintance of Alexander’s, was in the car with Leque. Avis said he saw Alexander coming up behind them; they pulled over expecting Alexander to stop to talk. Alexander drove by and did not stop. Avis wondered if something was wrong because Alexander looked as if he was trying to stop the car. Alexander’s brake lights were on. When the patrol car went past, it was not flashing red lights and there was no siren.

Post Trial Hearing

After the trial proceedings had concluded, Alexander asked the court if there was “[a]ny way that I can make a statement on this saying I feel that I wasn’t represented properly?” The court replied it will be a matter for appellate counsel. The court said that after hearing the facts of the case, it was not sure what more defense counsel could have done for Alexander.

Alexander responded that every time he asked counsel questions, counsel would not tell him the truth. Alexander thought counsel was working with the prosecutor. Counsel gave evidence to the prosecutor. When the court asked Alexander if there was anything about the facts of the case that might indicate Alexander might be found not guilty, Alexander said his parole officer could testify as to his credibility.

The court asked whether Alexander happened to land on the cigarette pack just by accident. The court explained that if Alexander wanted new counsel for sentencing, he could make a Marsden motion at that time. The court explained to Alexander that the only purpose for such a motion would be to question whether defense counsel would represent Alexander for sentencing, “period.” The court further stated that whether defense counsel’s representation was adequate through trial was “a question for your appeal.”

MARSDEN HEARING

Alexander contends he was not afforded an opportunity for a Marsden hearing. Respondent replies that Alexander did not expressly ask for new counsel. After reviewing the record, we agree with Alexander that the trial court failed to make a proper inquiry consistent with established Marsden procedure.^{^[4]}

When a defendant acts in some manner to discharge counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his or her contention and to relate specific instances of counsel’s alleged inadequate performance. A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation or if the defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to occur. (People v. Fierro (1991) 1 Cal.4th 173, 204.)

A defendant can request a Marsden hearing pretrial, during trial, or postconviction. (People v. Smith (1993) 6 Cal.4th 684, 694.) Where there is a postconviction challenge to counsel’s competency, the defendant may be entitled to new counsel to pursue a motion for new trial based on the original attorney’s incompetency. There is always an inherent conflict if trial counsel is placed in the position of arguing his or her own incompetency. (Id. at pp. 693-696.)

It is routine practice for the trial court to take testimony during a Marsden hearing in camera without the presence of the prosecuting attorney. (People v. Smith, supra, 6 Cal.4th 684, 694; People v. Mandago (1990) 220 Cal.App.3d 982, 990.) At the Marsden hearing, the court must give the defendant an adequate opportunity to state all reasons for dissatisfaction with the appointed attorney. (People v. Vera (2004) 122 Cal.App.4th 970, 980.)

The trial court in the instant action actively discouraged Alexander from complaining about trial counsel’s performance. The court twice told Alexander his remedy for inadequate representation was on appeal. The court told Alexander he could only make a motion for new counsel if he wanted different counsel for sentencing. The court’s statements were legally incorrect. If there was merit to Alexander’s contention, substitute counsel could file a motion for new trial.

Respondent’s argument that Alexander did not expressly request new counsel is unpersuasive because the trial court expressly stated it would not hear a motion to substitute counsel unless Alexander limited the substitution to the sentencing hearing. Alexander cannot be seen to have abandoned his claim where the trial court effectively told him prior to conducting a Marsden hearing it would not entertain a substitution motion unless the substitution was limited to sentencing.

The trial court should have conducted an in camera hearing without the prosecutor to determine whether there were grounds to substitute counsel pursuant to Marsden and its progeny. Alexander was only able to articulate one basis for such a motion – that his trial counsel failed to call his parole officer as a character witness. Because there was not a proper hearing, we cannot ascertain whether there were other reasons counsel’s representation may have been inadequate.

One purpose for a Marsden hearing is to create a record for appellate review. Without a careful inquiry into the defendant’s claim of incompetence of counsel, the proceeding is lacking in the attributes of a judicial determination. (See People v. Ivans (1992) 2 Cal.App.4th 1654, 1666.) Without a proper hearing, there is no record for us to review.

From the brief interchange between the trial court and Alexander, it appears the court’s initial perception was that trial counsel had done a competent job. The court, however, did not afford Alexander an opportunity to set forth all potential challenges to counsel’s representation. Only after hearing these can the trial court make a final determination concerning counsel’s performance.

The appropriate procedure is to remand the case to the trial court to conduct a full inquiry into Alexander’s allegations concerning counsel’s performance. If the court determines the defendant has presented a colorable claim of ineffective assistance of trial counsel, or if there has been an irreconcilable conflict between the defendant and trial counsel, the court must appoint new counsel to fully investigate and to present a motion for new trial. If the inquiry fails to disclose a colorable claim, the motion for substitution of counsel may be denied and the judgment reinstated. (See People v. Ivans, supra, 2 Cal.App.4th 1654, 1667; People v. Winbush (1988) 205 Cal.App.3d 987, 992.)

IMPEACHMENT

Alexander argues he was improperly impeached with a prior conviction for possession of methamphetamine in jail (§ 4573.6). We need not reach the issue of whether section 4573.6 is a crime of moral turpitude to resolve this issue. Alexander was impeached with three other prior felony convictions. Two of these were for receiving stolen property (§ 496, subd. (a)), a crime which involves moral turpitude. (People v. Rodriguez (1986) 177 Cal.App.3d 174, 178-179.) Thus, two of Alexander’s prior convictions were crimes of moral turpitude.

In determining whether impeachment with such offenses is error, we follow the standard of review set forth in People v. Watson (1956) 46 Cal.2d 818, 836, unless a more fundamental constitutional right is involved. (People v. Collins (1986) 42 Cal.3d 378, 391, fn. 12; People v. Marquez (1986) 188 Cal.App.3d 363, 368-369.) We find that it is not more reasonably probable that the result of the trial would have been different had the prosecution not impeached Alexander with his prior conviction for section 4573.6.

MISDEMEANOR SENTENCE

Alexander contends the trial court erred when it failed to stay his 60-day misdemeanor sentence for resisting a peace officer (§ 148, subd. (a)) pursuant to section 654. Respondent concedes the error. The parties agree that Alexander’s resistance to Howard’s arrest was merely a continuation of his initial flight from Howard in violation of Vehicle Code section 2800.2. It was part of an indivisible course of conduct that constituted a single offense which can only be punished once under section 654. We agree with the parties.

DISPOSITION

The judgment is reversed and remanded for the limited purpose of holding a Marsden motion. If Alexander makes a prima facie showing of ineffective assistance of trial counsel, or of an irreconcilable conflict with counsel during the proceedings which undermined counsel’s effectiveness, the court is directed to appoint new counsel for the purpose of bringing a motion for new trial and to proceed accordingly. If Alexander fails to make a prima facie showing of ineffective assistance of trial counsel, or of an irreconcilable conflict with counsel, the court is directed to reinstate the judgment and to stay Alexander’s misdemeanor sentence on count four.

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^*Before Vartabedian, Acting P.J., Wiseman, J., and Gomes, J.

^{^[1]} Unless otherwise indicated, all statutory references are to the Penal Code.

^{^[2]} The court stayed Alexander’s sentence on count two pursuant to section 654 and imposed a concurrent two-year term on count three. On counts four and five, the court imposed concurrent 60-day terms on each count and then granted credit for time served.

^{^[3]} People v. Marsden (1970) 2 Cal.3d 118.

^{^[4]} Because we find there was no Marsden hearing, we do not discuss Alexander’s alternative theory that if a Marsden hearing occurred, it was inadequate.

Samantha S. v. Sup. Ct.

2005-12-02T15:05:00.000-08:00

Filed 11/30/05 Samantha S. v. Sup. Ct. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

SAMANTHA S.,

Petitioner,

THE SUPERIOR COURT OF SONOMA COUNTY,

Respondent;

SONOMA COUNTY DEPARTMENT OF HUMAN SERVICES,

Real Party in Interest.

A111676

(Sonoma County

Super. Ct. No. 1575-DEP)

Samantha S. has filed a writ petition challenging a juvenile court order terminating her reunification services and setting a hearing under Welfare and Institutions Code section 366.26.^{^[1]} Samantha contends the court abused its discretion by finding that reasonable reunification services were provided by the Sonoma County Department of Human Services (the Department), and by finding that returning her daughter Autumn to her would be detrimental to the child. We disagree, and deny the petition.

On both issues raised by this petition, we review the record to determine whether substantial evidence supports the juvenile court’s rulings. (Angela S. v. Superior Court (1995) 36 Cal.App.4th 758, 762, 763.) We must resolve all conflicts in support of those rulings, and draw all legitimate inferences to uphold the order, refraining from second-guessing the court’s conclusions. (Elijah R. v. Superior Court (1998) 66 Cal.App.4th 965, 969.) We address the relevant evidence in connection with the arguments advanced by Samantha.

1. Adequacy of Reunification Services

Samantha does not dispute that the services provided to her were directed at the problems that led to the initiation of these dependency proceedings ¾ substance abuse and domestic violence. Rather, she faults her social worker for failing to follow up on arrangements for a parent educator, Judith Cain, to work with her in her home. These arrangements are not reflected in the written record, but both Ms. Cain and the social worker testified that plans were made for Cain to visit Samantha in her home in the period following December 2004 to supervise Samantha’s visits with Autumn.

Cain testified that she met with Samantha 14 times between April 2004 and December 2004. However, after the social worker asked her to supervise home visits that December, she never heard back from him. The social worker explained that after the plans for home supervision were made, he became very concerned about Samantha’s failure to visit with her son Andrew. Andrew, also a dependent of the court, was placed in a treatment facility separate from Autumn. Because Samantha was showing a lack of interest in Andrew, and failing to comply with that visitation component of her reunification plan, the social worker was reluctant to schedule visitation with Autumn in Samantha’s home.

This evidence shows that Samantha actually received a substantial amount of services from Cain. The social worker’s explanation for the failure to follow through on the arrangements for supervised home visits was not unreasonable. Samantha fails to establish any lack of substantial evidence on this point concerning the provision of reunification services.

Samantha also suggests the social worker was deficient for failing to contact her therapist after December 2004 to determine what progress she had made toward overcoming her denial of the problems leading to the children’s detention. She does not, however, dispute that she received the therapist’s services. Any lack of communication by the social worker with the therapist at this late stage of the reunification process does not undermine the court’s finding on the adequacy of the reunification services provided by the Department.

2. Evidence That a Return to Samantha Would Be Detrimental to Autumn

Samantha’s principal claim is that the evidence did not support a finding that returning Autumn to her custody would have been detrimental to the child. However, she did not ask the court at the hearing below for custody of Autumn. Rather, she requested six more months of reunification services. In this court, she does not challenge the court’s rejection of that alternative.

Given Samantha’s failure to raise this point below, we need not belabor the evidence supporting the court’s order. It is sufficient to note that, despite the case plan requirement that she refrain from using drugs and alcohol, Samantha admitted drinking at a picnic shortly before the latest hearing. The children’s father, who was at the same event, testified that Samantha was inebriated enough to stumble when she walked. The social worker testified that Samantha failed to consistently provide him with proof of attendance at Alcoholics Anonymous or Narcotics Anonymous meetings, another requirement of her case plan. Samantha acknowledged that since this requirement was reiterated in a December 2004 memorandum, she had failed to consistently provide proof of attendance. “The failure of the parent [] to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.21, subd. (f).)

DISPOSITION

The petition is denied on the merits.

_________________________

Parrilli, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Pollak, J.

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^{^[1]} Further statutory references are to the Welfare and Institutions Code. Samantha’s writ petition refers to former California Rules of Court, rule 39.1B, which was repealed effective January 1, 2005. We deem the petition to have been based on the currently effective rule 38.1.

The Department notes that Samantha failed to personally sign the Notice of Intent to File Writ Petition. We provided Samantha’s counsel an opportunity to file a declaration establishing good cause for this failure. (See Cal. Rules of Court, rule 38(e)(3); Lisa S. v. Superior Court (1998) 62 Cal.App.4th 604.) Counsel has filed a declaration claiming that counsel mistakenly believed either she or her client could sign the form, and attaching a notice signed by Samantha. Under the circumstances, we will address the merits of the petition.

In re Don. W.

2005-12-02T15:04:00.000-08:00

Filed 11/30/05 In re Don. W. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

In re DON W., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

DON W.,

Defendant and Appellant.

A111155

(Mendocino County

Super. Ct. No. 3117470502)

Don W. appeals the August 15, 2005, dispositional order committing him to the California Youth Authority (CYA). He was found to have violated the probation imposed following his convictions for theft of a firearm (Pen. Code, § 487, subd. (d)) and for sexually molesting a child under the age of 14 (Pen. Code, § 288, subd. (a).) Defendant’s court-appointed counsel has briefed no issues and asks this court to review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738.

BACKGROUND

Defendant was born in June 1987. In October 2002, he was declared a ward of the juvenile court after he admitted grand theft of a firearm. (Pen. Code. § 487, subd. (d).) He was placed on probation, with the advisory that if he did not follow the terms of probation, including obeying all laws, he could be confined in juvenile hall or CYA for a period up to three years.

In March 2003, an amended petition alleged violation of probation (count one), two counts of lewd or lascivious acts on a child under 14, one by force (counts two & three), and one count of sodomy by force (count four), all committed on the same victim on a single day. An April 2003, second amended petition alleged two additional counts of lewd or lascivious acts on the same victim but on two earlier dates (counts five & six). Following a contested hearing, the court found true counts one through four, and dismissed counts five and six. It subsequently struck the findings of force pertinent to counts three and four.

In November 2003, the court denied the People’s request to commit defendant to CYA and ordered him instead to a residential treatment program for juvenile sex offenders. It set the maximum term as eight years, eight months: the maximum statutory term for the sex offense and one-third the statutory midterm for the firearm theft. In April 2004, defendant admitted violating probation by failing to abide by all rules of his placement site. He was continued as a ward of the court and ordered to serve 90 days in juvenile hall.

In August 2004, defendant was returned to the residential treatment program. On September 27, 2004, he was terminated from the program following refusal to complete an assignment, cursing the staff, leaving the placement without permission, and being under the influence of alcohol and marijuana when he was returned.

In December 2004 the court, without explanation, committed defendant to CYA for a maximum commitment of eight years, eight months, with credit for 552 days served. It ordered him to pay restitution, pay a restitution fine, and register as a sex offender.

Defendant appealed the December 2004 commitment order solely on the ground the court erred in failing to exercise its statutory discretion in setting his maximum term of physical confinement pursuant to the newly-enacted Welfare and Institutions Code, section 731, subdivision (b). (In re Don W. (Aug. 23, 2005, A108669 [nonpub. opn.].)

In May 2005, while defendant’s appeal was pending, he moved to modify his commitment based on In re Sean W. (2005) 127 Cal.App.4th 1177 and In re Carlos E. (2005) 127 Cal.App.4th 1529. These opinions held that the new statute grants the juvenile court discretion to impose a maximum term of commitment less than the statutory upper term for an adult offender.

On August 15, 2005, following a hearing at which the court received evidence, heard argument, and reviewed defendant’s juvenile court file, the court affirmed defendant’s eight year, eight month CYA commitment, based on the facts and circumstances of the his firearm theft and sex offenses, the extreme harm he caused the nine-year-old victim and victim’s family, his lack of remorse and victim empathy, his need for rehabilitation, education, and treatment, the danger he presented to society until rehabilitated, his lack of honesty with law enforcement personnel, his poor performance in his initial grant of probation, and his dysfunctional family history and unmet mental health and educational needs. On August 16, 2005, defendant appealed this order.

A week later, August 23, 2005, this division issued its opinion in defendant’s appeal. We affirmed the disposition but remanded to allow the court to exercise its discretion pursuant to Welfare and Institutions Code section 731, subdivision (b). (A108669 [nonpub. opn.].)

The record supports the length of defendant’s recommitment to CYA. Defendant was represented by counsel throughout the modification of commitment proceedings. He received a fair hearing that comported with due process. There are no errors in the disposition order. We find no errors or other issues requiring further briefing.

The disposition order of August 15, 2005, is affirmed.

_________________________

Jones, P. J.

We concur:

_________________________

Stevens, J.

_________________________

Simons, J.

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Estate of Citragno

2005-12-02T15:02:00.000-08:00

Filed 11/30/05 Estate of Citragno CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Estate of GUIDO D. CITRAGNO, Deceased.

ROBERT G. CITRAGNO,

Petitioner and Appellant,

ALLEN M. CITRAGNO,

Objector and Respondent.

A107866

(Alameda County

Super. Ct. No. RP03112829)

In this case, the probate court entered an order directing Allen M. Citragno, the trustee of a family trust, to reissue a grant deed in order to indicate the grantor’s status as trustee. After Allen failed to comply, his brother Robert—who stood to receive the property in question—filed a petition seeking to have himself declared the sole owner of the property.[1] After a hearing at which both parties appeared and gave evidence, the court determined its prior order was contrary to the terms of the trust and issued an order “rescind[ing]” its prior order. Robert appeals from this second order, arguing, among other things, that the court lacked jurisdiction to rescind its prior order. We agree and reverse.

BACKGROUND

On August 13, 1997, Guido D. Citragno transferred his ownership interest in a Berkeley, California property to the “Guido D. Citragno Trust” and named his son Allen as the trustee. The trust contained no other assets beyond this single piece of real property. An exhibit to the trust instrument provided that, upon Guido’s death, this “Trust estate” would be distributed in shares of equal value to his two sons, Allen and Robert Citragno. Exactly one year later, on August 13, 1998, Guido died.

On August 20, 2003, Robert filed a verified petition in probate court for an order compelling the trustee to act. According to the petition, Allen had executed and delivered a grant deed on June 7, 2001, transferring title to the Berkeley property to Robert. This deed was recorded on November 26, 2002. However, in March 2003 the Alameda County assessor advised Robert the office was unable to process the deed because Allen held ownership of the property as a trustee, not as an individual; consequently, a grant deed for the property would have to reflect the grantor’s (i.e., Allen’s) status as a trustee for the Guido D. Citragno Trust. Robert’s petition advised the court that Allen had failed to correct or reissue the deed in this manner, and it requested an order compelling him to do so. Allen did not appear at the hearing on the petition, and on October 28, 2003, the court issued an order directing Allen to reissue the grant deed as the trustee of the Guido D. Citragno Trust.

Apparently unbeknownst to Robert or the probate court, Allen did execute a new grant deed on September 3, 2003, shortly after Robert’s petition was filed. In this deed, which Allen signed in his capacity as trustee, Allen granted ownership of the Berkeley property in equal one-half shares to Robert and himself. This deed was recorded on October 15, 2003.

Robert filed a new petition on December 15, 2003, asking the probate court to transfer full title in the property to him. The petition alleged that Allen had failed to comply with the court’s October 28, 2003 order, and it described the separate deed Allen had recently issued granting title 50 percent to each brother. Robert asked the court to issue orders transferring all interest in the property to himself and declaring null and void any deeds recorded by Allen after August 20, 2003. He also sought an award of costs and attorney fees.

Both parties appeared at the July 12, 2004 hearing on this petition. Allen testified that he did not reissue the deed in accordance with the court’s prior order because Robert still owed him money for the property. He explained that the trust gave each of the brothers one-half shares of ownership interest in the property, which had an estimated value of $425,000, and Robert had agreed to purchase his share in return for keeping the house. But, while Robert had signed over checks to Allen for more than $100,000, Allen contended he was still owed over $100,000 for his half of the property. Robert did not dispute the existence of this agreement, but he stated that Allen was supposed to have put the property in his name so that he could take out a loan to pay “the remainder of the money” he owed to Allen. Robert did not know how much money he still owed Allen, but he admitted he had not paid the entire amount agreed upon.

After the matter was submitted, the court observed that the status of the parties’ agreement to transfer the property was unclear. It was clear to the court, however, that the trust directed the property to be distributed in equal one-half shares to each brother, which was exactly how the most recent grant deed (recorded in October 2003) described the state of ownership. Thus, the court concluded its prior order directing that the property be conveyed entirely to Robert “seems to be contrary to . . . the provisions of the trust [and] the settlor’s wishes” unless there had been an exchange of sufficient consideration. Over an objection from Robert’s counsel that the order was final and no motion for reconsideration had been filed, the court indicated it did not need a pleading and was reconsidering the matter “now.” The court explained: “You got the facts just like I do, and based on the facts that I see, I don’t see that your client ought to receive a windfall by getting half of the property. And [it] seems to me that that’s what I would be doing if I would enforce my order, and I’m not going to do that.” The court observed the prior order was contradicted by the evidence, to wit, Robert’s admission that he still owed money for the property, and the court repeated, “I’m not going to enforce an order where your very client says that he hasn’t paid the full amount.” After hearing additional testimony from Robert about the brothers’ agreement, the court ordered its prior order “withdrawn and rescinded.” While noting there should be “some correction of the flow of consideration for this property” (so that either Robert finished paying and received a 100 percent interest, or Allen returned Robert’s money and they each continued to hold a 50 percent share), the court concluded it was appropriate to leave the property in both names, as reflected in the most recent deed.

Robert’s appeal followed from the minute order of this hearing.[2]

DISCUSSION

Robert contends the probate court lacked jurisdiction in July 2004 to “rescind” its October 28, 2003 order because this order became final 60 days after it was entered, at which point the time for an appeal had expired. In a related argument, he maintains the court erred in reconsidering the order sua sponte, without requiring a pleading and discovery on the issue.

This second contention is easily dispensed with. While Robert cites no authority for his contention that a “pleading [must] be filed setting out the basis for reconsideration,” we presume he is referring to Code of Civil Procedure section 1008, which places strict limits on a party’s ability to seek reconsideration of a prior court order.[3] However, it is now settled that this statute does not limit the court’s ability to reconsider prior orders on its own motion, so “so it may correct its own errors.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.) This power derives from the court’s “inherent authority to change its decision at any time prior to the entry of judgment.” (Darling, Hall & Rae v. Kritt (1999) 75 Cal.App.4th 1148, 1156-1157; see also Le Francois v. Goel, supra, 35 Cal.4th at pp. 1103-1105 [Legislature may not limit court’s inherent power to correct its error]; Case v. Lazben Financial Co. (2002) 99 Cal.App.4th 172, 183-185.) Although the Supreme Court recently observed that a trial court should inform the parties of its concerns and allow briefing and a hearing before reconsidering a prior order (Le Francois v. Goel, supra, 35 Cal.4th at p. 1108), we conclude the court in this case substantially complied with these fairness guidelines. The validity of the October 2003 order was clearly placed in issue by Robert’s petition seeking, essentially, enforcement of that order, and both parties participated in a lengthy hearing addressed to the court’s concerns.

Robert’s jurisdictional argument is more troubling, however, and it requires us to decide whether the October 2003 order should be construed as an interim order or a final judgment. The characterization is important, because a court has power to reconsider only interim orders, not final judgments. An interim order may be corrected at any time before final judgment, while the case is still pending in the trial court. (Betz v. Pankow (1993) 16 Cal.App.4th 931, 937; Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 317.) Once a final judgment has been entered, however, the trial court loses its previously unrestricted power to change that judgment. (Craven v. Crout (1985) 163 Cal.App.3d 779, 782; cf. Le Francois v. Goel, supra, 35 Cal.4th at pp. 1097, 1101, 1107-1108 [holding only that trial court has inherent ability to reconsider its prior “interim” orders].)

“Normally, the rule for distinguishing between an interim and a final order is whether such order is appealable. (Dick v. Superior Court (1986) 185 Cal.App.3d 1159, 1163, fn. 5.)” (Robbins v. Los Angeles Unified School Dist., supra, 3 Cal.App.4th at p. 317.) Robert asserts the order on his first petition “bears the same finality as judgments in other proceedings” because this order was appealable—either as an order instructing a fiduciary (Prob. Code, § 1300, subd. (c)), or as an order instructing the trustee of a trust (Prob. Code, §§ 1304, subd. (a), 17200, subd. (b)(6)). The October 2003 order did direct Allen to take specific action with respect to trust property, and it left no further matters to be litigated with respect to the petition; therefore, the order does appear to be an appealable order directing action by a trustee, even though the act in question is somewhat ministerial in nature. If Allen disagreed with the order because of a separate agreement he had with Robert, it was incumbent upon him to file a timely motion for reconsideration or a notice of appeal from the order. After the time for appeal expired, however, this order had the force and effect of a final judgment, which Allen could attack only by establishing that the judgment was void. (See Estate of Keet (1940) 15 Cal.2d 328, 333-334 [order directing trustee to sell stock had the effect of a final judgment after time for appeal expired, and court lacked authority to enter a contrary order later].)

Because the October 2003 order had become final in the months after it was issued, the probate court lacked jurisdiction to reconsider it. Accordingly, the court’s order purporting to “rescind” this prior order must be reversed. (See Estate of Keet, supra, 15 Cal.2d at pp. 333-334.) However, it should be noted that our decision does not preclude application by any party for such further relief as may be appropriate to determine the contractual rights of the parties and, if necessary, to quiet title in the property.[4]

DISPOSITION

The order of the probate court is reversed. The parties shall bear their own costs on appeal.

_________________________

McGuiness, P.J.

We concur:

_________________________

Corrigan, J.

_________________________

Pollak, J.

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[1] Because the parties share the same surname, we refer to them by their first names to avoid confusion.

[2] Robert filed a motion to strike the respondent’s brief and exhibits in the respondent’s appendix that were not admitted in evidence below. Having deferred ruling until the merits, we now deny the motion to strike the brief, but we grant the motion and strike exhibits B and F in the respondent’s appendix. These exhibits have not been considered as part of the record on appeal.

[3] For example, such motions must be supported by affidavit and based on new or different facts, circumstances or law. (Code Civ. Proc., § 1008, subds. (a), (b).)

[4] At oral argument, Robert’s counsel agreed the trial court still has jurisdiction to determine factual issues pertaining to the division of trust assets.

Marriage of Carson

2005-12-02T13:52:00.000-08:00

Filed 12/1/05 Marriage of Carson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of SANFORD A. and DONNA L. CARSON.

SANFORD A. CARSON,

Appellant,

DONNA L. CARSON,

Respondent.

G035021

(Super. Ct. No. 97D011914)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Walter D. Posey, Temporary Judge. (Pursuant to Cal. Const. art VI, § 21.) Reversed and remanded.

Law Office of Patrick A. McCall and Patrick A. McCall for Appellant.

Patterson, Hanna & Associates and Alan W. Metcalf for Respondent.

* * *

Sanford A. Carson (father) appeals from an order increasing child support payments after the court imputed additional income to him based on a finding he had the ability to earn it. He contends this was error, claiming in part that Donna L. Carson (mother) had not shown a change of circumstances warranting any increase. It was error for the court to attribute additional income to father or to modify the original order crediting him with a 49 percent timeshare if he visits at least 30 percent of the time. Thus we reverse and remand for the court to make the proper calculation.

FACTS

In 2003, the court issued a judgment on reserved issues. The judgment, which runs some 25 pages with attached exhibits, covers a multitude of issues. Insofar as relevant to this appeal, it provides a detailed child custody and visitation schedule, which gives father slightly more than 30 percent of the children’s time, and also provides “that, for child support purposes the Court, on it[]s own motion, orders that so long as [father] exercises at least a [30 percent] timeshare with the minor children on average during the year, [father’s] timeshare factor shall be computed as [49 percent] for child support purposes. This order is made so as to allow the parties to be more flexible with each other in sharing the children and allowing the children to participate in their extracurricular activities.”

The judgment orders father to pay $682 per month for the youngest of two children and $449 per month for the oldest. The judgment also contains findings with respect to the income of both parents. It notes that mother was awarded income producing assets of $600,000 to which the court attributed earnings at the rate of 6 percent or $36,000 per year. The court found that mother had the ability to earn $3,000 per month, for a total income to her of $6,000 per month. With respect to father’s income, the judgment included findings that father has the ability to earn $8,000 per month based on his possession of M.D. and MBA degrees and that his income from investments is $8,000 per month.

The court also found “that for a substantial period of time at or near the end of the marital years, neither party worked and enjoyed simply a life style that was paid for through a return on investments, both community and separate, which, by prior stipulation the parties have agreed was in the sum of approximately [$12,000] per month.”

Eight months after the judgment was entered, mother filed an order to show cause seeking, among other things, to modify the amount of child support. Her declaration indicates that father previously filed a similar order to show cause, but it is not included in the record provided. Father’s declaration refers to the earlier order to show cause as having been filed to permit him to obtain a 50 percent timeshare for visitation and resolve some financial issues. During the hearing on the order to show cause both parties agreed that, whatever issues had been raised in the earlier order to show cause, they had been resolved except for child support and attorney fees.

In the declaration mother filed in support of the new order to show cause she appended unverified statements allegedly written by the children, which expressed dissatisfaction with visitation issues. Mother’s declaration states, among other things, that father “needs to pay more child support because he is not exercising the contact that was anticipated when the custody order was originally written and I am asking for guideline support.” The income and expense declaration attached to mother’s order to show cause indicates she received an average monthly salary of $3,066 and $2,224 in average monthly income from dividends and interest. She claimed average monthly expenses totaling $4,699. Mother noted that father spent 4.3 percent of the time with the oldest child and 38 percent of the time with the younger, and stated that she received $1,131 for child support.

Father filed a 27-page responsive declaration, properly verified, wherein he opposed changes in visitation and support. He denied that he had reduced his visitation with the children. Father’s income and expense declaration indicates he had not worked since the middle of 1996. He lists his average monthly income as $10,112 and his monthly expenses at $8,008.

No evidence was presented at the hearing. The court apparently decided the matter on the basis of the documents submitted and counsel’s argument pursuant to Code of Civil Procedure section 2009. (See Reifler v. Superior Court (1974)

39 Cal.App.3d 479, 483.) The court took the information contained in the parties’ financial statements and prepared a new “dissomaster” report based on these statements.

During the hearing mother’s lawyer acknowledged that father, in fact, had 31 percent visitation. The lawyer representing the Orange County Department of Child Support Services (an entity that has declined to participate in this appeal) argued that the provision of the judgment crediting father with a 49 percent timeshare with the children as long as he visited at least 30 percent of the time was “against public policy, because it actually calls for a below guideline order, without the necessary waivers, and it also encourages . . . father to visit less.”

The trial court noted that the judgment did not specify it could not be modified and was therefore subject to modification. It concluded that the prior “order [i.e., the judgment] is valid and enforceable, up until it’s modified.” Later in the exchange between court and counsel, the court recognized that mother “would have to show some change in circumstances . . . .”

The focus of the argument was whether the court should recompute child support based on the finding in the judgment that father had the capacity to earn an additional $8,000 per month based on his possession of M.D. and MBA degrees and based on the actual visitation timeshare rather than one imputed to father in the judgment. After the conclusion of argument, most of which was not relevant to the issues before us, the court made a finding attributing the additional $8,000 income to father, used the actual visitation of 31 percent, and increased the child support accordingly.

DISCUSSION

The thrust of father’s argument here is that because he had retired from his profession many years before the marriage terminated, the court should not have computed child support on the basis of his unexercised ability to increase his income by returning to work. Subsidiary to this argument, father complains that the court should not have ignored the terms of the earlier judgment because mother failed to present evidence to demonstrate that, at the time of the hearing, father actually had the ability to return to work. Although not exactly phrased in these terms, we perceive the latter contention to be that mother had not demonstrated a material change of circumstances relating to imputation of income to father and to the visitation timeshare to support a modification of the child support payments.

“‘It is the general rule that a final judgment or order is res judicata even though contrary to statute where the court has jurisdiction in the fundamental sense, i.e., of the subject matter and the parties.’ [Citations.]” (In re Marriage of Murray (2002)

101 Cal.App.4th 581, 599; see also Pacific Mut. Life Ins. Co. v. McConnell (1955)

44 Cal.2d 715, 725.) So we start with the proposition that the judgment fixing child support that expressly refused to attribute income to father based on his capacity to work, and thus implicitly recognized that father’s retirement was legitimate, was a final judgment entitled to res judicata effect. The same thing is true about the portion of the judgment that permitted visitation exceeding 30 percent to be treated for child support purposes as being the equivalent of 49 percent visitation.

Mother’s reliance on In re Marriage of Simpson (1992) 4 Cal.4th 225 and other cases that impute income to a supporting parent based on the ability to work and availability of work opportunities is misplaced. The original trial judge could have concluded that the potential for any earnings father would realize if he returned to his profession should have been included in determining the amount of child support. Likewise, the trial judge could have used the actual visitation timeshare. It did neither. Perhaps it was error not to do so, as respondent contended. But we do not have a record of the earlier proceedings that would permit us to reach such a conclusion. And whether it was error or not is irrelevant. A final judgment is res judicata, even if erroneous. (Schultz v. Harney (1994) 27 Cal.App.4th 1611, 1619, fn. 6.)

Since “[it] would be incongruous to allow an appealable order to become final and yet to concede the power of a court at a later date, upon the same state of facts, to issue an order nullifying it” (Snyder v. Snyder (1933) 219 Cal. 80, 81), it is generally held that the “trial court is without authority to make an order reducing the amount of alimony [or support payments] awarded in an interlocutory [or final] decree of divorce in the absence of a showing that there has been a change in conditions subsequent to the entry of [such] decree . . . .” (Ralphs v. Ralphs (1948) 86 Cal.App.2d 324, 325; see also In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1292).

There was a change. Mother’s income decreased from $6,000 per month to $5,300 per month and father’s income decreased from $12,000 per month to $10,100 per month. It was for the trial court to determine whether this was a material change of circumstance and, if so, base its calculations on these facts. But this did not permit the court to revisit the wisdom of the determination implied in the earlier judgment that father’s retirement was legitimate and unrelated to his duty to support his children. Nor did it permit the trial court to reevaluate the earlier determination regarding visitation timeshares.

We therefore remand the matter to the trial court to recalculate the proper amount of child support without attributing an ability to earn additional income to father. The court shall also give effect to the provision in judgment crediting father with a 49 percent timeshare as long as he visits the children at least 30 percent of the time.

DISPOSITION

The order is reversed and the matter is remanded to the trial court to enter an appropriate order consistent with the directions contained herein. In the interest of justice, the parties shall bear their own respective costs.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.

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P. v. De La Cruz

2005-12-02T13:51:00.001-08:00

Filed 11/30/05 P. v. De La Cruz CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

THE PEOPLE,

Plaintiff and Respondent,

FRANCISCO DE LA CRUZ,

Defendant and Appellant.

C047809

(Super. Ct. No. SF091085A)

A jury found defendant Francisco De La Cruz committed battery upon another ward in his juvenile detention unit (Pen. Code, § 242) and that he committed the battery to benefit a criminal gang in violation of Penal Code section 186.22, subdivision (d). On appeal, defendant claims ineffective assistance of counsel, because defense counsel failed to (1) object to testimony by the gang expert that the offense was committed to benefit a gang of which defendant was an active member or (2) request a limiting instruction directing the jury to consider the evidence of other crimes only for the purpose of considering defendant’s motivation in committing the attack.

We find no basis for reversal and affirm the judgment.

BACKGROUND

At the time of these events, defendant was a ward at a youth correctional facility. Two correctional officers testified at trial they saw defendant run up to another ward named Lalo Flores as Flores was leaving the chapel; defendant took off his jacket and began to punch Flores. After defendant landed a few punches, Flores began fighting back. The fight lasted about a minute before officers used a mace-like spray on the combatants.

Defendant was charged with misdemeanor battery (Pen. Code, § 242) and with having committed the battery to benefit a criminal gang, in violation of Penal Code section 186.22, subdivision (d). Evidence at trial chiefly concerned whether defendant’s fight with Flores was committed for the benefit of a criminal street gang, within the meaning of Penal Code section 186.22.

Lieutenant Eddie Jeffs, a gang expert who has previously served as gang information coordinator in two youth correctional facilities, testified that nearly 60 percent of the wards detained with defendant are active gang members. One such gang is the Nortenos^{^[1]}, who identify themselves by writing Norteno or “norte”, and are associated with the letter N and the number 14 (XIV). Inside the facility, Nortenos’ primary criminal activities include assault, extortion, and attempted murder.

Few members of the Sureno gang -- traditional enemies of the Nortenos -- are housed in the region’s youth facility, so the Nortenos’ rivals include members of the Fresno Bulldogs gang. Nortenos also attack former members of their own gang, referred to as ex-North or “dropouts”; a dropout who can be attacked on sight is said to have been “green-lighted.” A Norteno ward who has committed rape or child molestation will be treated as a dropout, ostracized and attacked on a regular basis.

Lieutenant Jeffs opined that defendant is an active Norteno member, and based his opinion on two factors. First, defendant bears tattoos representing the gang: the word “Norte” appears over his right eye, and is tattooed on his chest in big block letters. He has one dot tattooed on his right forefinger and four dots on his left hand (signifying 14), and “XIV” is tattooed on his back. Defendant’s right hand bears a tattoo of a Huelga bird; adopted from the symbol of migrant farm workers, the Huelga represents the struggle of Nortenos.

Second, defendant had participated while in custody in other skirmishes Jeffs described as “gang assaults” or “gang-related incidents.” Over defense counsel’s continuing Evidence Code section 352 objection, Jeffs testified from a review of incident reports that defendant had been involved in eight separate incidents:

July 24, 2000: Defendant engaged in a one-on-one fight with a Sureno gang member.

September 28, 2000: Defendant engaged in a one-on-one fight with a Fresno Bulldog member.

December 19, 2000: Defendant fought in an altercation between Nortenos and Fresno Bulldogs.

December 20, 2000: Defendant and 11 other Nortenos attacked a ward.

July 8, 2001: Lalo Flores (the same victim alleged in the instant action) was attacked by defendant and three other Norteno members.

Sometime in March 2002, defendant was seen throwing punches during an altercation between Nortenos and whites.

July 1, 2003: Defendant and four other Nortenos attacked some ex-Norteno (or dropout) students in a classroom.

November 24, 2003: Defendant was seen fighting in a group disturbance between the Nortenos and members of the Bloods or Bays.

Finally, Lieutenant Jeffs opined that defendant’s conduct in attacking Flores was gang-related and benefited the Nortenos because it was committed by an active gang member (defendant) against Flores, an ex-Norteno gang member whose committing offense was rape, and who had been “green-lighted.” Jeffs explained that Norteno gang culture thus obliged defendant to attack Flores on sight. Had defendant failed to do so, other Nortenos would have ostracized and attacked defendant. Defendant’s attack on Flores elevated the status of the group by reminding others that Nortenos will attack anybody, thereby engendering fear and respect. It also demonstrated defendant’s allegiance to the gang.

Defendant did not testify. His theory of defense was that the altercation with Flores was a simple, non-gang related fistfight. Witnesses to the fight agreed defendant said nothing to indicate he was motivated by gang loyalty.

DISCUSSION

Defendant contends his trial attorney was ineffective for failing to object to Lieutenant Jeffs’s testimony that he attacked Flores for the benefit of a criminal street gang, and for failing to request a limiting instruction directing the jury to consider evidence of defendant’s involvement in other gang-related assaults only to provide the basis for Jeffs’s opinion that defendant was a Norteno, and not as proof that he was a person of bad character who had the disposition to commit such crimes.

The burden of proving ineffective assistance of counsel is on the defendant. (People v. Dickey (2005) 35 Cal.4th 884, 925.)

He must first show counsel’s performance was deficient because his representation fell below an objective standard of reasonableness under prevailing professional norms. He also must show prejudice flowing from counsel’s performance. In this respect, prejudice means there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. (Ibid.; People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.) A reasonable probability is a probability sufficient to undermine confidence in the outcome. (People v. Dennis (1998) 17 Cal.4th 468, 540-541; see Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [80 L.Ed.2d 674].)

We consider first defendant’s contention his trial counsel erred in failing to object to Lieutenant “Jeffs’s opinion on the ultimate fact that [defendant] committed the battery with the intent to benefit the Northerner gang.” He claims Jeffs’s testimony violated Penal Code section 29, which prohibits expert testimony as to “whether the defendant had or did not have the required mental states . . . for the crimes charged.” We find no cause for reversal.

Defendant was charged with a gang enhancement under the STEP Act (Pen. Code, § 186.20 et seq.). “[T]o subject a defendant to the penal consequences of the STEP Act, the prosecution must prove that the crime for which the defendant was convicted had been ‘committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.’ [Citation.] In addition, the prosecution must prove that the gang (1) is an ongoing association of three or more persons with a common name or common identifying sign or symbol; (2) has as one of its primary activities the commission of one or more of the criminal acts enumerated in the statute; and (3) includes members who either individually or collectively have engaged in a ‘pattern of criminal gang activity’ by committing, attempting to commit, or soliciting two or more of the enumerated offenses (the so-called ‘predicate offenses’) during the statutorily defined period.” (People v. Gardeley (1996) 14 Cal.4th 605, 616-617; Pen. Code, § 186.22.)

As a general rule, a trial court has wide discretion to admit or exclude expert testimony, and an appellate court may not interfere with the exercise of that discretion unless it is clearly abused. (People v. Page (1991) 2 Cal.App.4th 161, 187.) “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.] Such evidence is admissible even though it encompasses the ultimate issue in the case. [Citations.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1371; Evid. Code, § 801, subd. (a).) On the other hand, “[e]xpert opinion is not admissible if it consists of inferences and conclusions which can be drawn as easily and intelligently by the trier of fact as by the witness.” (People v. Torres (1995) 33 Cal.App.4th 37, 45.)

Courts have held that a gang expert may testify on matters that are sufficiently beyond common experience, such as gang territories, culture, practices, and habits, if such testimony would assist the trier of fact. (People v. Gardeley, supra, 14 Cal.4th at p. 617; People v. Valdez (1997) 58 Cal.App.4th 494, 506.) This testimony, too, is admissible even if it encompasses ultimate issues in a case. (People v. Valdez, supra, at pp. 507-508.)

Moreover, “[t]he People are entitled to ‘introduce evidence of gang affiliation and activity where such evidence is relevant to an issue of motive or intent.’ [Citation.] ‘[B]ecause a motive is ordinarily the incentive for criminal behavior, its probative value generally exceeds its prejudicial effect, and wide latitude is permitted in admitting evidence of its existence.’ [Citations.]” (People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1550; see also People v. Martin (1994) 23 Cal.App.4th 76, 81 [gang activity or membership admissible where “important to the motive . . . even if prejudicial”].)

Thus, “whether and how a crime was committed to benefit or promote a gang” is an appropriate subject for expert testimony. (People v. Killebrew (2002) 103 Cal.App.4th 644, 657; e.g., People v. Gardeley, supra, 14 Cal.4th at p. 619 [gang expert testimony admissible to prove current offense was committed to benefit gang and with intent to promote gang interests]; People v. Valdez, supra, 58 Cal.App.4th at pp. 507-509 [same].)

Here, the expert testimony was admissible because it could help the jury understand how a one-on-one fistfight -- which lacked a “gang” of participants -- could nonetheless benefit defendant’s gang, the Nortenos. Lieutenant Jeffs explained why an active member of the Nortenos (such as defendant) would feel compelled to attack a Norteno dropout (such as Lalo Flores), and why he would do so partly to avoid being ostracized or attacked himself by other members of his gang. Jeffs’s testimony illuminated for the jurors how defendant’s actions benefited the gang by reinforcing gang discipline and helping to maintain its status as a force to be reckoned with and feared even inside the youth authority facility.^{^[2]}

It is well settled that counsel is not ineffective in failing to make an objection when the objection would have likely been overruled by the trial court. (See People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450 [counsel not ineffective in failing to object to introduction of the gang evidence likely to be admissible in any event].) Because the testimony elicited from Lieutenant Jeffs was within established parameters, it was admissible and trial counsel’s failure to object cannot be error.

II.

Gang-related evidence admissible to prove charges alleged under Penal Code section 186.22 is frequently admitted for a limited purpose only, but the parties must request a limiting instruction. (See People v. Ferraez (2003) 112 Cal.App.4th 925, 934.) The trial court indicated it planned to instruct the jury on the use of gang evidence at the appropriate time but failed to do so.^{^[3]}

Defendant contends his trial attorney rendered ineffective assistance of counsel by failing to request a limiting instruction directing the jury to consider evidence of defendant’s involvement in other gang-related assaults only to provide the basis for Jeffs’s opinion that defendant was a Norteno, and not as proof that he was a person of bad character who had the disposition to commit such crimes.

As we noted above, to establish this claim, defendant must show “‘that counsel’s performance was deficient . . . [and] that, absent counsel’s error, it is reasonably probable that the verdict would have been more favorable to him.’” (People v. Hernandez, supra, 33 Cal.4th at pp. 1052-1053.) If the record does not disclose why counsel failed to act, we must reject the contention unless there could be no satisfactory explanation. (Id. at p. 1053; People v. Scott (1997) 15 Cal.4th 1188, 1212.)

Here, we do not linger over the question of whether trial counsel should have requested a limiting instruction because it is not reasonably probable that results more favorable to defendant would have resulted had a limiting instruction been given. (See People v. Ferraez, supra, 112 Cal.App.4th at p. 932.) The fact of the battery was conceded, so whether defendant’s having engaged in prior fights showed a propensity to fighting was hardly material to the jury’s determination. That defendant had engaged in other fights with members of rival gangs or dropouts was relevant to the question of whether his attack on Flores was committed for the benefit of the Norteno gang. According to Lieutenant Jeffs, defendant’s participation in prior gang-related fights was evidence he remained an active gang member which, in turn, helped establish his motivation for attacking the dropout victim Flores. And, as we have explained, evidence of defendant’s possible gang motivation was properly admitted.

Moreover, the prosecutor did not imply or argue that the other fights evidence could be used to establish bad character or criminal propensity. We conclude that a limiting instruction “would not have significantly aided defendants under these facts or weakened the strength of the evidence of guilt the jury properly could have considered.” (People v. Hernandez, supra, 33 Cal.4th at p. 1054.)

Having rejected defendant’s first claim of error, and having concluded that the lack of a limiting instruction did not prejudice defendant, we reject his claim that the cumulative impact of those asserted errors dictates reversal.

DISPOSITION

The judgment is affirmed.

BLEASE , J.

We concur:

SCOTLAND , P. J.

ROBIE , J.

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^{^[1]} The prosecutor also referred to Nortenos as Northerners.

^{^[2]} People v. Killebrew, supra, 103 Cal.App.4th 644, confirms that expert testimony is admissible to show the “motivation for a particular crime, generally retaliation or intimidation” and “whether and how a crime was committed to benefit or promote a gang . . . .” (Id. at p. 657.) Defendant’s reliance on Killebrew for a contrary conclusion is misplaced, because its facts are distinguishable. In Killebrew, in response to hypothetical questions, the People’s gang expert exceeded the permissible scope of expert testimony by opining on “the subjective knowledge and intent of each” of the gang members involved in the crime. (Id. at p. 658.) Specifically, he testified that each of the individuals in a caravan of three cars (including defendant) knew there was a gun in the Chevrolet and a gun in the Mazda and jointly possessed the gun with everyone else in the three cars for mutual protection. (Ibid.) Killebrew does not preclude the prosecution from eliciting expert testimony to provide the jury with information from which the jury may infer the motive for a crime; Killebrew prohibits an expert from testifying to his or her opinion of the knowledge or intent of a defendant on trial. (Ibid.)

^{^[3]} When it granted, over defense counsel’s Evidence Code section 352 objection, the prosecution’s in limine motion to allow admission of evidence defendant was involved in other gang-related assaults while in juvenile custody as a basis for his opinion that defendant is a gang member for the purpose of establishing his attack on Flores was committed for the benefit of a criminal street gang (within the meaning of Pen. Code, § 186.22, subd. (d)), the court announced “I’m going to have to advise the jury that it’s not to be relied upon for the proof of the fact that the actual attack occurred, only for proof of the fact that it was done for -- can be considered for [in furtherance of a criminal] street gang activity.”

Heydari v. State Farm Fire and Casualty

2005-12-02T13:51:00.000-08:00

Filed 12/1/05 Heydari v. State Farm Fire and Casualty CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

MEHDI HEYDARI et al.,

Plaintiffs and Appellants,

STATE FARM FIRE AND CASUALTY COMPANY,

Defendant and Respondent.

2d Civil No. B179465

(Super. Ct. No. SC031573)

(Ventura County)

Plaintiffs Medhi and Fariba Heydari appeal from a summary judgment entered in favor of defendant State Farm Fire and Casualty Company (State Farm). They argue that State Farm breached its contractual obligation to fully compensate them for earthquake damage covered by their homeowner's insurance policy. The trial court concluded that plaintiffs did not raise a triable issue of material fact because they made no showing sufficient to rebut State Farm's evidence that it had paid them for their actual cost of repair. We affirm.

BACKGROUND

Plaintiffs own a house on Blue Ridge Court in Westlake Village. The home was insured under a State Farm policy that included earthquake coverage. The policy had a $270,000 coverage limit for damage to the dwelling with a $13,500 deductible for earthquake losses.

Under the terms of the policy, covered losses to a building are settled as follows: "4. Loss Settlement. . . . [¶] c. Buildings under Coverage A at replacement cost at the time of loss without deduction for depreciation, subject to the following: [¶] (1) We will pay the cost of repair or replacement, without deduction for depreciation, but not exceeding the smallest of the following amounts: [¶] (a) the limit of liability under this policy applying to the building; [¶] (b) the replacement cost of that part of the building damaged for equivalent construction and use on the same premises; or [¶] (c) the amount actually and necessarily spent to repair or replace the damaged building. [¶] (2) We will pay the actual cash value of the damage to the building, up to the policy limit, until actual repair or replacement is completed. [¶] (3) You may disregard the replacement cost loss settlement provisions and make claim under this policy for loss or damage to buildings on an actual cash value basis and then make claim within 180 days after loss for any additional liability on a replacement cost basis." The policy provides that any lawsuits under its provisions must be brought within one year of the loss or damage for which relief is sought.

Plaintiffs submitted a claim under the policy after their home was damaged in the February 1994 Northridge earthquake. State Farm prepared a repair estimate totaling $82,716.07. In May 1994, after subtracting $3,123.95 for depreciation and $13,500 for the deductible, it paid plaintiffs $66,092.12 for the damage to the structure. (See Community Assisting Recovery, Inc. v. Aegis Security

Ins. Co. (2001) 92 Cal.App.4th 886, 894.)^{^[1]} State Farm advised plaintiffs in writing that they might be entitled to additional funds if they elected to repair the home and could in that event recoup the amount deducted for depreciation.

Code of Civil Procedure section 340.9 became effective on January 1, 2001, and revived certain time-barred claims arising from the Northridge earthquake. Subdivision (a) of that section provides in part, "Notwithstanding any other provision of law or contract, any insurance claim for damages arising out of the Northridge earthquake of 1994 which is barred as of the effective date of this section solely because the applicable statute of limitations has or had expired is hereby revived and a cause of action thereon may be commenced provided that the action is commenced within one year of the effective date of this section." On December 31, 2001, plaintiff filed suit against State Farm for breach of contract and breach of the covenant of good faith and fair dealing. The complaint alleged that State Farm had underpaid plaintiff's earthquake claim in 1994.

State Farm filed a motion for summary judgment. It presented evidence that it had paid plaintiffs $66,092.12 for earthquake damage to the home, based on a repair estimate of $82,716.07. This amount had been based on estimates by MVI Construction, The Chimney Sweeper and plaintiffs. State Farm also presented evidence that plaintiffs could not demonstrate that they had spent more than the amount it had paid to make the necessary repairs. In his deposition, Mehdi Heydari had testified that he could only produce receipts for $6,926.82 and did not know whether he had spent more than the $66,092.12 paid by State Farm.

In opposition to summary judgment, plaintiffs presented the declaration of contractor James Smart, who opined that the cost of repair was significantly greater than State Farm had estimated. Smart had complied a detailed estimate based on the damages described in the State Farm Estimate, and concluded that the cost of repair was $229,337.56.

The trial court granted summary judgment in favor of State Farm. It concluded that Smart's declaration raised no triable issue of fact as to whether State Farm's estimate covered the cost of repair when plaintiffs could not prove that what they had spent on repairs exceeded the payment from State Farm.

DISCUSSION

Summary judgment is appropriate when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. A defendant seeking summary judgment has the burden of establishing through admissible evidence a complete defense to the action or the absence of an element essential to plaintiff's case. We independently review the motion on appeal to determine the effect of the supporting declarations and evidence. (Code Civ. Proc., § 437c, subds. (c) & (f)(1); Rosenblum v. Safeco Ins. Co. (2005) 126 Cal.App.4th 847, 856.)

When the moving party makes a prima facie showing that it is entitled to summary judgment, the burden shifts to the opposing party to show that a triable issue of fact exists. (Code of Civ. Proc., § 437c, subd. (n)(1).) "An issue of fact becomes one of law and loses its 'triable' character if the undisputed facts leave no room for a reasonable difference of opinion." (Rosenblum v. Safeco Ins. Co., supra, 126 Cal.App.4th at pp. 856-857.)

Plaintiffs' action against State Farm was predicated on the theory that State Farm had breached the insurance contract by giving them less money on their 1994 claim than was necessary to make the repairs to their property. As the party seeking summary judgment, State Farm bore the initial burden of making a prima facie showing that it was entitled to judgment as a matter of law. It carried this burden by presenting evidence that it had based its estimate on the damage actually caused by the earthquake and by further showing that plaintiffs could not show the amount spent on repairs had exceeded this amount. Having made this showing, it was incumbent upon plaintiffs to present some evidence that State Farm's estimate did not cover the cost of repairing the damage or did not take into account certain damage to the property.

Plaintiffs relied exclusively on the declaration of James Smart, a contractor who opined the "cost of repair of earthquake damages at the Heydari property are [sic] in excess of the amount of $66,092.12 State Farm paid to the Heydari parties for earthquake damages to their residence." In essence, Smart's declaration proves that he would have recommended different a different method of accomplishing some of the repairs and would have charged more for those repairs if he had done the work himself. But plaintiffs have not shown, and have not attempted to show, that the repairs were not made or were made for an amount greater than the State Farm estimate.

Plaintiffs suggest that Code of Civil Procedure section 340.9 entitles them to file a supplemental claim under the insurance contract with State Farm. Section 340.9 eliminates an insurance company's statute of limitations defense in certain circumstances, but it does not affect the substantive rights of the parties to an insurance contract. (Rosenblum v. Safeco Ins. Co., supra, 126 Cal.App.4th at p. 858; 20th Century Ins. Co. v. Superior Court (2001) 90 Cal.App.4th 1247, 1270.) Summary judgment was not granted because plaintiffs filed their claim too late; it was granted because they failed to make any showing that State Farm had underpaid their claim.

In assessing the rights of the parties before us, we cannot simply look to the two different estimates (State Farm's 1994 estimate versus Smart's 2004 estimate) and say there is a triable issue of fact as to the repair costs because the experts disagree. The fact is, repairs have been made and plaintiffs bear the ultimate burden of showing that those repairs cost more than the amount paid by State Farm. The insurance policy allowed them to receive payment for the cash value of the damage to their home, subject to an additional payment within 180 days if the actual cost of repairs was greater. They were not entitled to recover more than the actual repair costs, and have failed to make any showing as to what those repair costs actually were. State Farm has demonstrated that an essential element of plaintiffs' case cannot be satisfied. Summary judgment was properly entered in State Farm's favor.

The judgment is affirmed. Costs on appeal are awarded to respondent State Farm.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Thomas J. Hutchins, Judge

Superior Court County of Ventura

______________________________

Jeffrey D. Diamond for Plaintiffs and Appellants.

Crandall, Wade & Lowe, James L. Crandall, Edwin B. Brown, Michael J. McGuire, Matthew F. Batezel; Robie & Matthai, James R. Robie; LHB Pacific Law Partners and Clarke B. Holland, for Defendant and Respondent.

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^{^[1]} In the absence of an agreement between the insurer and the insured, the actual cash value of the loss is synonymous with fair market value, or "'the price that a willing buyer would pay a willing seller'" without accounting for depreciation. (Jefferson Ins. Co. v. Superior Court (1970) 3 Cal.3d 398, 402.) Nothing prevents an insured from agreeing to a valuation based on replacement cost less depreciation, which may be more advantageous to the insured. (Community Assisting Recovery, Inc. v. Aegis Ins. Co., supra, 92 Cal.App.4th at p. 894; Cheeks v. California Fair Plan Assoc. (1998) 61 Cal.App.4th 423, 428.) Plaintiffs never disputed the methodology of the insurance estimate or requested an appraisal, and they do not now argue that the use of a fair market value approach would have yielded greater compensation.

Ney v. Murray

2005-12-02T13:46:00.000-08:00

Filed 12/1/05 Ney v. Murray 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

PHILIPPE NEY et al.,

Plaintiffs and Appellants,

JEAN PIERRE MURRAY,

Defendant and Respondent.

B174255

(Los Angeles County

Super. Ct. No. SC069176)

APPEAL from a judgment of the Superior Court of Los Angeles County,

Lorna Parnell, Judge. Affirmed.

Woollacott Jannol, and Jay A. Woollacott for Defendant and Respondent.

Michael R. Blaha for Plaintiffs and Appellants.

_________________________

INTRODUCTION

Plaintiffs Philippe Ney and Jacqueline (“Keline”) Howard brought the underlying contract and fraud action against numerous defendants, including Jean Pierre Murray. The case was resolved by the trial court’s rulings that granted Murray’s motion for nonsuit and declined to apply the alter ego doctrine to hold him responsible as a member of Surf Channel, LLC., a limited liability company. Plaintiffs appeal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual synopsis.

a. The players and creation of Surf Channel.

Viewing the evidence according to the applicable rules (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1327), it shows that the events leading up to this lawsuit occurred between 1997 and 1999. We are told that Surf Channel is an one-hour cable television program about surfing and other related sports that is made from in-house production and the acquisition of footage produced by others.

Plaintiff Howard, born in France but a U.S. citizen who lives in Los Angeles, ran a company called “Bureau L. A.,” through which she rendered freelance journalism services. In 1997, Cyril Viguier, a French citizen, contacted Howard with the idea of creating a cable channel about surfing. At the time, Viguier was living in France, and needed someone in Los Angeles to look into the feasibility of his idea. Howard began by contacting cable television outlets in southern California to learn about production requirements.

In March 1998, Viguier, Stephane Attia, and another, retained attorney David Steiner to create an entity for their surf channel project. Surf Channel, LLC, Surf Channel Marketing, and Surf Channel Productions were formed in March 1998.

Viguier moved to Los Angeles in March 1998 and Howard’s work increased. Initially, production was done at Howard’s office and house. Production included pre-production and meetings. The cameramen, sound engineers, and Howard’s full-time assistant came to her house. She saw Viguier and Attia frequently during this time. Howard periodically sent invoices to Surf Channel. When Surf Channel’s offices moved to Sunset Boulevard in the summer of 1998, Howard’s work for them diminished. Howard worked on Surf Channel’s behalf between October 1997 and March 1998.

Plaintiff Ney, also of French origin, was a film editor working for Integrated Imagination when Howard asked Integrated Imagination to work for Surf Channel. Soon after Ney met Attia and then Viguier, the three began discussing the possibility of Ney working directly for Surf Channel rather than through Integrated Imagination. Some of the discussions occurred at Howard’s house. After Integrated Imagination closed down, Attia asked Ney to edit the show for Surf Channel. He began working for Surf Channel in March 1998.

Defendant Jean Pierre Murray was an investor in Surf Channel. Over the spring and summer of 1998, Murray invested $200,000 in the company. He did this through Carillo Investments, an entity in which he held an interest. In return, Carillo received a one‑third membership interest in Surf Channel.

b. Plaintiffs’ claims to ownership of Surf Channel.

Howard testified that in the beginning, Viguier and she agreed that they and Attia would be “three equal people” in the enterprise. In June 1998, Surf Channel sent Howard a letter referring to her 10 percent interest (five percent in Surf Channel, and five percent in Surf Channel Productions). When Howard complained about the size of her interest, Viguier responded that equity space had to be left open for investors. Ultimately, Howard agreed to the figure because she trusted Viguier and because the company was new. She accepted the amount in a letter to Steiner dated July 1, 1998. Howard never received a document in the nature of a membership certificate reflecting her interest in Surf Channel; and she never asked for one.

Ney, Attia, and Viguier began negotiating the financial terms of Ney’s work for Surf Channel in April 1998. In June or July 1998, Surf Channel promised Ney an equity interest in the company. Ney proposed that he provide discounted editing services and a discounted rental fee for his editing equipment in return for which he would obtain equity in Surf Channel commensurate with the services he provided. He originally proposed a five percent equity participation, but increased that figure to at least eight percent. Ney put his proposals in writing, and gave the document first to Attia in June 1998, and later to Viguier in October 1998. Neither Attia nor Viguier signed the document, although Viguier told Ney that his proposal was “fine.” Ney’s proposal was rejected by Surf Channel’s counsel.

Ney worked for Surf Channel until just before Christmas 1998, when Surf Channel’s checks written to him bounced. Ney also never saw the operating agreement for the limited liability company. Nor did he see an assignment of a membership interest to him; and he received no certificate evidencing a membership interest. He never asked for these documents. Nonetheless, Ney believed he had an agreement with Surf Channel for equity in the company, and testified that he had rendered services on Surf Channel’s programs in reliance on that agreement.

Howard and Ney concede in their opening brief that Murray never made any misrepresentations directly to either of them. Howard testified that Murray made no promises to her about equity in a Surf Channel entity. Nor did Howard ever claim to Murray that she had an equity interest in Surf Channel. Likewise, Ney never received a signed document from Murray indicating that Ney held an equity interest in Surf Channel, and Murray never made a promise nor ever entered into an oral or written agreement with Ney about Ney’s interest in Surf Channel. Nor did Ney ever have a conversation with Murray about how he was being compensated for his editing services for Surf Channel. Still, Ney believed that Murray was aware of Ney’s claim to equity because not only was Murray in charge of finances, but he was with Viguier and Attia on a daily basis.

c. The sale of Surf Channel.

On February 2 or 3, 1999, Viguier told Howard that the company was being liquidated and he wanted Howard to sign a letter to protect her interests. She refused to sign. The next day, Attia came to Howard and, in a very aggressive manner, asked her to sign the letter. Infuriated, Howard refused again. In March 1999, Howard received a letter from a new attorney representing Surf Channel, Gerard Soussan. She did not sign that letter either. None of the letters is found in the appellate record and their contents are not made apparent.

On February 5, 1999, Attia sent Ney a facsimile, which Ney believed was to pay $15,000 in bounced Surf Channel checks written to him. The letter added that Ney would receive “ ‘no further compensation of any kind whatsoever, such as monetary compensation, equity, assets, profit-sharing, or otherwise . . . .’ ” Ney understood by that letter that his interest in Surf Channel had been released. Instead of signing that facsimile, Ney responded with his own facsimile on February 8, 1999, proposing a third alternative to Attia and Viguier under which the three would each share in 50 percent of the equity of a new company called the Polo Channel. No one on behalf of Surf Channel signed Ney’s proposal.

The following month, on March 4, 1999, Murray sold his interest in Surf Channel for $300,000 to a group of investors headed by Selim Zilkha, a friend of Murray’s father. Zilkha created a Delaware limited liability company called Surf Channel (“Surf Channel Delaware”). Murray’s involvement with Surf Channel ended with the buyout of his interest. At the time of his buyout, Murray was unaware of any other transaction involving the transfer of Surf Channel’s assets. Before his buyout, Murray knew only that Zilkha and his affiliated group were going to buy Surf Channel.

It turns out that Viguier and Attia also transferred their interests in Surf Channel California to Zilkha’s group. But in return, they received a 25 percent interest each in the Delaware company. Murray testified he received no membership interest in the Delaware entity as part of the sale of his interests in the California company.

Murray did not learn of Viguier’s and Attia’s interest in the new company until Viguier told him after the sale. The following month, April 1999, Viguier and Attia entered into an agreement with Murray in which the two agreed to convey to Murray a five percent interest each in the net profits of Surf Channel Delaware, provided Murray complied with the terms of the agreement and only in the event the Delaware company were sold to a third party or went public and Viguier and Attia received distributions of their share of the net profits.

Neither Ney nor Howard received anything in the Zilkha transaction.

2. Procedural synopsis.

Ney and Howard each brought a complaint against 13 defendants, including Viguier, Attia, and Murray. The cases were consolidated for all purposes. We are told that Attia lives in Bali and was never served with a complaint. Plaintiffs dismissed the Zilkha-related defendants before trial.

Hence, plaintiffs proceeded at trial against Murray, Viguier, and Surf Channel on their complaints alleging, with respect to Murray, that he entered into contracts with them in which they would perform services in exchange for membership interests in Surf Channel. Plaintiffs alleged that Murray breached these agreements and their implied covenant of good faith and fair dealing. Additionally, plaintiffs charged Murray with fraud. They alleged that Murray made false representations to induce plaintiffs to perform services in exchange for interests in Surf Channel. Finally, plaintiffs sought quantum meruit for the reasonable value of their services, and sought to pierce the corporate veil to establish that Murray and Viguier were alter egos of Surf Channel and hence personally liable for Surf Channel’s obligations.

The case was tried before a jury except for the alter ego allegations. At the close of plaintiffs’ case, Murray moved for nonsuit of all four claims brought by both plaintiffs, other than the alter ego claims. Plaintiffs stipulated to nonsuit of the claims for breach of contract and of the implied covenant of good faith and fair dealing. The court granted nonsuit according to the stipulation, and then granted Murray’s motion for nonsuit of the fraud and quantum meruit claims. Murray remained a defendant with respect to the alter ego claim.

Turning to Viguier and Surf Channel, the jury returned a verdict finding them liable for fraud and assessing compensatory and punitive damages. Before judgment was entered against Viguier and Surf Channel, plaintiffs dismissed the two from the action.[1]

The court then turned to the alter ego allegations. Following presentation of evidence and argument, the court ruled that alter ego liability could be imposed for conduct occurring in 1998 and 1999, before the Corporations Code was amended as of January 1, 2000, to provide for application of alter ego liability to members of a limited liability company. (Stats. 1999, ch. 490, § 3, Corp. Code, § 17101, subd. (b).) However, the court ruled that plaintiffs had failed to carry their burden to show that alter ego liability should be imposed on Murray. The court found that declining to find alter ego would not work an injustice. Judgment was entered in favor of Murray and against plaintiffs. Plaintiffs’ timely appeal followed.

CONTENTIONS

Plaintiffs contend the trial court erred in granting Murray’s motion for nonsuit of their fraud cause of action and in ruling that Murray was not an alter ego of Surf Channel. Plaintiffs also contend the trial court erred in refusing to instruct the jury on fraud.

DISCUSSION

I. Nonsuit.

a. Standard of review.

“ ‘A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.]’ ” (Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 262.)

When reviewing a judgment of nonsuit in favor of defendant at close of plaintiff’s case (Code Civ. Proc., § 581c), we consider only the grounds specified by the moving party in support of its nonsuit motion. (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839.) Based on the same analysis as utilized by the trial court, we must determine whether the plaintiff presented “any substantial issue of fact for the determination of the jury . . . . [T]here must be a substantial conflict in evidence to deprive the court of this power. [Citation.]” (Gerard v. Ross (1988) 204 Cal.App.3d 968, 981.) We do not weigh the evidence or consider the credibility of the witnesses. Instead, we are required to accept as true the evidence most favorable to the plaintiff, while disregarding conflicting evidence. (Alpert v. Villa Romano Homeowners Assn., supra, 81 Cal.App.4th at p. 1327.) “ ‘ “ ‘The judgment of the trial court cannot be sustained unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’ ” ’ [Citation.]” (Ibid.) “ ‘ “When there is doubt in the court’s mind about the inferences that may reasonably be drawn from the evidence it is the duty of the court to let the case go to the jury. . . . [Citation.]” ’ ” (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1313, italics omitted.)

“ ‘If a plaintiff produces no substantial evidence of liability . . . then the granting of a nonsuit is proper.’ And, while the court may infer facts from the evidence, those inferences must be logical and reasonable. The decision about what inferences can permissibly be drawn by the fact finder are questions of law for determination by the court, inasmuch as an inference may not be illogically and unreasonably drawn, nor can an inference be based on mere possibility or flow from suspicion, imagination, speculation, supposition, surmise, conjecture or guesswork. [Citations.]” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1580-1581.)

“ ‘Because a successful nonsuit motion precludes submission of plaintiff’s case to the jury, courts grant motions for nonsuit only under very limited circumstances. [Citation.]’ ” (Espinosa v. Little Co. of Mary Hospital, supra, 31 Cal.App.4th at p. 1313.)

b. The law under plaintiffs’ theory of the case.

Murray moved for nonsuit of the fraud cause of action on the ground there were “[n]o representations made by Mr. Murray to either defendant [sic] and, therefore, no fraud.” Plaintiffs responded by relying on the rule that those who accept the fruits of a fraud, with knowledge of the fraud, inferentially ratify it and will be liable, even though they did not personally perpetrate the fraud. Focusing on the knowledge element, plaintiffs asserted that there was enough circumstantial evidence of Murray’s knowledge of Viguier’s and Surf Channel’s fraud that the jury could have found Murray liable, notwithstanding Murray was not the one who made the misrepresentations.

In McClung v. Watt (1922) 190 Cal. 155, our Supreme Court stated the rule plaintiffs advocate. There, the plaintiff had alleged that she conveyed property to the defendant mortgage company. Defendant Watt was the owner of a large interest of the defendant corporation. The corporation allegedly obtained the plaintiff’s deed by reason of Watt’s fraudulent acts and representations, and allegedly knew of the fraud, ratified, and approved of it. (Id. at p. 160.) The Supreme Court concluded that the complaint stated a cause of action against the corporation sufficient to deprive Watt of the right to change venue. (Id. at pp. 159, 162.)

In reaching this conclusion, McClung articulated the rule that “one who accepts the fruits of a fraud, with knowledge of the misrepresentations or concealments by which the fraud was perpetrated, thereby inferentially ratifies the fraud complained of and will be liable therefor even though he did not personally participate in the fraud, and this is so apart from any consideration of the theory of agency. [Citations.]” (McClung v. Watt, supra, 190 Cal. at p. 161, italics added; see 34 Cal.Jur.3d (2005) Fraud & Deceit, § 5, p. 315; 37 Am.Jur.2d (2001) Fraud & Deceit, § 300, pp. 314-315; cf. Central Mutual Ins. Co. v. Schmidt (1957) 152 Cal.App.2d 671, 673-674 [stating rule and noting facts did not support its application in that case].)

Murray counters by arguing that this rule is inapplicable as a matter of law. He relies on agency principles, including the Restatement Second of Agency. He asserts that ratification of Viguier’s and Attia’s fraud “could only apply to a transaction involving [plaintiffs] to which Murray could become a party as a principal by accepting acts done [by] Viguier or Attia as his putative agents.” However, McClung states its theory of liability applies “apart from any consideration of the theory of agency.” (McClung v. Watt, supra, 190 Cal. at p. 161, italics added.)

Rather than to distinguish McClung away, Murray focuses on the only case to cite the McClung rule, namely, Central Mutual Ins. Co. v. Schmidt, supra, 152 Cal.App.2d 671, at pages 673-674 (“Schmidt”). Murray cites Schmidt to extrapolate that the McClung rule is actually based on agency principles. Murray’s sleight of hand is unpersuasive.

The Schmidt court stated the McClung rule and then observed: “In the instant case there is nothing in the record to indicate that defendant in any way personally profited from the transaction.” (Schmidt, supra, 152 Cal.App.2d at p. 674.) As the facts of Schmidt rendered the McClung rule inapplicable, Schmidt came “down to this critical question: Does an agent who executes a contract of sale on behalf of his principal incur personal liability to the vendee for failure to disclose to the latter latent material facts?” (Id. at p. 675.) That question turned on a factual issue, to be tried on remand, of the extent to which the agent participated in the transaction such as would place on him the affirmative duty of making full disclosure. (Id. at p. 676.) Thus, Schmidt is not authority for the proposition Murray cites, namely, that the rule of McClung is based in agency principles. Rather than to reject the McClung rule, Schmidt cited it and then noted that it was inapplicable to its facts and then applied an alternative theory, namely, that of agency. McClung remains good law.

Finally, we are not persuaded by Murray’s argument that there was no “qualifying transaction” upon which to base plaintiffs’ fraud theory. He asserts that plaintiffs never exchanged their services for membership interests in Surf Channel in a transaction with Murray with the result there was nothing for him to ratify. He argues that “Viguier and Attia did not purport to act for Murray in procuring [plaintiffs’] services.” However, the transaction that plaintiffs allege Murray inferentially ratified by accepting the benefits was broader than the mere failure to transfer to plaintiffs their equity in Surf Channel before 1999. It included the March 1999 sale to Surf Channel Delaware that disregarded plaintiffs’ putative interests in the California company. The jury could reasonably conclude that Murray accepted benefits by receiving plaintiffs’ discounted services and realizing a profit on his investment in the sale to Zilkha that would have been smaller had plaintiffs been paid their share. Murray misses the point when he argues that Viguier and Attia did not purport to act for him. The question in McClung was whether the circumstances show that Murray inferentially ratified the fraud when he accepted the benefits.

This is the essence of plaintiffs’ theory: Viguier and Surf Channel falsely promised plaintiffs equity in Surf Channel LLC in return for services plaintiffs rendered. When Surf Channel was sold, plaintiffs were never paid for their interests in the company. Murray inferentially ratified Viguier’s and Surf Channel’s fraud even though he did not make any representations, because he knew of the fraud and accepted the benefits of it by obtaining cheap labor and realizing a profit in the sale to Surf Channel Delaware in derogation of plaintiffs’ interests. Murray’s liability holds “apart from any consideration of the theory of agency. [Citations.]” (McClung v. Watt, supra, 190 Cal. at p. 161, italics added.) Plaintiffs concede Murray made no misrepresentations. But, as noted, by realizing a profit on his investment in the sale, Murray accepted the fruits of the fraud. Hence, resolution of the nonsuit question turns on whether Murray knew that Viguier and Surf Channel had promised Howard and Ney equity in the company and then failed to recognize that interest in the sale of Surf Channel California. (Ibid.)

c. What the record shows.

Murray’s liability turns on his knowledge. Yet, neither plaintiff testified that they talked or corresponded with Murray about membership interests in a Surf Channel entity. They testified that they never claimed an interest to Murray and never received any documents from Murray showing their equity interests. Nor did Ney ever have a conversation with Murray about how he was being compensated for his editing services for Surf Channel. As for the sale to Surf Channel Delaware, Murray testified he did not read the transaction documents and did not know who was involved other than that he had sold his interests in the California company to Zilkha. The only reasonable inference to be derived from this is not only did Murray not know about equity deals Viguier and Attia made with plaintiffs, but he did not know who did or did not participate in the sale to Zilkha.

Thus, plaintiffs are left with demonstrating Murray’s knowledge of Viguier’s and Attia’s promises circumstantially. Plaintiffs posit the following evidence of Murray knowledge: (1) Murray’s responsibilities at Surf Channel were “the financial advisor, legal things . . . the accounting and all that kind of thing.” (2) Plaintiffs claim that Murray spoke to attorney Steiner about Steiner’s December 17, 1998, letter concerning his retainer agreement with Surf Channel. (3) Murray transferred Surf Channel’s files from Steiner to the company’s new attorney, Soussan. (4) Ney was told that Murray was an investor in Surf Channel and “in charge of [Surf Channel’s] finances to a certain extent . . . .” (5) Murray considered himself to be a kind of financial advisor for Surf Channel. (6) Ney testified “I believe he [Murray] was well informed, because he was in charge of finances. And he was constantly with Mr. Viguier and Mr. Attia, . . . on a daily basis[,] I’m sure for at least a couple of hours a day, if not more.” (7) Murray agreed with Viguier and Attia that he “ ‘would not be responsible for or involved in the day-to-day management of Surf Channel California . . . .’ ” (8) Murray signed most checks, and all those in excess of $2,500, and was the final decision-maker on any Surf Channel expenses over $10,000. (9) Often, Murray would ask what the check was for. (10) He also looked for investors. (11) Murray was in Surf Channel’s offices on nearly a daily basis, and spent 10 to 15 hours a week on Surf Channel business.

From this evidence, plaintiffs argue the jury could infer that because Murray was in charge of hiring lawyers and office accounting, he must have known about attorney Steiner’s and Viguier’s promises to plaintiffs and must have known of Surf Channel’s attempt to get plaintiffs to release their interests in February 1999. Plaintiffs assert that the jury could reasonably infer from Murray’s check‑writing and decisionmaking about expenditures in excess of $10,000, that he must have known that when Surf Channel offered Ney $15,000, it was to release Ney’s equity interest in Surf Channel. Finally, plaintiffs insist that the jury could infer, notwithstanding Murray’s contentions to the contrary, that he knew the details of the sale to Surf Channel Delaware and that plaintiffs had been squeezed out.

We conclude plaintiffs have not adduced sufficient evidence to send the case against Murray to the jury. Merely because he functioned as accountant and personally wrote checks (since he invested $200,000 of his money into the company) does not logically mean that Murray knew about Howard’s and Ney’s negotiations with Viguier and Attia. Stated differently, there is nothing in the evidence to show that Murray knew that the checks’ amounts were calibrated to an intricate deal for equity, or that some checks may have been written to influence Ney to release his interest in the company. The record shows that Howard and Ney were paid for their work, apart from the bounced checks at the end of 1998. Ney’s testimony that he believed Murray knew of his deal with Viguier, is nothing but guesswork on Ney’s part. To reach the conclusion plaintiffs proffer, the jury would have to speculate that Murray -- who is not a film editor or public relations man -- understood that payments for services were made at a discount and the $15,000 check was paid to force Ney to release his interests and not to replace a bounced check. The jury would have to reach this conclusion in spite of Ney’s testimony that he did not discuss his deal with Murray and Murray was not responsible for or involved in the daily management of Surf Channel. It would have to assume that because Murray made decisions about expenditures in excess of $10,000, that he was told the $15,000 check to Ney was for a purpose other than reimbursement of a bounced check for the same amount. There is simply no evidence, other than speculation, that Murray knew Ney and Howard claimed an interest in the company.

It follows then, that Murray could not know that Ney and Howard had an interest that was overlooked in the deal with Surf Channel Delaware. Murray testified he did not know about the sale of anyone else’s interests to Zilkha until two weeks after the transaction was consummated. Murray testified, at the time he sold his interest in Surf Channel California, that he was unaware of any other transaction involving the transfer of Surf Channel’s assets. He did not read the transaction documents beyond the part in which his shares were sold to Zilkha’s group.

Nor do plaintiffs make a better case by focusing on the testimony that Murray was “in charge of legal affairs.” They posit that, as one in that position, Murray must have known about Surf Channel’s attempt to get plaintiffs to release their equity interest in February 1999. However, there is no suggestion that Murray was a lawyer; the company had retained counsel. And there is no evidence about what being “in charge of legal affairs” meant, other than the fact that Murray transferred the company’s files from its first attorney to its newly retained lawyer and communicated with Steiner when the latter was terminating his services. The jury would have to surmise from the file transfer that Murray read all the documents therein, and in particular read attorney Steiner’s letter granting Howard an equity interest. As the appellate record does not contain the letters in which Surf Channel attempted to force plaintiffs to release their interests, we are unable to assess their contents and cannot guess what the jury would conclude. In any event, Howard and Ney both testified that the attempt to force them to relinquish their interests occurred between February 2 and 5, 1999, whereas Murray testified he did not know about the sale to Zilkha until after that. Even if these letters were an actual attempt to force plaintiffs to release their interests in Surf Channel, there is no evidence that Murray knew about them.

At bottom, plaintiffs insist that Murray must have known about the fraud because of his status as a member of the company who wrote checks and saw other members regularly. But the Limited Liability Company Act states: “Except as otherwise provided . . . no member of a limited liability company shall be personally liable under any judgment of a court, or in any other manner, for any debt, obligation, or liability of the limited liability company . . . solely by reason of being a member of the limited liability company.” (Corp. Code, § 17101, subd. (a), italics added.)[2] The nonsuit motion was properly granted.

II. Alter ego liability.

a. The law of alter ego liability.

The jury found Surf Channel liable for perpetrating a fraud on plaintiffs. Under the alter ego doctrine, plaintiffs sought to skirt the corporate entity and treat Surf Channel’s acts as if they were done by Murray who was actually controlling Surf Channel.

We have recently discussed the Beverly-Killea Limited Liability Company Act. In People v. Pacific Landmark (2005) 129 Cal.App.4th 1203, we explained, “ ‘ “[a] limited liability company is a hybrid business entity formed under the Corporations Code . . . [which] provides members with limited liability to the same extent enjoyed by corporate shareholders [citation] . . . .” ’ [citation] while maintaining the attributes of a partnership for federal income tax purposes. [Citation.]” (Id. at pp. 1211-1212.) The limited liability company consists of members “ ‘ “who own membership interests [citation]. The company has a legal existence separate from its members . . . but . . . the members . . . actively participate in the management and control of the company [citation]” [citation].’ [Citation.]” (Id. at p. 1212.)

“While generally members of a limited liability company are not personally liable for judgments, debts, obligations, or liabilities of the company ‘solely by reason of being a member’ (Corp. Code, § 17101, subd. (a)), they are subject to liability under the same circumstances and to the same extent as corporate shareholders under common law principles governing alter ego liability and are personally liable under the same circumstances and extent as corporate shareholders. (§ 17101, subd. (b); [citation].)” (People v. Pacific Landmark, supra, 129 Cal.App.4th at p. 1212.)

As an aside, we first address Murray’s contention that the trial court erred in ruling that alter ego liability could be imposed on him for conduct that occurred in 1998 and 1999, before the provisions of the Limited Liability Company Act came into effect allowing for application alter ego liability. (Stats. 1999, ch. 490, § 3.)[3] The parties argued extensively in the trial court about whether the Legislature intended the 1999 amendment to be retroactively applied. We conclude that the trial court did not err in declining to pierce the corporate veil, with the result we need not determine whether the amendment could be applied retroactively. Nor need we determine whether alter ego liability would have been available before 1999 in any event.

Turning to the substance of the court’s ruling, “[t]he alter ego doctrine arises when a plaintiff comes into court claiming that an opposing party is using the corporate form unjustly and in derogation of the plaintiff’s interests. [Citation.] . . . ‘As the separate personality of the corporation is a statutory privilege, it must be used for legitimate business purposes and must not be perverted. When it is abused[,] it will be disregarded and the corporation looked at as a collection or association of individuals, so that the corporation will be liable for acts of the stockholders or the stockholders liable for [the] acts done in the name of the corporation.’ [Citation.]” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 300.)

The conditions under which the corporate entity will be disregarded vary according to the circumstances of each case and the analysis is very fact specific. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1285, fn. 13.) Two general requirements must be met before the corporate veil will be pierced: “ ‘(1) [T]hat there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow.’ [Citation.]” (Mesler v. Bragg Management Co., supra, 39 Cal.3d at p. 300.) We review the trial court’s ruling under the substantial evidence test. (See Wollerscheim v. Church of Scientology (1999) 69 Cal.App.4th 1012, 1014.)

In determining whether there was a unity of interest between the individual and the corporation, courts consider myriad factors (Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, 838), several of which must be present for the corporate entity to be disregarded. (Id. at p. 840.) Distilled from the cases, the following are among the factors considered: (1) financial issues, such as the failure to adequately capitalize a corporation or the total absence of corporate assets (id. at p. 839); (2) corporate formality questions -- such as whether the corporation was properly and legally formed; whether legal formalities were respected (id. at pp. 838-840); (3) ownership issues -- such as who makes up the membership and whether assets have been diverted from the company by or to a stockholder, to the detriment of creditors (id. at p. 840); and finally, (4) commingling questions -- such as whether corporate assets have been diverted to other than company uses (ibid.); whether a member treats the company assets as his or her own (id. at p. 839); whether the corporation is used as a shell, instrumentality, or conduit for the single venture or business of an individual (ibid.); whether the identity of the responsible ownership, management, and financial interests has been concealed and misrepresented (id. at pp. 839-840); has the corporate entity been used to procure labor, services or merchandise for another person or entity (id. at p. 840); or contracted with another with intent to avoid performance by use of a corporate entity as a shield against personal liability. (Ibid.; Tomaselli v. Transamerica Co. supra, 25 Cal.App.4th at p. 1285, fn. 13.) “If these factors show a unity of interest, and it is also shown that honoring the corporate shell would promote a fraud or injustice, the third party may be permitted to ‘pierce the corporate veil’ and hold the parent entity liable for the corporate activities. [Citation.]” (Tomaselli, supra.)

Rather than to repeat the evidence in detail, we delineate the following facts that support the sufficiency of the trial court’s findings: With respect to financial issues, Murray risked $200,000 to start Surf Channel, with no guarantee of a return. The $200,000 was considered adequate capitalization in 1998, given Surf Channel’s budget and plans. The amount was considered sufficient for a start‑up company, based on Attia’s and Viguier’s experiences in programming, production, and editing film, and given there would be no budget for salaries. Murray did not take a salary. While plaintiffs cite numerous facts showing the poverty of Surf Channel as evidence of the company’s inadequate capitalization, the founders of Surf Channel believed his investment to be sufficient and indeed only ran into financial trouble in the end of 1998, when checks bounced. Thereafter, Surf Channel was sold.

In any event, Murray maintained detailed records of company financial transactions based on a computer program. Murray authorized and signed checks for the company. Viguier and Attia could sign checks under $2,500, without Murray’s approval. Plaintiffs argue that the numerous checks written to cash are evidence that Viguier and Attia “were using the LLC as their own personal ATM.” However, Murray explained that frequently Surf Channel needed cash, for example when they were filming on location abroad and needed cash for small items such as food, lodging, and camera equipment. The court found this explanation to be plausible. In any event, Murray obtained back-up documentation when Viguier, Attia, and Howard asked to be reimbursed for money they spent on Surf Channel expenditures. Otherwise, Murray kept detailed receipts and credit card slips documenting all items he paid on behalf of the company.

The company was properly formed, plaintiffs’ assertions to the contrary notwithstanding.[4] Surf Channel consulted a lawyer, Steiner, who formed the entity and drafted an operating agreement. Certificates of membership interest were issued at a meeting of the members. Surf Channel’s tax returns were prepared by the company’s outside certified public accountant who examined the company’s records, including bank account records. Three other entities, Surf Channel Marketing, LLC, and Surf Channel Productions, LLC, and Surf Channel Interactive, were formed at the same time as Surf Channel, but were never active and had no assets. Plaintiffs have provided no evidence that records of these separate entities were not segregated, or that Surf Channel’s funds had been diverted to these companies to the detriment of plaintiffs. Or that they were in any manner used as shells for Surf Channel’s purposes. (Associated Vendors, Inc. v. Oakland Meat Co., supra, 210 Cal.App.2d at pp. 838-840.)

Finally, turning to the commingling-related factors, the trial court specifically stated that it believed Murray’s explanation for the manner in which Surf Channel’s funds were handled. The record shows that Viguier, Attia, and Murray agreed that the latter would not be responsible for the day-to-day operation of Surf Channel. Murray explained that he did not have experience in the creative side of the company. His role involved oversight of the company’s expenditures, including signing checks, and giving advice. Otherwise, Murray acted as an investor and restricted his involvement to that. Plaintiffs make much of Murray’s claim that he held an ownership interest in Surf Channel although Carillo Investments, an entity in which he held an interest, was really the entity that contributed the seed money to Surf Channel. Plaintiffs cite this as evidence that Murray has misrepresented the identity of the ownership interest in the company. Apart from the fact that Murray never hid the name of the investor, we do not see how the source of Murray’s investment is relevant to plaintiffs’ injuries. That is, nothing about Carillo Investments’ membership interest in Surf Channel related to the alleged fraud in this case or prevented plaintiffs from realizing their equity interest. There is no evidence that any money was surreptitiously transferred to Carillo Investments to plaintiffs’ detriment.

Plaintiffs cite a letter written by Steiner to Murray in August 1998, referring to Murray’s removal of $23,000 to $28,000 in Surf Channel funds to repay himself some loans Murray had made to Surf Channel, and Murray’s use of one of his company’s credit cards to pay for certain Surf Channel’s expenses. Plaintiffs assert that this is evidence of a commingling of and unauthorized diversion of funds. However, plaintiffs failed to explain the meaning or relevance of Steiner’s letter while Murray explicated his credit card use in a manner that the trial court believed. We will not reassess that evaluation. In sum, the factors discussed do not show a unity of interest such as would satisfy the first requirement under the alter ego doctrine. (Tomaselli v. Transamerica Ins. Co., supra, 25 Cal.App.4th at p. 1285, fn. 13.)

Turning to the other requirement, the evidence supports the court’s conclusion that honoring the corporate shell would not promote a fraud or injustice. (Tomaselli v. Transamerica Ins. Co., supra, 25 Cal.App.4th at p. 1285.) We have already demonstrated that while Murray risked a large amount of money, he took no salary in return. Murray should not be held responsible simply because he was an investor and therefore a deep pocket. “ ‘Mere ownership of all the stock and control and management of a corporation by one or two individuals is not of itself sufficient to cause the courts to disregard the corporate entity. [Citations.]’ ” (Meadows v. Emett & Chandler (1950) 99 Cal.App.2d 496, 499.) More important, Murray did not participate in and did not know of the fraud Viguier perpetrated on plaintiffs. Because there was no basis for liability against Murray personally, we agree with the trial court that no injustice would be promoted in declining to hold him responsible for the fraud that Viguier committed against plaintiffs.

“Alter ego is an extreme remedy, sparingly used. [Citation.]” (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 539.) It is a “limited doctrine, invoked only where recognition of the corporate form would work an injustice to a third person.” (Tomaselli v. Transamerica Ins. Co., supra, 25 Cal.App.4th at p. 1285.) “The essence of the alter ego doctrine is that justice be done. . . . [T]he corporate form will be disregarded only in narrowly defined circumstances and only when the ends of justice so require.” (Mesler v. Bragg Management Co., supra, 39 Cal.3d at p. 301.) Plaintiffs have not demonstrated how justice requires the setting aside of the Surf Channel entity vis-à-vis Murray.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

CROSKEY, Acting P.J.

KITCHING, J.

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[1] In their reply brief, plaintiffs intimate that they settled their claims with Viguier and Surf Channel.

[2] Plaintiffs also contend that the trial court erred in declining to instruct the jury from McClung. However, as plaintiffs presented their case, the McClung rule applied only to Murray. Given our conclusion that the court properly granted Murray’s nonsuit motion, we need not reach the question of whether the jury should have been allowed to hear the instruction. As Murray notes, the trial court cannot have erred with respect to an instruction on which it had no occasion to rule.

[3] Murray also raises a wholly new argument on appeal, namely, that plaintiffs’ dismissal of all their claims against Surf Channel with prejudice after the jury verdict was rendered but before the judgment was entered, obliterated the debt Surf Channel owed as the result of the jury verdict. They argue that without a debt owed, there is nothing to pierce the corporate veil for. We need not reach this issue either because we conclude the trial court properly ruled that there was no basis for alter ego liability.

[4] Plaintiffs quote from Steiner that “things were done pretty informally,” and “this wasn’t the most formal of LLC’s.” However, plaintiffs have not demonstrated that the company was not properly formed or that the legal formalities were not respected. To the contrary, Steiner testified that despite the relaxed atmosphere, the formalities were respected, and Murray, Viguier and Attia received corporate documents.

P. v. Gentry

2005-12-02T13:42:00.000-08:00

Filed 12/1/05 P. v. Gentry 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,

JASON DARNELL GENTRY, et al.,

Defendants and Appellants.

H026381

(Santa Clara County

Super. Ct. No. CC258951)

Defendants Jason Darnell Gentry and James Elija Johnson were both convicted after jury trial of one count of first degree burglary (Pen Code, §§ 459, 460, subd. (a)),^{^[1]} and three counts each of robbery within an inhabited dwelling while acting in concert

(§ 213, subd. (a)(1)(A)), and false imprisonment (§§ 236, 237). In addition, the jury found true allegations that Johnson personally used a deadly and dangerous weapon, a BB gun (§ 12022, subd. (b)(1)), during the commission of the above offenses, and Johnson was convicted of assault with a deadly weapon (§ 245, subd. (a)). The trial court found that Johnson had a prior robbery conviction that qualified as a strike. (§ 1170.12.) The court sentenced Johnson to prison for 21 years, and granted Gentry probation with various terms and conditions.

On appeal, Gentry argues that the probation condition forbidding him from going to places where illegal drugs are used or sold or where alcohol is the chief item of sale must be modified to include a knowledge requirement. We agree, and will order the probation condition modified and affirm the judgment as to Gentry as so modified.

Johnson argues: (1) the admission of hearsay evidence regarding his prior robbery conviction violated his right to confrontation; (2) his oral and written statements to police should not have been admitted into evidence as they were involuntary; (3) the admission of evidence of a codefendant’s guilty plea and the prosecutor’s argument that the evidence could be considered as proof of the existence of an uncharged conspiracy violated his right to confrontation; (4) the court erred in failing to instruct the jury on the uncharged conspiracy; (5) the admission of evidence of his poverty to prove motive was prejudicial error; and (6) the cumulative effect of these errors denied him a fair trial. We disagree with all these contentions, and will affirm the judgment as to Johnson.

BACKGROUND

Defendants were charged, together with Michael Deon Joiner and Jaitmari Khari Davis, by first amended consolidated information with three counts of robbery within an inhabited dwelling while acting in concert (§ 213, subd. (a)(1)(A); counts 1 – 3), first degree burglary (§§ 459, 460, subd. (a); count 4), three counts of false imprisonment

(§ 236, 237; counts 5 – 7), and assault with a deadly weapon (§ 245, subd. (a)(1); count 8). The information further alleged that during the commission of counts 1 through 7 each defendant was armed with a handgun (§ 12022, subd. (a)(1)), and Johnson personally used a deadly and dangerous weapon, a BB gun (§ 12022, subd. (b)(1)). The information also alleged that Johnson had a prior felony conviction that qualified as a strike. (§ 1170.12.)

The prosecution’s case

In August 2002, Jesus Aviles[2] lived on Felix Way in San Jose with Sofia Chicas and her boyfriend Jason Monroe. Chicas and Monroe sold marijuana to friends out of their bedroom. However, they had never sold marijuana to an African-American.[3]

On the afternoon and evening of Thursday, August 8, 2002, Chicas and Monroe had a small get-together at their home, and people were drinking and smoking marijuana there. Later that night Joe Curiel came to the home. Curiel had a drink with Chicas and Monroe and bought some marijuana. While Curiel was there, Chris Henderson,[4] an African-American, came to the house asking for Curiel. Neither Monroe nor Chicas knew Henderson, and Curiel seemed surprised to see him. Henderson was obnoxious, and he and Curiel soon left. Chicas and Monroe went to bed around midnight.

Aviles arrived home around 2:30 a.m. on Friday, August 9, 2002, with his friends Shawn, Sarah, and Jamie, and parked down the street. As the four of them were walking toward Aviles’ home, an African-American man wearing a stocking cap and a black sweatshirt came out from the bushes. The man screamed something and ran past them. Aviles and his friends continued on to his house and entered the backyard through a gate. The door to Aviles’ room was open. When they looked into Aviles’ room, Aviles and Shawn could see people inside. Aviles told his friends to run. Shawn and Sarah heard a noise like a gun shot coming from inside Aviles’ room, and ran from the place with Jamie. The three of them hid behind a car in the driveway next door, and called for help. After they had been there for about 10 or 15 minutes, they saw three men run away. They then went back to Aviles’ house, found Aviles, and waited for the police to arrive.

Aviles was standing outside the entrance to his room when an African-American man grabbed him and shot him on the left side of his head with a BB gun. The shot ruptured a vein causing Aviles to bleed profusely. The man then asked Aviles where “the dope” and money was, and pushed Aviles inside. Two other African-American men were inside, one with a crowbar, and all three of the intruders had their faces covered. The man who shot Aviles took him down the hall and told him to open the door to Chicas’s room. Aviles yelled for Chicas to open her door, saying that a man had a gun to his head. Chicas opened the door, and the intruders ran into the room. Monroe was asleep on the bed, and one of the men pistol-whipped Monroe to wake him up.

While holding Aviles, Chicas, and Monroe at gunpoint, the three intruders asked where the money, marijuana, and the safe were. Chicas pulled a safe out from under the bed. The intruders also found a large vodka bottle containing about $2,000 to $3,000 in bills in the room. One of the intruders took Chicas out of the room to get the keys to the safe. Monroe took another intruder to the backyard where there was a broken safe. When Monroe was unable to open that safe, the intruder took Monroe back to his room. The intruders took the safe from the room, the keys Chicas gave them, the bottle of money, and a PlayStation from Aviles’ room, and left.

Chicas saw the men run down Felix Way and turn right on Clara Felice. She followed them, and when she saw them start to jump a wall she returned home. On the other side of that wall is the Almaden Terrace Apartments.

Monroe and Chicas suspected that Henderson was involved in the incident. Chicas knew that Curiel was aware of the safe in her bedroom. After checking on Aviles, Chicas drove to Curiel’s nearby home. She demanded that Curiel take her to Henderson’s home. Curiel directed Chicas to the Almaden Terrace Apartments, and pointed to the stairs of one building that led to two apartments. Monroe waited for the police to arrive. When they did, Chicas directed the officers to the two apartments and went home. She later learned that one of the apartments was empty.

Henderson is Johnson’s cousin, and Gentry, Davis and Joiner are his friends. Henderson visited Johnson and his friends in the summer of 2002 at an apartment in the Almaden Terrace Apartments, where he once saw a BB gun. Henderson also knows Curiel. On August 8, 2002, Henderson went with Curiel to his friend’s house in order to buy some marijuana. Henderson stayed in the car when Curiel went inside. After waiting about 30 minutes, Henderson went to the house and was let inside. He and Curiel left after a few minutes and smoked the marijuana in Curiel’s car. Curiel then dropped him off at the apartments, and he went inside and fell asleep. He woke up and left the next morning. Although he told Detective John Mitchell on August 22, 2002, that he woke up during the night and saw Gentry, Davis, Johnson, and Joiner in the room counting money, and with marijuana and a black box, Johnson testified at trial that he made up the story because he was afraid that he was being identified as one of the participants in the robbery.[5]

Detective Mitchell interviewed Gentry on August 16, 2002. After waiving his Miranda rights,[6] Gentry said that he had been in the car with Henderson and Curiel when they went to the Felix Way home on August 8, 2002, to buy marijuana. He waited in the car with Henderson when Curiel went inside. At some point, Henderson also went inside the home, and came back with Curiel and marijuana. A plan was entered into at Gentry’s apartment to rob the Felix Way home. Gentry said that a BB gun and a crowbar were used in the robbery. Henderson was not involved in the robbery. Gentry acted as the lookout and did not go inside the home. When some people came home during the robbery, Gentry called out a warning and ran back to his apartment. Gentry said that his cut from the robbery was $250. Mitchell found a crowbar in Gentry’s Almaden Terrace apartment under his bed, where Gentry told him it would be. Mitchell also found a box of BBs in the apartment.

Detective Mitchell interviewed Davis on October 9, 2002. After waiving his Miranda rights, Davis admitted being involved in the robbery but said that Henderson was not involved in the robbery.

Detective Mitchell and Officer Jeffrey Enslen interviewed Johnson at the police station for four hours on August 20, 2002. The interview was tape recorded, and the tapes were played for the jury. During the interview, Mitchell did not make any threats or promises that caused Johnson to admit anything. Johnson was arrested and the officers then took him to his car. Mitchell searched the car and found a doorknob inside a bag and a head cover that could also be used as a mask. Mitchell had earlier seen the doorknob in Gentry’s apartment. Johnson was taken to jail and booked. Johnson then said that he wanted to talk some more about the case. He wrote out a statement, which was admitted into evidence as People’s Exhibit 26. In the statement Johnson admitted being at a house early one Friday morning when some of the people he was with went inside. He stayed outside and ended up hitting a man with a BB gun during a scuffle, but he did not rob anybody or take any marijuana.

San Jose Police Officer Patrick Boyd interviewed Johnson in April 2000. At the time, Johnson was a suspect in a robbery that had occurred the previous month. Boyd informed defendant of his Miranda rights and Johnson acknowledged understanding his rights. Johnson said that he drove with two other individuals to a bank at Valley Fair and parked a little distance away. He and one of the other individuals went up to a man at the ATM who was carrying a deposit bag. The individual with Johnson threatened the man, demanded the bag, and got into a scuffle with the man, who was knocked to the ground. Johnson said that he did not actually participate in the assault. When Boyd told Johnson that this was contrary to what the victim indicated, Johnson continued to deny any physical involvement, but acknowledged that he was there and that he knew that the robbery was going to occur. He also said that the money in the deposit bag was divided amongst the three of them in the car. A certified copy of defendant’s conviction for robbery as a result of this incident was admitted into evidence as People’s Exhibit 8.

The defense case

Gentry testified that on the evening of August 8, 2002, he went with Curiel and Henderson to the Felix Way house to buy some marijuana. Curiel went inside and Gentry and Henderson waited in the car. Some time later, Henderson went inside and came back with Curiel. They all went and smoked some marijuana in the car. Curiel left and Gentry and Henderson then smoked some more marijuana at Gentry’s Almaden Terrace apartment with Davis. Later that night, while Henderson was sleeping on the couch, Johnson and Joiner came to the apartment. Gentry went with Davis, Johnson, and Joiner when they walked over to the Felix Way residence. There, Davis said that they were going to rob it. He told Gentry to stay outside as a lookout, and the others went inside. Davis had a crowbar and Johnson had a BB gun. When Gentry heard some people coming, he shouted a warning and ran home. The others came back to the apartment with a black box, a bottle full of money, and a PlayStation. They broke the bottle, counted the money, and gave him about $100. He did not take more because he did not want to be involved. While they were still counting the money, Gentry heard Curiel’s and Chicas’s voices coming from outside near Johnson’s former apartment. Then he saw the police arrive. Davis, Johnson and Joiner turned off the lights in the apartment. Henderson woke up while Davis, Johnson and Joiner ran around and hid the things that had been taken in the robbery.

Gentry further testified that Johnson, Davis and Joiner had been planning the robbery for a week or two. Curiel had told them that his “weed hookup” had “all this weed and all this stuff,” including a lot of money. Gentry also heard Johnson, Davis and Joiner later talk about finding a pistol and a pound of marijuana in the black box. Detective Mitchell did not believe Gentry when he said during his August 16, 2002 interview that he never went inside the house and that Joiner was the third person involved in the robbery who did go inside.

Verdicts, findings on prior allegation, and sentencing

In the middle of trial, Davis entered into a negotiated plea agreement, a condition of which was a three-year prison sentence. Outside the presence of the jury, Johnson waived jury trial on the prior allegation. The jury found Johnson guilty of all charges, counts 1 through 8, and found true allegations that he personally used a deadly and dangerous weapon during the commission of counts 1 through 7. The jury found Gentry guilty of counts 1 through 7, but found him not guilty of count 8 and found all arming allegations as to him not true. The jury was unable to reach a verdict on any counts as to Joiner, and the court declared a mistrial as to him. The court found true the allegation that Johnson had a prior robbery conviction that qualified as a strike. The court sentenced Johnson to 21 years in state prison. The court suspended imposition of sentence as to Gentry and placed him on three years probation with various terms and conditions, one of which was that he not “go to places where illegal drugs are used or sold or alcohol is the chief item of sale.”[7]

DISCUSSION

Johnson’s prior conviction

Johnson moved in limine to exclude under Evidence Code section 352 evidence of his prior robbery conviction. The prosecutor sought to use the conviction for impeachment and to show intent under Evidence Code section 1101, subdivision (b). The court found that the offense was a crime of moral turpitude, and that the evidence was more probative than prejudicial, and ruled that the evidence was admissible for impeachment. The court also found the conviction admissible to show intent. The court subsequently instructed the jury that it could consider defendant’s prior robbery conviction only on the issue of the existence of the necessary intent.

Johnson argues that the admission of evidence of his prior robbery conviction was prejudicial error. He contends that the prior robbery was not sufficiently similar to the charged offense to be admissible on the issue of intent. He contends that Officer Boyd’s testimony regarding the facts of the prior, and of having confronted Johnson with what the victim said about it, was inadmissible hearsay and thus violated his right to confrontation as stated in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).[8] He also contends that defense counsel’s failure to object to Officer Boyd’s testimony constituted ineffective assistance.

“Evidence that a defendant has committed crimes other than those currently charged is not admissible to prove that the defendant is a person of bad character or has a criminal disposition; but evidence of uncharged crimes is admissible to prove, among other things, . . . the intent with which the perpetrator acted in the commission of the charged crimes. (Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove . . . intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of . . . intent. [Citation.] On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. [Citations.]” (People v. Kipp (1998) 18 Cal.4th 349, 369.)

“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) “In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘ “probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ibid.)

In the instant case, whether Johnson harbored the requisite intent to rob the occupants of the Felix Way house was a disputed material issue. Johnson admitted being near a house early one Friday morning with a BB gun when others he was with went inside the house, but he denied taking part in a robbery there. In the prior robbery, Johnson admitted going to a bank with two other people with the intent to rob somebody, but denied taking part in the actual robbery. Johnson’s prior robbery conviction had a strong tendency to prove that Johnson had the intent to rob somebody when he went with others to that house that early Friday morning. “ ‘ “If a person acts similarly in similar situations, he probably harbors the same intent in each instance” [citations], and . . . such prior conduct may be relevant circumstantial evidence of the actor’s most recent intent. The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him by the prosecution.

[Citations.]’ ” (People v. Miller (2000) 81 Cal.App.4th 1427, 1448, quoting People v. Robbins (1988) 45 Cal.3d 867, 879.) The evidence of Johnson’s prior robbery was sufficiently similar to his statements regarding the charged offense to support the inference that he probably harbored the intent to rob in both incidents. The court did not abuse its discretion in admitting evidence of Johnson’s prior robbery conviction.

Johnson contends that it was prejudicial error to allow Officer Boyd to testify that Johnson’s version of what happened during the prior robbery was inconsistent with the victim’s description of the event. He argues that Boyd’s reference to the victim’s statement about the event was inadmissible hearsay, and that admission of the testimony denied him his right to confront the witnesses against him. (Crawford, supra, 541 U.S. 36.) We disagree, as the testimony at issue was not hearsay; Boyd’s testimony was not “evidence of a statement that was made other than by a witness while testifying at the hearing . . . that is offered to prove the truth of the matter stated.” (Evid. Code, § 1200, subd. (a).)

Defendant acknowledges that his statements to Boyd about the prior robbery were admissible as an admission by a party. (Evid. Code, § 1220.) Boyd testified that he confronted Johnson with the fact that Johnson’s statements to him were “contrary to what was indicated in the victim’s statement,” and that Johnson continued to deny participating in the actual assault and robbery of the victim. The prosecutor then asked Boyd: “Even though the victim’s statement indicated two of them attacked him, Mr. Johnson said that he was not a part of the attack.” Boyd responded: “Correct.” This portion of Boyd’s testimony was not hearsay as it was not offered to prove that Johnson was indeed part of the actual assault on the victim, but was offered to prove that Johnson denied being part of the actual assault even when confronted with a contrary claim by the victim. As Boyd’s testimony regarding the content of the victim’s statements was not offered to prove the truth of the matter stated, no Crawford error is shown, and counsel cannot be faulted for failing to object to the testimony.

Johnson’s statements to police

Johnson moved in limine to exclude his oral and written statements to police regarding these offenses. At the Evidence Code section 402

hearing on the motion, Detective Mitchell testified that on August 20, 2002, at about 7:30 p.m., he and Detective Enslen contacted Johnson at work and requested that Johnson accompany them to the police station. Johnson agreed to do so and Mitchell told Johnson that he was free to leave at any time. Neither Mitchell nor Enslen displayed any weapons during the subsequent interview, which lasted about four hours and was tape recorded. Mitchell informed Johnson of his Miranda rights at the beginning of the interview and asked Johnson if he understood each of these rights. Johnson responded that he did. Mitchell then interviewed Johnson without asking for an express waiver of these rights. At no time during the interview did Johnson express a desire to exercise his rights and to stop the interview.

Mitchell told Johnson that he was identified as a suspect in a robbery, and told him that there was evidence that he was involved. Throughout the entire interview, Johnson denied being present at the time of the robbery. Mitchell repeatedly called him a liar, and yelled at him, but Johnson did not give out any information. Mitchell placed Johnson under arrest about an hour before the interview ended. After the interview ended, Mitchell began the pre-booking process with Johnson. During the process, Johnson asked to have his car keys released. Mitchell indicated that he would not need the car keys once he completed a search of Johnson’s car.[9] Johnson then agreed to take Mitchell to his car so that Mitchell could do the search and he could have the keys released.

Mitchell and Enslen drove Johnson to his car and Mitchell searched the car while Johnson watched from the patrol car. Mitchell found a black head covering with tie straps and a bag containing a door knob. Mitchell recognized the door knob as one he had seen in a bedroom at Gentry’s apartment. Mitchell seized the head covering to be booked into evidence. He then took Johnson to jail. There, Johnson told Mitchell that he wanted to talk to him some more about the situation. Johnson asked how the presence of a real gun would affect the charges against him. Mitchell said that a real gun carries a significant enhancement in robbery cases. When Johnson said again that he wanted to talk, Mitchell told Johnson that he wanted Johnson to tell the truth.

After being processed, Johnson indicated that he still wanted to talk to Mitchell. Mitchell gave Johnson some paper and a pen, and told Johnson that he could write down any statement that he wished to make. Johnson then wrote out a statement and signed and dated it. Johnson wrote that he was present at, but did not participate in, the robbery. He also wrote that he struck one of the victims with a BB gun in self-defense during a scuffle outside the home. This was a possible scenario Mitchell had presented Johnson during the earlier interview.

Johnson testified that when Detective Mitchell told him that Mitchell wanted him to go to Mitchell’s office to talk, he did not feel that he could tell Mitchell no. He did not have any idea why Mitchell wanted to talk to him, and neither detective told him that he was free to leave. Mitchell read him his rights but he did not understand that he had the right to have an attorney present during the questioning. Mitchell did not begin to question him about the robbery until about an hour into the interview, and he did not remember his rights at that time because he felt pressured. He continued to talk to Mitchell even after he was arrested. When Mitchell began yelling at him towards the end of the interview he felt threatened. However, at no time during the entire interview did Mitchell say or do anything that caused him to change his answers or to admit anything, and he never told Mitchell that he did not want to continue to talk to him.

Johnson told Mitchell during the ride over to the car search and again during the booking process that he wanted a lawyer but he did not tell Mitchell that he did not want to talk to him anymore. He wrote out a statement because Mitchell told him that if he did, everything would be all right and he would not have to do 10 to 50 years. The scenario in the statement was one suggested by Mitchell; he wrote down what Mitchell told him to write.

Johnson admitted that he has a prior conviction for robbery. In that case he was arrested by Officer Boyd and questioned after being informed of and acknowledging that he understood his rights. He confessed to the robbery and pleaded guilty because he was guilty. However, prior to sentencing he told the probation officer that his co-defendant actually did the robbery and he just watched.

In denying Johnson’s motion to suppress his oral and written statements the trial court stated: “Detective John Mitchell is an aggressive investigating officer. The evidence before me so indicates[. He] has a distinctive style, and it runs throughout the tapes of his interviews, and I listened to all of them. He is scrupulous in making sure he reads the Miranda rights early on in all the interviews. . . . [¶] . . . Moreover, he makes sure that the person he is interviewing answers audibly to questions, and, thus, I think goes to a good understanding of the rights. [¶] All the evidence supports this. The validity of Miranda waivers are viewed in the light of totality of circumstances. There’s well-settled case law that investigating officers have wide berth in techniques and questions that can be used to elicit information. [¶] . . . Mr. Johnson’s motion this Court finds the defendant freely, voluntarily, and knowingly waived his Miranda rights, and that’s beyond a reasonable doubt, I believe, Detective Mitchell. [¶] Defendant Johnson has a prior felony conviction. In that conviction he went through, he said himself on the stand, that he went through the Miranda rights, and he understood them. On the stand he, although he said that he plead[ed] guilty because he was guilty; however, he denied this to his probation officer in the probation report that was submitted to me. At least his credibility is suspect to put it in a charitable light. I do believe Detective Mitchell, and so I find that his Miranda rights were not violated, and I find that beyond a reasonable doubt in regard to Johnson. [¶] Also I find there was no coercion, and I think the tapes speak for themselves, and, as I indicated, I feel that Mr. Johnson’s credibility is suspect.”

Defendant contends that the trial court prejudicially erred in denying his motion to exclude his oral and written statements to Detective Mitchell. He argues that his statements were involuntary and were obtained in violation of Miranda.

“It has long been held that the due process clause of the Fourteenth Amendment to the United States Constitution makes inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion. [Citations.] A statement is involuntary [citation] when, among other circumstances, it ‘was “ ‘extracted by any sort of threats . . . , [or] obtained by any direct or indirect promises, however

slight . . . .’ ” ’ [Citations.] Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the ‘totality of [the] circumstances.’ [Citations.]” (People v. Neal (2003) 31 Cal.4th 63, 79 (Neal).) “ ‘Among the factors to be considered are “ ‘the crucial element of police coercion [citation]; the length of the interrogation [citation]; its location [citation]; its continuity’ as well as ‘the defendant’s maturity [citation]; education [citation]; physical condition [citation]; and mental health.’ ” [Citation.] On appeal, the trial court’s findings as to the circumstances surrounding the confession are upheld if supported by substantial evidence, but the trial court’s finding as to the voluntariness of the confession in subject to independent review. [Citations.] In determining whether a confession was voluntary, “[t]he question is whether defendant’s choice to confess was not ‘essentially free’ because his will was overborne.” [Citation.]’ [Citation.]” (People v. Boyette (2002) 29 Cal.4th 381, 411.)

“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. . . . Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. . . . The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.” (Miranda, supra, 384 U.S. at pp. 444-445.)

“ ‘[A]n accused, . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him’ [citations] and indeed not until counsel is actually present [citation], ‘unless the accused himself initiates further communication, exchanges, or conversations with the police’ [citations].” (Neal, supra, 31 Cal.4th at p. 80.)

Johnson testified that he has a prior robbery conviction, and that he confessed to that robbery after being informed of and acknowledging his understanding of his Miranda rights. He testified that he pleaded guilty to the robbery because he was guilty, but he later denied his involvement. He further testified that when he was interrogated by Detective Mitchell after being informed of his Miranda rights, he did not understand that he could have an attorney present during questioning. The trial court found Johnson’s credibility “suspect,” and the record supports that finding.

Mitchell’s interview of Johnson took place at the police station, lasted four hours, and was taped. The trial court listened to the tapes of the interview and found that Mitchell was “an aggressive investigating officer,” and the record supports that finding. Mitchell repeatedly called Johnson a liar and yelled at him during the interview. However, Johnson admitted that at no time during the entire interview did Mitchell say or do anything that caused him to change his answers or to admit to anything. Johnson also admitted that he never told Mitchell that he did not want to continue to talk to him.

Johnson testified that both during the ride to the car search and during the booking process, he told Mitchell that he wanted an attorney. However, Mitchell had already concluded his interview of Johnson when these statements were made, and Johnson did not claim that he informed Johnson that he wanted to consult an attorney before speaking or have an attorney present during any subsequent interview. Johnson’s request for an attorney appeared to be simply a request for appointment of counsel at the government’s expense to represent him on the charges he had been arrested for. Even if we were to find that Johnson’s request for an attorney was a request to have an attorney present before speaking, the record shows that Johnson himself initiated the further communication with Mitchell that resulted in his written statement. Applying the independent standard of review to this record, we conclude that Johnson’s oral statements to Detective Mitchell during the interview as well as his written statement were voluntary and were not obtained in violation of Miranda. Accordingly, the statements were properly admitted.

The guilty plea entered by Davis

Prior to trial, the prosecutor offered the four defendants a “packaged deal” plea agreement. Under the agreement Johnson would receive a sentence of 11 years and the other three defendants would receive sentences of three years. When Johnson rejected the agreement, the prosecutor withdrew it. In the middle of trial, however, Davis entered into a negotiated plea agreement that included a three-year prison sentence. At the parties’ request, the court immediately informed the jury of the plea: “[T]he attorneys have asked me to tell you that defendant Davis has pled guilty. Okay.”

Johnson now argues that evidence that Davis pleaded guilty was erroneously admitted. We agree that, had Johnson objected to admission of evidence of Davis’s guilty plea, admission of the evidence would have been error. (People v. Cummings (1993) 4 Cal.4th 1233, 1321-1322.) However, having consented to the admission of the evidence at trial, Johnson may not object to it on appeal. (People v. Torres (1962) 201 Cal.App.2d 290, 295 (Torres).)

Johnson argues that counsel’s failure to object to admission of the evidence constituted ineffective assistance. Johnson “has the burden of proving ineffective assistance of counsel. [Citation.] To prevail on a claim of ineffective assistance of counsel, a defendant ‘ “must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice.” ’ [Citation.] A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel’s decisionmaking must be evaluated in the context of the available facts. [Citation.] To the extent that the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citation.] Moreover, prejudice must be affirmatively proved; the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 389.)

The record discloses that after Davis entered his change of plea, the court offered to tell the jury that there was one fewer defendant than before, but that they were not to consider it for any purpose. Counsel for Joiner and counsel for Gentry indicated that they wanted to be able to argue that Davis was one of the robbers, so the prosecutor suggested that the court tell the jury that Davis’s case had settled. Johnson’s counsel then stated: “Why don’t we say he’s pled guilty and we won’t have to tell them what happened or anything else.” All parties told the court that this was fine with them. There is no question that counsel may agree, for tactical purposes, to the introduction of evidence to which he or she might have objected and which might otherwise be inadmissible. (Torres, supra, 201 Cal.App.2d at p. 295.) We cannot say, based on the record before us, that counsel’s agreement to the introduction of evidence of Davis’s guilty plea was not a reasonable tactical decision. The fact that the prosecutor later referred to Davis’s guilty plea when arguing that there was an uncharged conspiracy did not make counsel’s decision unreasonable. Johnson has not carried his burden of proving ineffective assistance of counsel.

Instructions on conspiracy

During closing argument, the prosecutor argued that both Gentry and Henderson told police that the robbery had been planned for some time. The prosecutor also argued that Davis’s plea proved an uncharged conspiracy existed: “[H]e pled guilty. He admitted the robberies in this case. And his guilty plea comes into evidence as a declaration against interest, his interest, because even though we don’t have it charged, but we have here a conspiracy of all of these individuals to commit these robberies. So his guilty plea comes in as a declaration against interest, proving the conspiracy – helping to prove the conspiracy that all these individuals were working together to do these robberies and these thefts.” No party requested that the court give conspiracy instructions.

Johnson contends that the court had a sua sponte duty to give CALJIC Nos. 6.10.5[10] [conspiracy and overt act—defined—not pleaded as a crime charged], 6.22[11] [conspiracy—case must be considered as to each defendant], and 17.00[12] [several defendants—verdict as to some and disagreement as to others]. The Attorney General concedes that the court should have given CALJIC Nos. 6.10.5 and 17.00 due to the prosecutor’s argument, but argues that there was no need to give CALJIC No. 6.22. We agree with the Attorney General. (See e.g., People v. Earnest (1975) 53 Cal.App.3d 734, 744-745 (Earnest) [failure to define conspiracy sua sponte was error]; People v. Mask (1986) 188 Cal.App.3d 450, 456-457 (Mask) [failure to give CALJIC No. 17.00 is error when more than one defendant is prosecuted in an action]; see also Use Note to CALJIC No. 6.22 (Jan. 2005 ed.) [this instruction is to be given and not CALJIC No. 17.00 when conspiracy is charged].)

The failure to give CALJIC Nos. 6.10.5 and 17.00 sua sponte, although error, may nevertheless be harmless. (See e.g., Earnest, supra, 53 Cal.App.3d at p. 745; Mask, supra, 188 Cal.App.3d at p. 457.) In this case, the evidence overwhelmingly showed a conspiracy to rob the occupants of the Felix Way house. The evidence showed that three men entered the Felix Way house early one Friday morning, with one carrying a BB gun and another a crowbar, while leaving a fourth man outside as a lookout. The men then robbed three residents of the house after shooting one with the BB gun and pistol- whipping another. Henderson told Detective Mitchell that he saw Johnson, Davis, Joiner, and Gentry shortly after the robbery took place with items taken during the robbery. Gentry admitted to Detective Mitchell that he was the lookout, and further said that Johnson, Davis, and Joiner were the intruders and that Johnson had the BB gun. Davis admitted to Detective Mitchell that he was one of the robbers. Johnson told Detective Mitchell that he did not rob anybody, but he admitted carrying a BB gun one Friday morning and hitting somebody with it. No evidence was presented regarding any pretrial statements Joiner may have made. The jury found Johnson guilty on all counts relating to the robberies and found that he personally used the BB gun. The jury also found Gentry guilty on all counts except assault with a deadly weapon, but found all arming allegations not true. It was unable to reach a verdict on any count as to Joiner. Under the circumstances, it is clear that the jury “decide[d] separately whether each of the defendants [was] guilty or not guilty.” (CALJIC No. 17.00.) Therefore, it is not reasonably probable that the jury would have reached a different verdict as to Johnson had it been instructed in the language of CALJIC No. 17.00. (People v. Watson (1956) 46 Cal.2d 818, 836.) And, as the facts overwhelmingly established Johnson’s participation and role in the robberies, it is not reasonably probable that the jury would have reached a different verdict as to Johnson had it been instructed in the language of CALJIC No. 6.10.5. (See People v. Sully (1991) 53 Cal.3d 1195, 1231-1232.)

Evidence of poverty

The evidence showed that both Henderson and Gentry told Detective Mitchell that Johnson, Davis, Joiner and Gentry had a bottle of cash shortly after the robberies occurred, and were dividing up the cash amongst themselves. During his cross-examination of Gentry, the prosecutor asked him whether at the time of the robbery he was about to be evicted from his apartment for failing to pay rent. Gentry responded: “I don’t know. They said because we were too loud, but I think that rent had something to do with it.” Gentry also said that he and his roommates Davis and Larry Weaver had not yet paid that month’s rent, which was $1,350, and that they were short of money. And, Johnson had already been evicted from his Almaden Terrace apartment. Johnson was allowed to keep his things at Gentry’s apartment until he could find a new place to live.

During closing argument, the prosecutor argued that Johnson’s and other participants’ motives for participating in the robberies were that they needed money. The prosecutor pointed out portions of Mitchell’s taped interview of Johnson, where Johnson stated that he had recently paid off some debts. The prosecutor argued that Johnson needed money, and that “now all of a sudden he has money to pay” his debts even though he was being evicted from his and then Gentry’s apartment. None of the defendants objected to the prosecutor’s argument.

Johnson contends that admission of evidence that he and his codefendants needed money in order to show a motive to commit the robberies was improper and violated his right to a fair trial. He also argues that the prosecutor improperly relied upon the evidence in closing argument and that his counsel’s failure to object to the improper admission of the evidence constituted ineffective assistance.

“The issue of the relevance of evidence is left to the sound discretion of the trial court, and the exercise of that discretion will not be reversed absent a showing of abuse. [Citations.] That discretion is only abused where there is a clear showing the trial court exceeded the bounds of reason, all of the circumstances being considered. [Citations.]” (People v. DeJesus (1995) 38 Cal.App.4th 1, 32.)

Johnson is correct that evidence of a defendant’s poverty “without more” is inadmissible to establish motive to commit robbery “because it is unfair to make poverty alone a ground of suspicion . . . .” (People v. Edelbacher (1989) 47 Cal.3d 983, 1024 (Edelbacher).) It is also inadmissible because the probative value of poverty alone is considered outweighed by the risk of prejudice. (People v. Cornwell (2005) 37 Cal.4th 50, 96; People v. Wilson (1992) 3 Cal.4th 926, 939.) However, evidence of poverty or indebtedness may be relevant and admissible in some circumstances. Thus, “the sudden possession of money, immediately after commission of a larceny, by one who before that had been impecunious, is clearly admissible as a circumstance of the case.” (People v. Kelly (1901) 132 Cal. 430, 431-432; see also Edelbacher, supra, 47 Cal.3d at p. 1024.)

Here evidence of Johnson’s indebtedness and his eviction from his apartment for failure to pay rent, coupled with Gentry’s eviction from the apartment they subsequently shared, prior to the robberies, and Johnson’s possession of cash and payment of his debts immediately afterward, had “substantial relevance” to explain Johnson’s motive for the robberies and “this relevance clearly outweighed the risk of undue prejudice.” (Edelbacher, supra, 47 Cal.3d at p. 1024.) The trial court did not abuse its discretion in admitting the evidence. And, as the evidence was properly admitted, defense counsel cannot be faulted for any failure to object to it and the prosecutor was allowed to rely upon it to establish the presence of motive. (See CALJIC No. 2.51.)

Gentry’s probation condition

The trial court suspended imposition of Gentry’s sentence and placed him on probation with various terms and conditions. One condition was that he was not to “go to places where illegal drugs are used or sold or alcohol is the chief item of sale.” Gentry contends that this probation condition is unconstitutionally overbroad because it does not contain a requirement that he know illegal drugs are used or sold or know that alcohol is the chief item of sale at the places where he is prohibited from going. He requests that the condition be modified to include such a knowledge requirement.

Preliminarily, the Attorney General argues that Gentry’s contention is waived by the failure to object when the court imposed the probation condition. In People v. Welch (1993) 5 Cal.4th 228, 237, our Supreme Court held that failure to object to the reasonableness of a probation condition in the trial court waives the claim on appeal. (See In re Bushman (1970) 1 Cal.3d 767, 777, disapproved on other grounds in People v. Lent (1975) 15 Cal.3d 481, 486, fn. 1.) Here, Gentry is not challenging the condition on reasonableness grounds, but on constitutional grounds. There is a split of authority regarding whether the Welch waiver rule applies to claims that a probation condition is unconstitutionally vague or overbroad, and the matter is now before our Supreme Court in the context of a juvenile probation condition. (In re Sheena K. (2004) 116 Cal.App.4th 436, review granted June 9, 2004, S123980.) In addition, Gentry contends that his counsel’s failure to object to the condition constitutes ineffective assistance. We will therefore consider the merits of Gentry’s challenge.

The Attorney General argues that no modification of the probation condition is required because a knowledge requirement is fairly implied in the condition as stated. However, the Attorney General also requests that, if this court does modify the probation condition, it include an objective as well as subjective knowledge requirement.

Without an explicit knowledge requirement, the probation condition is unconstitutionally defective because it renders Gentry vulnerable to criminal punishment for frequenting a place not known to him to be one where illegal drugs are used or sold or where alcohol is the chief item of sale. (See People v. Lopez (1998) 66 Cal.App.4th 615, 628-629; People v. Garcia (1993) 19 Cal.App.4th 97, 102-103 (Garcia).) Given “the rule that probation conditions that implicate constitutional rights must be narrowly drawn, and the importance of constitutional rights,” we agree with Gentry that the knowledge requirement “should not be left to implication.” (Garcia, supra, 19 Cal.App.4th at p. 102.) The unconstitutional defect is easily remedied by modifying the condition to expressly require knowledge: while on probation Gentry is not to “knowingly go to places where illegal drugs are used or sold or alcohol is the chief item of sale.”

DISPOSITION

The judgment as to Gentry is ordered modified to reflect modification of the relevant probation condition to read as follows: “The defendant will not possess or consume alcohol or illegal drugs or knowingly go to places where illegal drugs are used

or sold or alcohol is the chief item of sale.” As so modified, the judgment as to Gentry is affirmed.

The judgment as to Johnson is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

__________________________

MIHARA, J.

_________________________

MCADAMS, J.

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[1] Further unspecified statutory references are to the Penal Code.

[2] Aviles was known to his friends and referred to at trial as Tony.

[3] Chicas testified under a grant of immunity. The jury was informed that she had recently been convicted of robbery and was awaiting sentencing.

[4] Henderson was known and referred to at trial as Tweet.

[5] Henderson testified that he was doing so under a promise from the district attorney that he would not be prosecuted for lying to the police, but that he could be prosecuted if he admitted being involved in the robbery.

[6] Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

[7] At the sentencing hearing the prosecutor stated that all of the jurors had approached him after trial and requested leniency for Gentry, and that two jurors had written letters on his behalf.

[8] In Johnson’s opening brief, he argues that the trial court also erroneously admitted into evidence the probation report regarding his prior conviction. However, in his reply brief, Johnson acknowledges that the probation report was removed from Exhibit 8 before it was admitted into evidence.

[9] Johnson was on probation at the time, with a search condition of probation.

[10] “A conspiracy is an agreement between two or more persons with the specific intent to agree to commit the crime of _____, and with the further specific intent to commit that crime, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime, but is not charged as such in this case. [¶] In order to find a defendant to be a member of a conspiracy, in addition to proof of the unlawful agreement and specific intent, there must be proof of the commission of at least one overt act. It is not necessary to such a finding as to any particular defendant that defendant personally committed the over act[, if [he] [she] was one of the conspirators when the alleged overt act was committed]. [¶] The term ‘overt act’ means any step taken or act committed by one or more of the conspirators which goes beyond mere planning or agreement to commit a crime and which step or act is done in furtherance of the accomplishment of the object of the conspiracy. [¶] To be an ‘overt act,’ the step taken or act committed need not, in and of itself, constitute the crime or even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor is it required that the step or act, in and of itself, be a criminal or unlawful act.” (CALJIC No. 6.10.5.)

[11] “Each defendant in this case is individually entitled to, and must receive, your determination whether [he] [she] was a member of the alleged conspiracy. As to each defendant you must determine whether [he] [she] was a conspirator by deciding whether [he] [she] willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy. [¶] Before you may return a guilty verdict as to any defendant of the crime of conspiracy, you must unanimously agree and find beyond a reasonable doubt, that (1) there was a conspiracy to commit the crime[s] of _____, and (2) a defendant willfully, intentionally and knowingly joined with any other or others in the alleged conspiracy. You must also unanimously agree and find beyond a reasonable doubt, that an overt act was committed by one of the conspirators. You are not required to unanimously agree as to who committed an overt act, or which overt act was committed, so long as each of you finds beyond a reasonable doubt, that one of the conspirators committed one of the acts alleged in the [information] [indictment] to be overt acts.” (CALJIC No. 6.22.)

[12] “You must decide separately whether each of the defendants is guilty or not guilty. If you cannot agree upon a verdict as to [both] [all] the defendants, but do agree upon a verdict as to any one [or more] of them, you must render a verdict as to the one [or more] as to whom you agree.” (CALJIC No. 17.00.)

In re William M.

2005-12-02T13:40:00.000-08:00

Filed 12/1/05 In re William M. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re WILLIAM M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

WILLIAM M.,

Defendant and Appellant.

F047697

(Super. Ct. No. JJD055339)

MODIFICATION OF OPINION; DENIAL OF REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:^*

It is ordered that the opinion filed herein on November 15, 2005, be modified as follows:

1. On page 2, line 3, delete the words “for a maximum term of confinement of 11 years” so the sentence reads:

In this proceeding under Welfare and Institutions Code section 602, William M. appeals a dispositional order committing him to the California Youth Authority (CYA).

2. On page 3, lines 11 and 12, delete the sentence that reads “Without further comment the court imposed the maximum term of confinement of 11 years” and substitute the following:

The court imposed sentence on each count, and in some instances imposed no time to be served for particular counts, thus exercising its discretion. The court stated the maximum term of confinement was 11 years

3. On page 3, line 12, delete footnote 1:

4. On page 3, line 14, add a new footnote 1 at the end of the first sentence of the second full paragraph on the page:

Although the parties have not raised the issue of the calculation of the maximum term of confinement to CYA, there is a discrepancy between the maximum term of confinement of 11 years announced by the juvenile court and the actual maximum term of confinement achieved when the component terms imposed by the juvenile court are added together. In addition, the order of commitment to CYA contained in the clerk’s transcript inaccurately reflects some of the individual terms imposed by the court and the total term. The juvenile court imposed a term of three years for the violation of Penal Code section 12101, subdivision (a) contained in the August 5, 2002 petition; the order incorrectly states the term as eight months. The juvenile court imposed a term of 16 months for the violation of Penal Code section 459 (burglary in the first degree) contained in the December 29, 2004 petition; the order of commitment incorrectly states that the court imposed a term of six years. When these two corrections are made to the order of commitment and the terms are added together, the resulting total maximum term of confinement should be 10 years, four months.

5. Beginning with the words “An order is presumed correct …” at page 3, line 14, delete the remainder of the opinion, including the disposition, and substitute the following:

Disposition

The trial court is ordered to correct the order of commitment to reflect the changes set forth in footnote 1 above and to forward the corrected order to the appropriate authorities. In all other respects, the judgment is affirmed.

This modification does not effect a change in the judgment.

Appellant’s petition for rehearing is denied.

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^* Before Vartabedian, Acting P. J., Cornell, J., and Gomes, J.

In re Rebecca A.

2005-12-02T13:39:00.000-08:00

Filed 12/1/05 In re Rebecca A. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re REBECCA A. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY DEPARTMENT OF CHILDREN’S SERVICES,

Plaintiff and Respondent,

DEBRA S.,

Defendant and Appellant.

E037588

(Super.Ct.No. J188063,

J188064 & J188065)

OPINION

APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Craig E. Arthur and Cheryl A. Geyerman, under appointments by the Court of Appeal, for Defendant and Appellant.

Ronald D. Reitz, County Counsel, and Dawn M. Messer, Deputy County Counsel, for Plaintiff and Respondent.

John L. Dodd, under appointment by the Court of Appeal, for Minors.

Debra S. (mother) appeals from findings and orders made at a contested 18-month review hearing under Welfare and Institutions Code ^{^[1]} section 366.22. Mother contends that the finding that it would be detrimental to return minors Brian A. and Rebecca A. to her care and custody was not supported by substantial evidence, and the court erred in reducing visitation. We find no error, and we affirm.^{^[2]}

FACTS AND PROCEDURAL BACKGROUND

In April 2003, the San Bernardino County Department of Children’s Services (Department) filed petitions under section 300 alleging that mother’s children^{^[3]} were at risk of physical or emotional harm due to parental neglect and abuse. The detention report stated that a community member had found Brian wandering in a vacant lot two or three miles from his home at around 6:30 in the morning on April 24, 2003. Mother did not report him missing until around 9:00 a.m. He told the police he had spent the night in the vacant lot in a “motor home” he had built for himself.

When the police took him home, mother reported that he had run away from her while she was walking him to the school bus. The bus had left without him, and mother thought he had run to school. She had called the school around 9:00 a.m. to find out if he had made it to school, but she was told he was not there. She denied he had been out of the house all night.

The house was dirty and cluttered. Francisco was in a bedroom smoking cigarettes; there were beer cans and alcohol bottles on a table in the room. Mother and her boyfriend, the younger children’s father, George A.,^{^[4]} each denied buying the alcohol and cigarettes; each said the other had bought them. George stated that Francisco had gotten James drunk and that James had vomited all night. Francisco admitted this was true. Teresa said that George had sexually abused her and Kimberly. Teresa said she had told mother about the sexual abuse, but mother had questioned whether it had happened. Kimberly was missing when the other children were detained, and the police learned she was pregnant and living with her adult boyfriend. The police arrested mother and George.

At the detention hearing, the juvenile court removed the children from parents’ care and custody and ordered visitation.

The jurisdiction/disposition report stated that Brian showed developmental delays and below-average fine motor skills. He also showed signs of reactive attachment disorder and hyperactivity. Rebecca, who had been born prematurely, had a heart problem and had had a pacemaker implanted. She functioned at the level of a three year old.

Mother visited the children weekly; the social worker described the visits as chaotic. The children would scream, run around, and touch each other inappropriately, but mother failed to correct them. Mother continually complained about the Department, although she had been warned not to discuss the matter with the children.

A first addendum report stated that Francisco had run away from his group home before the jurisdictional hearing, and the police had mistakenly returned him to parents. When the police discovered the mistake and returned to pick him up, parents helped Francisco escape through a window. Parents were arrested for resisting arrest and contributing to the delinquency of a minor. Meanwhile, Francisco remained at large.

Dr. Lake, a psychologist, assessed Brian with attention deficit hyperactivity disorder (ADHD) and recommended a medication evaluation by a psychiatrist. Dr. Lake believed that Rebecca had signs of autism as well as moderate to severe mental retardation and recommended she be sent to a neuropsychologist. Dr. Lake stated her opinion that continued visitation with mother would be detrimental to the children, and she recommended discontinuing visitation until appropriate interventions took place to prevent ongoing emotional damage. She further recommended that mother undergo a psychological evaluation.

A second addendum report dated July 18, 2003, stated that mother had refused to accept responsibility for her problems and declined services that were offered. The social worker had arranged for the three younger children to visit mother separately from the older children, and the visits had become less chaotic. Meanwhile, Teresa had turned 18 and had been released from the dependency, and she was again living with mother.

At the jurisdictional hearing, the court removed the children from parents’ custody and ordered reunification services and weekly supervised visitation.

The report prepared for the six-month review hearing recommended that James, Brian, and Rebecca remain in foster placement and that further reunification services be provided. The social worker stated that mother was being more cooperative and less manipulative. Mother was diagnosed with mild to moderate obsessive compulsiveness and narcissistic features. She also suffered from diabetes and lupus, and she was undergoing counseling to deal with issues of parental neglect, sexual abuse, and George’s recent suicide. She completed a parenting class and was making good progress in her case plan.

At the six-month hearing in January 2004, the court returned Kimberly to mother’s care under a family maintenance plan but continued the younger children in out-of-home care. The court found that mother’s progress had been minimal, and the court continued reunification services.

In March 2004, Brian was returned to mother’s care under a family maintenance plan; however, he was redetained in July 2004 after a social worker found him in a busy intersection wearing only jeans, one sock, and no shoes. He had several apparent cigarette burns on his arm and marks on his back that he attributed to mother’s pushing him down on the street. He had a cigarette lighter, rolling papers, and a baggie of tobacco. He said that mother had hit him with a coat hanger. While in the police car, he stated several times he wanted to kill himself, and he wrapped the shoulder strap of the seat belt around his neck.

Mother denied knowledge of the marks on Brian’s body, but later admitted she and her daughter had “manhandled” him when trying to get a cigarette lighter away from him. She said he might have received the marks on his body when he climbed out the window. She said that Brian had been gone when she woke up that morning, and she had asked his siblings, who were there for a visit, to look for him, but no one did. The home was disorganized. Brian’s room had no clothing or toys, and the window was broken and covered with a sheet. Mother was arrested and charged with cruelty to a child. She entered a plea of guilty and was placed on probation. The Department filed a supplemental petition based on the incident.

The report prepared for Rebecca’s 12-month hearing stated that mother was in denial and failed to take responsibility for the children’s detention. She participated in some aspects of her case plan, but she was inconsistent in her attendance at therapy. Rebecca had returned from a visit with mother with bruises; she stated Brian had inflicted them when he pushed her.

Mother’s participation in counseling had been inconsistent, and she had missed more sessions than she attended. She had completed two parenting classes. She had been referred to the STOP program to help with transitioning the children back into her home, but she made excuses as to why she could not participate.

In the August 2004 jurisdictional/disposition report concerning Brian’s supplemental petition, the social worker noted that Brian’s school attendance had been irregular. Mother said she could not get him to go to school when he did not want to go. Mother had not followed through with counseling for Brian and had missed several scheduled visits.

The court gave mother an additional six months of reunification services.

The report prepared for the 18-month review recommended termination of services and a permanent plan of long-term foster care for Rebecca. The report stated that mother had a limited understanding of Rebecca’s medical needs and minimized her condition. The report stated that Rebecca was at a high risk of abuse because of her medically fragile condition and developmental delays. She also required close supervision because she was very friendly and approached anyone.

The 18-month review report also recommended a permanent plan of long-term foster care for Brian and maintenance services for James. Brian had adjusted well to his group home, although he sometimes cried because he missed his mother; the social worker also believed he cried because of his father’s death and his unstable home life. Mother visited Brian, but she was unable to redirect him when his behavior was inappropriate. In December, mother had been admitted to the hospital for treatment of her lupus.

At the 18-month review hearing, Brian’s social worker testified that mother had failed to complete her case plan and had failed to complete her counseling requirement. Despite having completed several parenting classes, mother had to be prompted to interact with the children during visits. The social worker wanted to reduce visitation, although the children enjoyed the visits with mother. The social worker did not believe that mother could provide the structured environment Brian needed or care adequately for Rebecca’s special needs. Rebecca’s social worker testified that mother had missed three visits in December without contacting the Department, and each time, Rebecca had had to wait. The foster mother had reported that Rebecca had behavioral problems because of the missed visits. Rebecca’s social worker did not believe mother could adequately care for Rebecca’s medical condition.

Mother testified she believed she had completed her case plan and that she was capable of caring for her children adequately. She had received special training to deal with Rebecca’s medical needs.

Following the hearing, the court allowed James to remain in mother’s care under a family maintenance program. The court found that mother had failed to finish her case plan and that returning Brian and Rebecca to mother’s care and custody would be detrimental. The court reduced mother’s visitation with Brian and Rebecca to two times per month, but gave the social worker discretion to increase visitation. The court ordered a long-term plan of foster care for Brian and Rebecca.

DISCUSSION

A. Finding of Detriment

The juvenile court found that returning Brian and Rebecca to mother’s care and custody would be detrimental. Mother contends this finding was not supported by substantial evidence.

1. Standard of Review

When an appellant challenges a finding of the juvenile court on the grounds of insufficient evidence, this court must review the evidence in the light most favorable to the juvenile court’s order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.) We do not reweigh the evidence and substitute our judgment for that of the juvenile court. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.)

2. Substantial Evidence Supports the Finding of Detriment

The juvenile court’s duties at the 18-month review hearing are set forth in section 366.22, subdivision (a): “The court shall order the return of the child to the physical custody of his or her parent or legal guardian unless the court finds, by a preponderance of the evidence, that the return of the child to his or her parent or guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child. The social worker shall have the burden of establishing that detriment.”

In addition, “failure of the parent . . . to participate regularly and make substantive progress in court-ordered treatment programs shall be prima facie evidence that return would be detrimental.” (§ 366.22, subd. (a).) The trial court found that “[m]other’s extent of progress which has been made towards alleviating or mitigating the causes necessitating placement has been minimal as described in the social worker’s report.”

The evidence showed that mother failed to complete the counseling component of her reunification plan. The social worker testified that mother had not attended sessions since early December 2003, and before that, her attendance had been sporadic. She was given a referral to the FIX program in August 2004, but she did not enroll until December 2004. She made excuses as to why she could not participate in the STOP program, which would have helped her with the transition of the other children back to her home. Mother believed she needed counseling only as to James’s behavioral issues.

Mother’s reunification plan also required her to accept responsibility for her actions and to parent the children adequately. However, she never accepted responsibility for the children’s removal and continued to blame the Department. In addition, despite having completed two parenting classes, mother continued to have no control over the children – she would not force the children to go to school if they did not want to go; she did not discipline Brian for hitting Rebecca; she could not get Brian to take his medication; she hit Brian with a coat hanger; and she called the police on the children.

Mother contended that her medical problems prevented her from complying with all aspects of her reunification plan. However, mother did not attend a lupus support group to which the social worker referred her, and she refused a referral for dental services. She also failed to follow through with referrals for services for James. Substantial evidence supports a finding that mother failed to make substantive progress on her treatment plan, and such failure is prima facie evidence of detriment. (§ 366.22, subd. (a).)

Other evidence further supports the finding of detriment. Mother had showed an inability to parent the older children adequately. Teresa was in the eighth grade at age 18; Kimberly became pregnant at age 15 and was living with her adult boyfriend; Francisco was arrested for burglary, and James had behavioral problems and difficulties in school. Mother helped Francisco escape when the police arrived to redetain him. Brian was found wandering the streets twice while in mother’s care. Brian and Rebecca returned from visits with mother with unexplained markings on their bodies and with dirty clothing. Mother had allowed her teenaged son to smoke cigarettes and alcohol, and Brian was found with smoking paraphernalia. Mother told the social worker that Brian was one of her “worst children.”

The record shows that Brian exhibited a greater degree of emotional problems while in mother’s care. He once yelled at mother and threw a shoe through a window when mother told him to take his medication. When he was redetained in July 2004, he said he wanted to kill himself, and he wrapped a seatbelt strap around his neck to try to choke himself. He had, however, adjusted well to his group home. Although he cried at times, the social worker believed it was because of his father’s death and his unstable home life as well as because of missing mother.

Finally, the evidence established that Rebecca was a medically fragile child; her medical condition required that she have a hygienic environment and take her medication. However, mother’s home was dirty and disorganized, and Rebecca’s clothing was often dirty after her visits with mother. Rebecca was also developmentally delayed, and she lacked boundaries with strangers. Mother failed to protect Rebecca from Brian’s hitting.

We conclude the juvenile court’s finding of detriment finds ample evidentiary support in the record.

B. Reduction in Visitation

Mother contends the juvenile court erred in reducing her visitation with Brian and Rebecca from weekly visits to twice monthly visits.

1. Standard of Review

We review the juvenile court’s visitation orders under the deferential abuse of discretion standard. (In re Stephanie M., supra, 7 Cal.4th at p. 318.)

2. Visitation Order

The trial court stated that visitation would be twice monthly, and “[m]other needs to contact 24 hours in advance of any visit. If mother does meet with the children and has a track record where she shows up to visits, the department – social worker shall have the authority to liberalize visitation to include more visitations as appropriate.” The court also ordered that weekly sibling visitations would continue.

Section 366.22, subdivision (a) provides, “The court shall continue to permit the parent . . . to visit the child unless it finds that visitation would be detrimental to the child.” The court has the authority to determine the length and frequency of visitation and may impose other conditions or requirements on visitation depending on the particular circumstances. (In re Jennifer G. (1990) 221 Cal.App.3d 752, 757.)

The record shows that in December 2004, mother missed three visits in a row without canceling, and she missed another visit in late January 2005. On each of those occasions, Rebecca had to wait for at least half an hour at the Department’s office, and she then had behavioral problems when mother failed to show up. The children initially enjoyed their visits with mother, but would then play with each other, and mother had to be prompted to interact with them. She also made inappropriate comments about the Department in front of the children, despite being warned not to do so.

The court’s order provides that if mother visits the children consistently every other week, the social worker has discretion to liberalize visitation. We find no abuse of discretion in the visitation order.

DISPOSITION

The juvenile court’s findings and orders are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

We concur:

RAMIREZ

P.J.

KING

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^{^[1]} All further statutory references are to the Welfare and Institutions Code.

^{^[2]} In a letter brief, counsel for Brian and Rebecca agrees with the position of respondent and urges affirmation of the orders appealed from.

^{^[3]} Mother has seven children. The petitions were filed as to the oldest six children: Teresa S. (born in June 1985); Kimberly S. (born in September 1986); Francisco S. (born in February 1988); James A. (born in November 1993); Brian A. (born in May 1995); and Rebecca A. (born in August 1996). Mother gave birth to another son, Anthony S., in August 2003, after the current dependency proceedings began; Anthony is not a subject of this appeal.

The notice of appeal lists James, Brian, and Rebecca; however, no contention is raised on appeal concerning James. Therefore, only Brian and Rebecca are subjects of this appeal, and the statement of facts thus generally omits evidence relevant primarily to the proceedings regarding the other children.

In addition, the children’s fathers are not parties to this appeal. George A., the father of James, Brian, and Rebecca, committed suicide in July 2003. The father of the oldest three children does not challenge the findings and orders.

^{^[4]} Mother and George A. are occasionally referred to herein as “parents.”

In re Maya K.

2005-12-02T13:36:00.001-08:00

Filed 12/1/05 In re Maya K. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re MAYA K., a Person Coming Under the Juvenile Court Law.

SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

G. B.,

Defendant and Appellant.

D046553

(Super. Ct. No. J515765)

APPEAL from a judgment of the Superior Court of San Diego County, Cynthia Bashant, Judge. Affirmed in part; reversed in part and remanded with directions.

G. B. appeals a judgment declaring her daughter Maya K. a dependent of the juvenile court under Welfare and Institutions Code^{^[1]} section 300, subdivision (b) and removing her from parental custody under section 361, subdivision (c)(1). G. contends the petition did not state a cause of action or, alternatively, the jurisdictional allegations of the petition were not supported by substantial evidence. She further argues the court's dispositional order removing Maya from her custody was not supported by substantial evidence. We affirm the finding of jurisdiction, reverse the dispositional order, and remand for a new disposition hearing.

Maya is a nine-year-old girl with severe language and developmental delays possibly caused by a combination of mental retardation, social isolation in early childhood and a non-existent native language environment. Her mother, G., is a refugee from Eritrea.^{^[2]}

On April 8, 2005, the San Diego County Health and Human Services Agency (the Agency) filed a two-count petition under section 300, subdivision (b), alleging G. was mentally ill and Maya had suffered or was at substantial risk of suffering serious physical harm or illness due to G. 's inability to provide regular care. The Agency also alleged G. refused to provide Maya with the care and treatment required for her developmental disabilities.

The family's history is worth noting. When Maya was five months old, G. found work in Lebanon as a maid for a wealthy family. While G. worked, Maya stayed alone in a back room. Maya displayed persistent developmental delays and did not speak until she was more than three years old. In Beirut, G. had Maya evaluated and placed her for a short time in a school for handicapped children. That evaluation ruled out a diagnosis of autism.

In July 2002, with the assistance of the United Nations and African aid agencies, G. and Maya immigrated to the United States. G. did not speak English. Although Maya uttered single words in Arabic, she was essentially nonverbal. Maya, then age six, was not toilet trained, was unable to dress herself or brush her teeth, and could not be left unattended due to her extreme hyperactivity.

African aid agencies helped G. settle. G. enrolled Maya in a public school and participated in the development of her Individualized Education Program (IEP). (See 20 U.S.C. § 1400 et seq. [Individuals with Disabilities Education Act]; Ed. Code, § 56000 et seq.) G. sought assistance for Maya through the San Diego Regional Center for the Developmentally Disabled (SDRC).

In May and November 2003, school staff reported Maya was in excellent health and making excellent progress in communication and reciprocal social interaction. She met her educational and social goals. However, Maya's developmental disabilities remained profound. She was diagnosed with moderate mental retardation and attention deficit hyperactivity disorder (ADHD). Autism was again ruled out. Maya's language skills were estimated to be at the level of a two-year-old. She required constant supervision.

In September 2004, Maya entered third grade in a specialized classroom with five other students. She had a one-on-one aide. G. requested a reading program for Maya and an Arabic/English interpreter for IEP and home services. An education consultant worked closely with G. and the school to clarify misunderstandings. SDRC social worker Linda Kourtis also provided support. Nevertheless, Maya's school attendance became irregular. In November and December 2004, the school held IEP's to discuss her inconsistent attendance. School staff had no other concerns about Maya.

In February 2005, G. requested a meeting to discuss her fears about Maya's safety at school. G. was unusually emotional at the meeting and said she was "waiting for her burial." On February 23, Kourtis went to G. 's home to see why Maya was not at school. G. told Kourtis she did not send Maya to school because the school was not taking good care of her. G. 's home was in complete disarray. There was trash throughout the home. The food supply was low. G. said she was not hungry and had not been eating. She had run out of medication needed to treat her diabetes. Gas and electricity were about to be turned off for lack of payment. There was no telephone service. Kourtis had worked with G. and Maya for several years and found the condition of G. 's home and her pessimistic outlook highly unusual. She initiated a referral to child protective services.

Kinnary Jongcharoeun, an Agency social worker, offered G. emergency food assistance, which G. declined, stating she could obtain her own food. On February 25, 2005, Jongcharoeun returned to the home. The food supply had improved. There was no trash on the floor but the bedroom remained cluttered. G. said she planned on going to her doctor that day, but did not keep the appointment to treat her diabetes because she was tired after taking Maya to the dentist. On March 8, Jongcharoeun and the county public health nurse (PHN) made a home visit. G. said she was depressed and frustrated because she was not receiving promised assistance from African aid agencies. Two days later, G. became hysterical at school when Maya was not immediately available. G. could not be calmed until Maya arrived. The PHN made appointments for G. to see a psychiatrist and a new primary care physician. She also scheduled a psychiatric consultation for Maya.

G. refused several times to keep the mental health appointments, stating her problems were physical, not mental. She wanted to consult a primary care physician conversant with her language and culture but did not follow up with any medical care. G. did not allow Maya to be evaluated. She believed Jongcharoeun planned to take Maya away from her.

By April 2005, social workers concluded that G. 's refusal to obtain recommended evaluations placed Maya at risk of neglect. The Agency believed Maya was autistic. Social workers considered a voluntary service plan; however, they did not believe one would be effective due to G. 's lack of cooperation. The Agency filed a petition and requested Maya be detained. On April 8, the court detained Maya, authorized psychological and medical evaluations for G. and psychological and developmental evaluations for Maya. The court ordered the Agency to facilitate visitation and to work with G. to ensure she understood the dependency process.

The detention was traumatic for Maya. During the hearing, she became agitated. When court ended, she was physically restrained by social worker Stephanie Garcia and others. G. was asked to leave the courtroom and did. Maya tried to leave, crying "Mama," and yelling and screaming. Following detention, Maya was hospitalized for five days in a psychiatric facility.^{^[3]} She was released to a foster home. Maya did not eat or sleep the first day and night. She did not calm down until the next day when she was allowed to speak with G. The foster parent was unable to cope with Maya's need for "twenty-four seven" care and, after two days, requested she be removed. After a short stay at Polinsky Children's Center, Maya was placed in a SDRC group home. That removal was also traumatic; however, Maya adjusted well to the group home.

The day Maya was detained G. become despondent. She was committed to the county psychiatric hospital under section 5150. G. was diagnosed with a depressive disorder, treated for diabetes and monitored for a mood disorder and impulse control. She was released after one week.

The combined jurisdiction/disposition hearing was held on May 20 and 27, 2005.

G. moved to dismiss the case on the basis the factual allegations of the petition were insufficient to state a cause of action. The court denied the motion.

Kourtis testified she began working with G. and Maya in November 2002, meeting with them many times. G. was very involved with Maya's care and concerned about her safety and education. SDRC initially made referrals to several programs. G. and Maya participated in a behavior modification program; however, G. refused offers for respite care and exceptional parent training. Maya progressed in G. 's care. Kourtis never received any reports questioning Maya's physical or emotional health from school personnel or other service providers. Maya appeared happy in G.'s care.

In February 2005, Kourtis became alarmed at what she perceived to be a rapid deterioration in G. 's mental and physical health and her ability to meet Maya's exceptional needs. Kourtis was aware G. was diagnosed with diabetes and ran out of medication in December 2004. Kourtis equated the decline in G.'s mental health with lack of treatment for diabetes. G. told Kourtis people from the African community wanted to kill her and Maya and she needed to stay in the house. The disarray in the home was highly unusual and, in that condition, the home was not a safe environment for Maya.

The Agency's social worker Garcia was assigned to the case on April 6, 2005. She prepared the reports. There were no prior reports indicating Maya was physically or emotionally abused by G. She first met G. the day of the detention hearing. G. told Garcia she would do anything she needed to do to maintain custody of Maya. However, G. then refused to speak with her, saying she did not believe Garcia was helping the family. On April 26, an agitated G. accused Garcia of abusing Maya at the detention hearing, telling her, "I saw you in her body." Because of these accusations, Garcia believed G. continued to demonstrate mental health problems.

Social worker Jongcharoeun testified there was a protective risk to Maya due to the cluttered home, the limited food in the home, the child's absence from school and G's poor health and uncooperative attitude.

G. blamed her high stress levels on concern for Maya. She felt as if her problems never stopped. Maya's education was not going well and the school did not take her concerns seriously. Due to her diabetes, G. was too weak to properly clean her home. Maya was absent from school because G. was ill. She could not bathe, dress and feed Maya and take her to the bus. G. fainted occasionally but denied doing so when Maya was present. G. did not believe she had any mental health conditions. She was taking medication for diabetes under her doctor's care.

G. denied telling Kourtis someone wanted to kill her and Maya. She denied saying she was waiting to be buried. She appeared puzzled by a question about her statement that Garcia was "in" her child's body, responding, "How could she live if she went inside my daughter?" On the day of detention, she saw Garcia pick up and drag Maya. G. was willing to take Maya to school and counseling and follow a treatment plan. She did not believe Maya had a disease, only a speech delay.

After Maya was detained, G. saw psychologist Eke F. Wokocha, Ph.D., weekly. Dr. Wokocha stated he did not have any concerns about G.'s mental health. She was not psychotic and did not have any serious mental health issues preventing her from caring for Maya. G. needed counseling to cope with her stressful situation. Dr. Wokocha did not believe G. neglected Maya. However, G. needed to keep Maya in an appropriate classroom placement and maintain her therapy. He recommended Maya be immediately returned to G. with in-home services. Maya's pediatrician also recommended family reunification.

The court sustained both counts of the petition, finding by a preponderance of the evidence Maya was a child described by section 300, subdivision (b) in that G. exhibited signs of mental illness and had difficulty maintaining safe conditions in the home and appropriately caring for Maya. The court found that G. denied Maya had any disability other than a speech delay, exhibited paranoia toward people trying to help her and tended to keep Maya isolated. The court adopted the Agency's recommendations set forth in the Agency's report of April 26, 2005, finding continued placement in foster care appropriate under section 361, subdivision (c)(1). The court ordered G. to undergo a psychological evaluation to help determine what services were required for family reunification.

DISCUSSION

I

Challenge to the Sufficiency of the Petition

G. argues the court erred when it denied her motion challenging the sufficiency of the petition. She contends the petition did not state facts to show Maya was physically harmed or at risk of serious physical harm as required as a basis for jurisdiction under section 300, subdivision (b). G. contends the failure to state a cause of action requires reversal regardless of the sufficiency of the evidence. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1132-1137; In re Alysha S. (1996) 51 Cal.App.4th 393, 396-400.) We disagree.

If the jurisdictional findings are supported by substantial evidence, the adequacy of the petition is irrelevant. (In re Athena P. (2002) 103 Cal.App.4th 617, 626-627; see also In re Jessica C. (2001) 93 Cal.App.4th 1027, 1036-1038.) The only exception occurs when a parent claims a petition fails to provide actual notice of the factual allegations. Unless the alleged factual deficiencies result in a miscarriage of justice, the reversal of a jurisdictional order supported by substantial evidence is unwarranted. (In re Athena P., supra, at pp. 627-628; In re Jeremy C. (1980) 109 Cal.App.3d 384, 397.)

G. does not argue she received inadequate notice of the factual allegations. Therefore, we review the petition for substantial evidence and need not separately address her claim the petition did not state a cause of action.

II

Jurisdiction

G. challenges the sufficiency of the evidence supporting the jurisdictional order. We review the trial court's findings for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The evidence must be reasonable in nature, credible, and of solid value. (DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

Section 355, subdivision (a) provides:

"At the jurisdictional hearing, the court shall first consider only the question whether the minor is a person described by Section 300. Any legally admissible evidence that is relevant to the circumstances or acts that are alleged to bring the minor within the jurisdiction of the juvenile court is admissible and may be received in evidence. Proof by a preponderance of evidence must be adduced to support a finding that the minor is a person described by Section 300."

Here, the Agency alleged under section 300, subdivision (b):

"The child has suffered, or there is a substantial risk that the child will suffer serious physical harm or illness as a result by the inability of the parent or legal guardian to provide regular care for the child due to the parent's or legal guardian's mental illness, developmental disability, or substance abuse. [¶] Count 1: On or about and between February 1, 2005 to April 7, 2005, the mother had a mental illness, as evidenced by the mother's statements that people are out to kill her and her daughter, that she is waiting for her burial, and that her home is a mess because agencies are fighting with each other, which rendered her incapable of providing regular care for said child and and [sic] said child is in need of the protection of the Juvenile Court. [¶] Count 2: On or about and between January 1, 2005 to April 7, 2005, the minor had a mental condition including autism and mild mental retardation with ADHD requiring care and treatment for which the mother has failed and refused to provide and the child is in need of the protection of the Juvenile Court."

After hearing the evidence, the court is required to make a finding whether the minor is described by section 300 and the specific subdivisions of section 300 by a preponderance of the evidence. (§§ 356, 355, subd. (a).)

G. contends the evidence is insufficient to support a true finding under count 1 of the petition. She asserts no qualified professional diagnosed her with a mental illness or disorder and no evidence supports the finding that her behavior created a substantial risk of serious physical harm or illness to Maya. G. argues her behavior and statements were misinterpreted due to cross-cultural differences and did not constitute substantial evidence of depression, suicidal ideation or delusion.

We fully recognize the tremendous burdens G. faced. She was a refugee, a single parent with a disabled child and a non-native speaker; she had limited financial and social resources and had health and legal problems. Any one of these issues would be a significant stressor on a person's mental and physical health.

However, in early 2005, G.'s mental health and her ability to adequately care for Maya deteriorated rapidly. G. felt overwhelmed and hopeless. She did not want to leave her house for fear people wanted to kill her and Maya. Her fears for Maya's safety were magnified. G. did not trust anyone else to properly care for Maya. G. became hysterical at the school when Maya was not immediately available and could not be calmed until she arrived. There was a marked change in G.'s outlook and ability to function. She was excessively anxious, fearful, reclusive, isolated and in despair. She refused to seek medical or psychological treatment until a crisis forced her hospitalization. After she was professionally diagnosed with a depressive disorder, G. continued to deny she had mental health concerns. We resolve all reasonable inferences from the evidence in favor of the prevailing party. (In re Ricardo L. (2003) 109 Cal.App.4th 552, 564.) Substantial evidence supports the court's finding of mental illness.

G. argues serious physical harm or illness to Maya cannot be presumed from the mere fact that a parent has a mental illness. (Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1079.) We agree with G. the appropriate test is whether "the parent's mental illness and resulting behavior adversely affect the child or jeopardize the child's safety." (Ibid.) The risk to the child's health or safety must be substantial or serious. (In re Rocco M. (1991) 1 Cal.App.4th 814, 823, italics added.)

If Maya were a competent nine-year-old, we might agree the risk of serious physical harm or illness caused by G.'s inability to attend to basic tasks did not rise to

a substantial level. (See In re Rocco M., supra, 1 Cal.App.4th at p. 824 [risk of serious physical harm varies according to age of child].) However, Maya is an extraordinary child. She requires exceptional care. G. was not able to bathe, dress and feed Maya and take her to school. Maya could not complete these tasks by herself. In many respects, Maya was as vulnerable as a toddler. On at least one occasion, G. was unable to clean her home and its condition was unsafe for Maya. G. occasionally fainted. Unlike many other nine-year-olds, Maya was not a child who could ask a neighbor for help or telephone for assistance. And, as G. clearly recognized, Maya required constant supervision and would be at substantial risk of serious injury if no one were available to care for her.

The court also accurately assessed G.'s inability or reluctance to send Maya to school as a risk factor. Maya's schooling provided her with communication and socialization services to help her become more self-sufficient. While a substantial risk of serious physical harm or illness may not necessarily be inferred from a potential lack of education (see In re Janet T. (2001) 93 Cal.App.4th 377), Maya's irregular school attendance increased the risk of serious harm instead of mitigating it. The court properly found that G.'s tendency to isolate Maya at home also increased the risk of serious harm, noting Maya's isolation in early childhood may have contributed to her significant developmental delays.

The court need not wait until a child becomes seriously injured or ill before determining he or she is in need of protection. (In re Heather A. (1996) 52 Cal.App.4th 183, 194-196; In re Michael S. (1981) 127 Cal.App.3d 348, 357-358.) Substantial evidence supports the court's finding that Maya was at substantial risk of serious physical harm or illness due to G.'s inability to provide regular care.

G. argues there is insufficient evidence to sustain count 2 of the petition alleging Maya was at substantial risk of serious harm due to her refusal to provide Maya with care and treatment for her disabilities. We need not address this argument. A reversal of the jurisdictional order is not required when substantial evidence supports the other allegations. (In re Tracy Z. (1987) 195 Cal.App.3d 107, 112-113.)

III

Dispositional

G. challenges the sufficiency of the evidence to support the court's dispositional order. Section 361 is clear and specific: Even though a child may be a dependent of the juvenile court, he or she shall not be removed from the home unless there is "clear and convincing evidence" of a substantial danger to the child's physical health, safety, protection, or physical or emotional well-being and there are no reasonable means to protect the child's physical health without removing the child from parental custody. (§ 361, subd. (c)(1); Cal. Rules of Court, rule 1456(c); In re Henry V. (2004) 119 Cal.App.4th 522, 528; In re Jasmine G. (2000) 82 Cal.App.4th 282, 288.) At the dispositional hearing, there is a statutory presumption the child will be returned to parental custody. (In re Marilyn H. (1993) 5 Cal.4th 295, 308.)

If the child is to be removed from the home, the burden of proof is substantially greater than at the jurisdictional hearing. (Compare § 361, subd. (c)(1) with § 355, subd. (a); In re Henry V., supra, 119 Cal.App.4th at p. 528.) "Clear and convincing evidence requires a high probability, such that the evidence is so clear as to leave no substantial doubt." (In re Luke M. (2003) 107 Cal.App.4th 1412, 1426.) The heavier burden of proof is intended to protect the fundamental right of a parent to retain custody of a child. Section 361 was intended to allow a court to remove a child from parental custody only in extreme cases of abuse or neglect. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1656; In re Basilio T. (1992) 4 Cal.App.4th 155, 171; In re James T. (1987) 190 Cal.App.3d 58, 65.) Despite the heightened burden of proof required for removal at disposition, "[w]e employ the substantial evidence test, however bearing in mind the heightened burden of proof." (In re Kristin H., supra, 46 Cal.App.4th at p. 1654; In re Victoria M. (1989) 207 Cal.App.3d 1317, 1326.)

There is a close overlap between a finding of jurisdiction based on a substantial risk of serious physical harm under section 300, subdivision (b) and a removal finding at disposition based on a substantial danger to the physical health, safety and protection of the child under section 361, subdivision (c)(1). (In re Rocco M., supra, 1 Cal.App.4th at p. 826.) For the reasons stated earlier in this opinion, sufficient evidence supports the court's finding there would be a substantial danger to Maya's physical health, safety and protection if she were returned home. This finding, however, did not relieve the court of its responsibility to consider reasonable alternatives to protect the child's physical health before removing Maya from her home. (§ 361, subd. (c)(1).)

The court stated the primary reason for Maya's continued detention was its uncertainty about the status of G.'s mental health. The court's concerns were based on anecdotal but substantial evidence of G.'s deteriorating condition in February and March 2005. The court wanted G. to undergo a psychological evaluation. Once G. showed she was stable and doing well, the court would then reconsider its order for out-of-home placement and "discuss at that point whether it was safe" to allow Maya to return home.

The court adopted the recommendations in the Agency's April 26, 2005 report and made it the order of the court. The Agency opined there were no reasonable means to protect Maya without removing her from G.'s care because G. did not comply with any voluntary services and did not meet Maya's medical needs:

"The mother was provided with services from the Regional Center [SDRC], African Alliance, a Public Health Nurse, APS [Adult Protective Services] and our Agency and she has failed to follow through with any of the services provided and/or arranged for her and her daughter. If left in the home, Maya is at further risk of neglect due to her diagnosis of Autism. Maya needs to be in her services with the Regional Center and her mother has failed to follow through with these services. At this time the mother cannot meet Maya's medical needs. Maya needs the protection of the Juvenile Court until the mother can stabilize herself, her health and can assure that Maya's medical needs are being met."

Contrary to the Agency's assertions, Maya did not have any unmet medical needs and she was not autistic. The author of the report, social worker Garcia, admitted the statement concerning G.’s cooperation with services was not completely accurate. Garcia did not believe G. would cooperate with court-ordered services because G. accused her of hitting and kicking Maya at the detention hearing and refused to speak with her. Garcia gave G. English-language referrals for parenting classes, housing assistance, food and clothing, medical care and therapy and a "psych" evaluation. She did not know whether G. followed through with the referrals. Garcia was not aware until the date of her testimony that G. sought and obtained medical treatment.

Substantial evidence must be reasonable in nature, credible, and of solid value. (DiMartino v. City of Orinda, supra, 80 Cal.App.4th at p. 336.) By the time of the disposition hearing, the Agency's assertions regarding Maya's condition and G.'s lack of cooperation were questionable. The Agency's recommendation for continued detention was fashioned without inquiring about G.’s compliance with referrals and without knowing the status of her medical condition. In view of these deficiencies, the Agency's assessment did not constitute substantial evidence on which the court could justify Maya's continued detention outside the home.

When fashioning a dispositional order, the parent's response to the conditions that gave rise to juvenile court intervention is an important factor for the court to consider. (See In re Esmeralda B. (1992) 11 Cal.App.4th 1036, 1043-1044.) Here, the conditions in the home creating a risk to Maya's physical health at disposition were substantially different than they were at the time of the detention hearing.

Although conditions in the home were poor on February 23, 2005, on subsequent visits (including a visit two days later), social workers found improved living conditions and an adequate food supply. Despite her distrust of social workers, G. never denied them access to her home. After February 2005, Maya's only documented school absence was on March 17, 2005, a half-day. G. accepted services from African Alliance, SDRC and APS.

After Maya was detained, G. was reluctant to work with the Agency. However, she sought out Dilkhwaz Ahmet, a program coordinator at a refugee aid organization, and met with her approximately 12 times in April and May 2005. Ahmet, a witness the court found impressive, said G. was receptive to services and tried to locate an Arabic language parenting class.

After a psychiatric assessment, G. was diagnosed with a depressive disorder and treated for diabetes. G. sought and obtained weekly therapy with Dr. Wokocha, a court-approved psychologist. Dr. Wokocha opined G. was not psychotic, did not have any serious mental health problems, and that, with in-home services, Maya could be returned home. Khawla Suleiman, M.D., Maya's pediatrician, believed G. was concerned about Maya and wanted her to progress normally. Ahmet saw G. three or four times a week in April and May 2005. Even though G. was distraught about Maya's removal, Ahmet did not see any signs of unusual behavior. Ahmet described G. as nice, kind and prompt. There was no substantial evidence to show G.'s condition had not stabilized.

In addition to G.'s ongoing health services, the record shows other reasonable means are available to protect Maya in the home. These include assistance to alleviate the family's financial and social stressors, transportation, particularly with getting Maya to school, in-home support, respite care, training for parents of exceptional children and the assistance of an IEP advocate. In addition, the court recognized G. would benefit from working with a culturally sensitive social worker with whom she could develop a trusting relationship. G. told the court she would cooperate with reunification services "on my head" which the court interpreted to mean "in a heartbeat."

The child's reaction to removal may also be properly considered by the court. (In re Jamie M. (1982) 134 Cal.App.3d 530, 540; Kimberly R. v. Superior Court (2002) 96 Cal.App.4th 1067, 1079.) "Often the harm created by removing a child from its parents may be more serious than the harm which the state intervention seeks to prevent." (In re Jamie M., supra, 134 Cal.App.3d at p. 541.) Here, Maya's reaction to detention was extreme and subsequent changes in her placement were also traumatic.^{^[4]} As a result, it appears she missed several weeks of school. In deciding whether to remove a child, a court must balance the risk of harm caused by removal with the risk of physical harm in continued parental custody. (Ibid.) Here, the evidence weighed in favor of returning Maya to G. Dr. Wokocha and Dr. Suleiman,^{^[5]} who had worked with and treated G. between the detention and disposition hearings, recommended Maya be returned to G.'s care with protective services.^{^[6]} Although the court wanted G. to receive a psychological evaluation before it considered whether it was safe to return Maya, "[h]arm to the child cannot be presumed from the mere fact of mental illness of the parent." (In re Kristin H., supra, 46 Cal.App.4th at p. 1652; In re Jamie M., supra, 134 Cal.App.3d at p. 541.) Instead, the burden is on the Agency to prove by clear and convincing evidence there is a substantial danger to the child if returned home, not on the parent to prove he or she is fit. (§ 361.) Because the Agency's recommendations were based largely on outdated and some admittedly inaccurate information, we cannot find substantial evidence to support a finding the Agency met its burden in this matter. (In re Luke M., supra, 107 Cal.App.4th at p. 1426.) "In all too many cases, the risks involved in returning a child to parental custody at the dispositional phases are clearly established. When they are not, as in this case, the juvenile court must recognize the legal restraints against separating parent and child." (In re Henry V., supra, 119 Cal.App.4th at p. 531.)

DISPOSITION

The jurisdictional order is affirmed. The order on disposition is reversed and the matter is remanded for a new disposition hearing.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

IRION, J.

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^{^[1]} All statutory references are to the Welfare and Institutions Code unless otherwise specified.

^{^[2]} G. reported Maya's father is James K., a Sudanese she met in Lebanon. They were never married and he left her when she became pregnant. G. had no contact with him since arriving in the United States. Due to what the social worker termed insufficient information, the Agency did not conduct a search. The court ordered the Agency to contact the Sudan consulate. The father is not a party to the appeal and the record does not reflect whether efforts to locate him were successful.

^{^[3]} Information about Maya's hospitalization is absent from the reports.

^{^[4]} The Agency argued that Maya should not be returned to G.'s care because if conditions deteriorated and removal was required, it would be "even more devastating" to Maya. Section 361 establishes that "out-of-home placement is not a proper means of hedging against the possibility of failed reunification efforts, or of securing parental cooperation with those efforts." (In re Henry V., supra, 119 Cal.App.4th at p. 525.)

^{^[5]} Both Dr. Suleiman and Dr. Wokocha spoke Arabic and were sensitive to cross-cultural issues affecting African refugees. They each had known and treated Maya and G. for several years.

^{^[6]} Garcia was aware of Dr. Wokocha's recommendation but did not include it in the report.

P. v. Johnson

2005-12-02T13:36:00.000-08:00

Filed 12/1/05 P. v. Johnson CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

DANIEL JOHNSON,

Defendant and Appellant.

C050079

(Super. Ct. No. 04F09036)

Defendant Daniel Johnson pled no contest to possessing marijuana in prison (Pen. Code, § 4573.6) and admitted he had suffered one prior serious felony conviction that qualified as a strike (Pen. Code, §§ 667, 1170.12). The court sentenced him to the low term of two years in prison, which it doubled to four years because of the strike, and ordered him to pay a $1,000 restitution fine (Pen. Code, § 1202.4) and a $1,000 parole revocation fine (Pen. Code, § 1202.45).

Defendant appeals. His certificate of probable cause was denied. We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no supplemental brief from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

DISPOSITION

The judgment is affirmed.

SIMS , Acting P.J.

We concur:

RAYE , J.

BUTZ , J.

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Moseley v. Gilfillian

2005-12-02T13:35:00.000-08:00

Filed 12/1/05 Moseley v. Gilfillian CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(El Dorado)

----

FELICIA MOSELEY,

Plaintiff and Appellant,

JAMES GILFILLIAN et al.,

Defendants and Respondents.

C048635

(Super. Ct. No. PC20030175)

Thomas Moseley, the son of plaintiff Felicia Moseley,^{^[1]} died after his motorcycle was struck by a truck driven by Mark Dawson. Plaintiff filed a complaint for wrongful death and personal injuries against Dawson. She later joined as defendants James Gilfillian doing business as Nu Star Motors and Nu Star Motors, Inc., alleging that the accident occurred while Dawson was acting within the course and scope of his employment.^{^[2]}

The employer defendants moved for summary judgment, alleging that Dawson was “engaged in his ordinary commute to and from work and was on a personal errand when the accident occurred.”

The trial court granted the employer defendants’ motion and entered judgment against plaintiff, finding Dawson was not acting within the course and scope of his employment and was not on a special errand for defendants when the accident occurred because he was “engaged in the goings and comings from his employment at the end of the workday at the ranch.”

Plaintiff appeals, claiming the trial court erred in granting summary judgment because a triable issue of material fact exists as to whether Dawson was acting within the course and scope of his employment when he made the trip to retrieve the dealership’s keys, during which time the accident occurred. We agree and shall reverse the judgment.

Factual History^{^[3]}

James Gilfillian is the chief executive officer of That’s No Bull, Inc., a company doing business as Nu Star Motors. At the time of the accident, Mark Dawson was employed by Nu Star Motors as a salaried assistant repair shop manager. One of Dawson’s “activities” was keeping possession and control of the keys to the dealership shops and sales locations.

On August 22, 2002, Dawson and fellow Nu Star Motors employees Geoffrey Wood, Mike Polete, and Greg Buchanan were working at a horse ranch in Pleasant Valley owned by Gilfillian. Dawson’s salary from Nu Star Motors covered his work at the ranch.

At lunchtime, Dawson and Polete left the ranch in Polete’s car to get a meal and supplies at a hardware store. Dawson left his key ring, which contained keys to all the Nu Star Motors dealerships, in Polete’s car.

When Dawson finished work at 5:55 p.m., he headed home in his truck. On the road, he realized he did not have his key ring. Dawson felt it necessary to retrieve the keys because he was in a position of responsibility with respect to the keys. He drove toward Nu Star Motors’ repair shop in Shingle Springs, as Polete was the night watchman there and was living in the lower section of the repair shop property. As Dawson was preparing to turn left into a driveway for Nu Star Motors, he heard the engine noise of a motorcycle and then felt the impact of a collision. The driver of the motorcycle, Thomas Moseley, was taken to the hospital and died as a result of his injuries.

Standard of Review

As this court succinctly described, “Summary judgment is properly granted if there is no question of fact and the moving party is entitled to judgment as a matter of law. [Citations.] We construe the moving party’s papers strictly and the opposing party’s papers liberally. [Citation.] The moving party must demonstrate that under no hypothesis is there a material factual issue requiring a trial, whereupon the burden of persuasion shifts to the opposing party to show, by responsive statement and admissible evidence, that triable issues of fact exist. [Citations.]

“However, ‘[f]rom commencement to conclusion, the moving party bears the burden of persuasion that there is no genuine issue of material fact and that [it] is entitled to judgment as a matter of law. . . . There is a genuine issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.’ [Citation.] On appeal, we exercise our independent judgment to determine whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law.” (Thousand Trails, Inc. v. California Reclamation Dist. No. 17 (2004) 124 Cal.App.4th 450, 457; accord, Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843-857.)

Discussion

“Under the doctrine of respondeat superior, an employer is liable for the torts of his employees committed within the scope of their employment.” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 721.) “The burden of proof is on the plaintiff to demonstrate that the negligent act was committed within the scope of employment.” (Ibid.) An employee acts within the scope of his employment when he engages in activities incident to his duties or when his misconduct could have been reasonably foreseen by the employer. (Martinez v. Hagopian (1986) 182 Cal.App.3d 1223, 1228.)

Under the “going and coming” rule, an employee going to and coming home from work is “ordinarily considered outside the scope of employment so that the employer is not liable for his torts.” (Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 961.) Under the “‘special errand’” exception to the going and coming rule, however, “If the employee is not simply on his way from his home to his normal place of work or returning from said place to his home for his own purpose, but is coming from his home or returning to it on a special errand either as part of his regular duties or at a specific order or request of his employer, the employee is considered to be in the scope of his employment from the time that he starts on the errand until he has returned or until he deviates therefrom for personal reasons. [Citations.]” (Boynton v. McKales (1956) 139 Cal.App.2d 777, 789.)

Here, the trial court found plaintiff failed to establish a triable issue of material fact regarding whether Dawson was acting within the course and scope of his employment when he was on his way to retrieve the keys because “[t]he evidence presented show[ed] that Dawson was covered by the going[]and[]coming rule.”

We cannot agree with the trial court’s conclusion because the evidence, viewed in the light most favorable to plaintiff, raises a triable issue of fact regarding whether Dawson was on a special errand as part of his regular duties. It is true, as the trial court noted, that Dawson had finished work when he left the ranch to drive home. But it is reasonable to infer from the evidence that part of Dawson’s regular duties was securing the keys to the dealerships. At his deposition, Dawson testified that one of his “activities” as assistant repair shop manager was “keeping possession and control of [the] keys to the dealership shops and sales locations.” He further testified that he felt it necessary to retrieve his key ring, which contained keys to all the Nu Star Motors dealerships, from Polete’s vehicle because of “the position of responsibility [Dawson was] in.” Moreover, he thought it was not “very responsible to have [the keys] in other people’s possession.” Therefore, as a “conscientious employee,” he went to retrieve the keys from Polete, who was living in the lower section of Nu Star Motors’ repair shop property. Based on this evidence, a jury could reasonably determine Dawson was acting within the course and scope of his employment when he went to retrieve the keys.

Furthermore, it is immaterial that the employer defendants had not asked or ordered Dawson to retrieve the keys, a point which defendants raise on appeal. The special errand exception applies when an employee acts either as part of his regular duties or at the specific order or request of his employer. (Munyon v. Ole's, Inc. (1982) 136 Cal.App.3d 697, 703.)

Finally, contrary to defendants’ argument both in the trial court and on appeal, it would not be “unusual, startling, and unfair to place the burden on [the employer defendants] for the accident in this case” under the doctrine of respondeat superior. “One way to determine whether a risk is inherent in, or created by, an enterprise is to ask whether the actual occurrence was a generally foreseeable consequence of the activity.” (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618.) Foreseeability in this context is distinguished from foreseeability as a test for negligence; “‘foreseeability’ as a test for respondeat superior merely means that in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business. [Citations.]” (Id. at p. 619, italics omitted.)

Applying these principles, we conclude it would not be “unusual, startling, and unfair” to include the loss resulting from Dawson’s conduct among the other costs of the employer defendants’ business. A jury could reasonably determine it was foreseeable that, when an assistant repair shop manager such as Dawson was entrusted with the responsibility of keeping possession and control of the businesses’ keys and those keys were inadvertently misplaced, such an employee would attempt to retrieve those keys.

Disposition

The judgment is reversed. Plaintiff shall recover her costs on appeal. (Cal. Rules of Court, rule 27(a)(1).)

DAVIS , J.

We concur:

SCOTLAND , P.J.

SIMS , J.

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^{^[1]} Felicia Moseley sued in the trial court both individually and “as Successor in Interest to Thomas Moseley, deceased.” For clarification, we will refer to her as plaintiff in this opinion.

^{^[2]} Defendants responded to plaintiff’s complaint as “James [Gilfillian] and That’s No Bull, Inc., dba Nu Star Motors, improperly sued and served as James Gilfillan dba Nustar Motors, and Nustar Motors Incorporated.” These defendants shall be collectively referred to as “the employer defendants.”

^{^[3]} In reviewing the propriety of the summary judgment, we state the facts in the light most favorable to the party opposing the motion, i.e., plaintiff. (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 633, fn. 1.)

P. v. Nelson

2005-12-02T13:34:00.000-08:00

Filed 11/30/05 P. v. Nelson CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

THE PEOPLE,

Plaintiff and Respondent,

DONALD RAY NELSON,

Defendant and Appellant.

C048496

(Super. Ct. No. CM014706)

In February 2001, defendant Donald Ray Nelson was granted probation after he pleaded no contest to corporal injury on a co-habitant. (Pen. Code, § 273.5, subd. (a); further unspecified section references are to the Penal Code.) As a condition of probation, he was ordered to pay a $200 restitution fine. (§ 1202.4.)

After defendant violated probation three times, the court terminated his probation and sentenced him to the upper term of four years in prison and ordered him to pay a $200 restitution fine (§ 1202.4).

Defendant appeals, contending the court erred in (1) imposing the upper term in violation of his federal constitutional rights under Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403]; and (2) imposing a second restitution fine. We affirm the judgment.

DISCUSSION

Blakely

Defendant contends the trial court erred in imposing the upper term because it relied upon facts not submitted to the jury and proved beyond a reasonable doubt, thereby violating the principles enunciated in Blakely v. Washington, supra, 542 U.S. 296 [159 L.Ed.2d 403]. The California Supreme Court rejected the identical claim in People v. Black (2005) 35 Cal.4th 1238, and we are bound by that decision. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Restitution Fine

Citing People v. Chambers (1998) 65 Cal.App.4th 819 (Chambers), defendant contends the trial court erred in imposing a second $200 restitution fine when it sentenced him to prison following revocation of probation. Although defendant did not object to imposition of the restitution fine at sentencing, the question whether the court exceeded its statutory authority is properly before us in this appeal. (Id. at p. 823.)

In Chambers, the trial court imposed a $200 restitution fine under section 1202.4, subdivision (b), when it granted probation, and imposed a $500 restitution fine under the same section when it revoked probation and sentenced Chambers to prison. (Chambers, supra, 65 Cal.App.4th at p. 821.) On appeal, we held that “a restitution fine imposed at the time probation is granted survives the revocation of probation.” (Id. at p. 820.) Because the second restitution fine was unauthorized, we modified the judgment by striking the second restitution fine. (Id. at p. 821.)

In this case, however, there is nothing to indicate the court imposed a “second restitution fine” as defendant claims. At sentencing, the court stated, “The court will order that he pay a restitution fine, per 1202.4 (b), in the amount of $200 . . . .” We interpret the court’s statement to mean that defendant is ordered to pay the $200 restitution fine that was initially imposed when probation was granted and not an additional $200 restitution fine.

DISPOSITION

The judgment is affirmed.

BLEASE , Acting P. J.

We concur:

HULL , J.

CANTIL-SAKAUYE , J.

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