Former Los Angeles Superior Court Local Rule 7.5(f), requiring that a peremptory challenge to the original trial judge after reversal on appeal must be made within 60 days of the date of issuance of the remittitur, is void, said the Second District Court of Appeal in Ghaffarpour v. Superior Court (Jan. 27, 2012, B234097), __ Cal.App.4th __ [2012 DJDAR 1107].
Plaintiff appealed from the court's denial of his motion to correct the court record to show that his complaint was filed on June 11, 2007, rather than August 14, 2007. The court of appeal reversed the judgment and remanded for further proceedings. The remittitur issued on August 26, 2010. The Superior Court did nothing.
On June 3, 2011, plaintiff's counsel contacted the court and was told that the case would be returned to the last assigned judge (Judge Stern), as specified by former Local Rule 7.5(f) (now renumbered as Rule 2.5(c) of the Local Rules). Plaintiff's motion to disqualify Judge Stern was denied, on the ground that Rule 7.5(f) stated that the 60 day period in which to disqualify the original trial judge begins to run from the date of issuance of the remittitur.
The court of appeal granted plaintiff's petition for a writ of mandate. A local rule may not conflict with a statute, and Code of Civil Procedure §170.6, subd. (a)(2), provides that the time to file a peremptory challenge to the original judge after remand is 60 days after notice of the assignment. Plaintiff did not receive notice that the case was assigned to Judge Stern until his counsel inquired on June 3, and his challenge was timely.
The appellate court disagreed with the contention that plaintiff was on notice as of the date of the remittitur, since former Rule 7.5(f) stated that after remand a case will be returned to the last assigned judge. This "notice" was insufficient, said the court, because the presiding judge has the discretion to override the local rule. Given the authority of the presiding judge to reassign cases for a multitude of reasons, parties and their counsel cannot be sure than the general policy set forth in the rule will be followed, and further notice is required.
Sunday, February 26, 2012
Thursday, February 23, 2012
Review Granted in People v. Davis
The California Supreme Court has granted review in People v. Davis (S198061). The court of appeal had held that it was not a violation of the Confrontation Clause to admit the assault victim's hospital records, as well as the testimony of a treating physician as to the content of these records, because the records were prepared in the course of the hospital's treatment of the patient and were not "testimonial." Whether the preparers of the records were aware that their statements may be used in subsequent criminal proceedings was irrelevant, said the court. See "If He Can Read What They Wrote," posted Nov. 6, 2011.
Monday, February 20, 2012
You Asked For It
In Transport Insurance Co. v. TIG Insurance Co. (Jan. 13, 2012, A122573), __ Cal.App.4th __ [2012 DJDAR 587] the appellant was estopped from asserting that the court erroneously instructed the jury on the statute of limitations because it agreed to the instruction at trial.
Transport sued TIG and Seaton Insurance Company for failing to pay on reinsurance contracts. Transport moved for summary adjudication on the affirmative defense that the claims were barred by the statute of limitations, asserting that the statute was tolled during the time an insurer is investigating a first party insurance claim. The trial court, however, concluded that a reinsurance cause of action accrues either 1) when the reinsurer denies a covered claim or 2) when the reinsurer takes an unreasonable amount of time to communicate its coverage decision. The court found a triable issue of fact on this question and denied the motion.
At trial the parties presented a jury instruction tracking the court's ruling. TIG offered an alternative instruction. Transport "vigorously" argued that the agreed-upon instruction be given, and the court concurred. In its special verdict, the jury found that Transport did not file its lawsuit timely and judgment was entered for defendants.
On appeal, Transport argued that the jury instruction was erroneous, but the appellate court found that the claim was barred by the invited error doctrine. By insisting that the instruction be given, Transport could not contend that it misstated the law. The court of appeal acknowledged that the invited doctrine error doctrine does not apply when a party acquiesces in an erroneous judicial determination, in order to make the best of a bad situation, but that was not the case here, it said. Although the trial court had ruled previously on the question of when the cause of action accrued, the ruling made in connection with the summary adjudication motion was not binding at trial and could be revisited by the court. Transport did not suggest that the court reconsider its earlier ruling, did not object to the instruction, and could not complain on appeal.
Transport sued TIG and Seaton Insurance Company for failing to pay on reinsurance contracts. Transport moved for summary adjudication on the affirmative defense that the claims were barred by the statute of limitations, asserting that the statute was tolled during the time an insurer is investigating a first party insurance claim. The trial court, however, concluded that a reinsurance cause of action accrues either 1) when the reinsurer denies a covered claim or 2) when the reinsurer takes an unreasonable amount of time to communicate its coverage decision. The court found a triable issue of fact on this question and denied the motion.
At trial the parties presented a jury instruction tracking the court's ruling. TIG offered an alternative instruction. Transport "vigorously" argued that the agreed-upon instruction be given, and the court concurred. In its special verdict, the jury found that Transport did not file its lawsuit timely and judgment was entered for defendants.
On appeal, Transport argued that the jury instruction was erroneous, but the appellate court found that the claim was barred by the invited error doctrine. By insisting that the instruction be given, Transport could not contend that it misstated the law. The court of appeal acknowledged that the invited doctrine error doctrine does not apply when a party acquiesces in an erroneous judicial determination, in order to make the best of a bad situation, but that was not the case here, it said. Although the trial court had ruled previously on the question of when the cause of action accrued, the ruling made in connection with the summary adjudication motion was not binding at trial and could be revisited by the court. Transport did not suggest that the court reconsider its earlier ruling, did not object to the instruction, and could not complain on appeal.
Thursday, February 16, 2012
Now Full-Length and Uncut
Introduction of the entire 25-minute child pornography video found on defendant's computer hard drive was not error when defendant failed to offer any reasonable alternative that would reduce the prejudicial effect, said the Third District Court of Appeal in People v. Holford (Jan. 10, 2012, C063540), __ Cal.App.4th __ [2012 DJDAR 307].
During a parole search, officers discovered a video depicting a young girl engaged in sexual activities. At defendant's trial for possession of child pornography, defendant offered to stipulate that the video contained sexual acts performed by a person who appeared to be under 18. Defendant did not offer to stipulate that he knew he was in possession of the video or that he knew the video contained child pornography.
It was not error to admit the entire video, said the appellate court. First, the defendant forfeited his right to argue that only excerpts of the video should have been admitted because although his counsel suggested that an abridged version could be used, she did not make any suggestion as to what specific excerpts could be played. The court of appeal held that when making an objection under Evidence Code §352 grounded upon the existence of an evidentiary alternative, a party must identify this alternative with specificity.
Second, the trial court properly balanced the probative value and prejudicial effect of the video. The probative value was high, since the video was the crime itself, and the evidence was relevant to prove not only that it contained child pornography, but also that defendant knowingly possessed the video.
The court of appeal criticized the trial court for not reviewing the video, but noted that the court may rely on an offer of proof and there was no showing that the decision to admit the video would have been different had it been reviewed prior to its admission. To the contrary, the trial court remarked after the video was shown to the court and the jury that it was clear the video could not have been edited without distorting its nature.
During a parole search, officers discovered a video depicting a young girl engaged in sexual activities. At defendant's trial for possession of child pornography, defendant offered to stipulate that the video contained sexual acts performed by a person who appeared to be under 18. Defendant did not offer to stipulate that he knew he was in possession of the video or that he knew the video contained child pornography.
It was not error to admit the entire video, said the appellate court. First, the defendant forfeited his right to argue that only excerpts of the video should have been admitted because although his counsel suggested that an abridged version could be used, she did not make any suggestion as to what specific excerpts could be played. The court of appeal held that when making an objection under Evidence Code §352 grounded upon the existence of an evidentiary alternative, a party must identify this alternative with specificity.
Second, the trial court properly balanced the probative value and prejudicial effect of the video. The probative value was high, since the video was the crime itself, and the evidence was relevant to prove not only that it contained child pornography, but also that defendant knowingly possessed the video.
The court of appeal criticized the trial court for not reviewing the video, but noted that the court may rely on an offer of proof and there was no showing that the decision to admit the video would have been different had it been reviewed prior to its admission. To the contrary, the trial court remarked after the video was shown to the court and the jury that it was clear the video could not have been edited without distorting its nature.
Monday, February 13, 2012
Deal or No Deal?
[Note: Subsequent to this post the Supreme Court granted review. See, "Review Granted in Plea Bargain Case," posted Apr. 18, 2012.]
A trial court engages in prohibited plea bargaining if it offers to impose a specific sentence on the condition that the defendant plead guilty to all charges, or if it offers to allow the defendant to withdraw the plea if the court decides not to impose the indicated sentence, said the Sixth District Court of Appeal in People v. Clancey (Jan. 10, 2012, H036501) __ Cal.App.4th __ [2012 DJDAR 329].
Defendant was charged with a host of crimes, and it was alleged that he had a prior conviction that constituted a strike. The court told the defendant that if he pled guilty to all of the charges on the Early Resolution Calendar, the court would strike the strike allegation and sentence the defendant to five years in state prison. The court stated that its offer was based on what it knew about the circumstances of the case, and that if anything new came up, and the court decided to impose a different sentence, the defendant could withdraw his plea.
The court of appeal rejected defendant's contention that the court merely indicated a sentence and did not engage in plea bargaining. There are two principles that govern the difference between a judicial plea bargain and an indicated sentence, said the court. First, an offer that is contingent on a defendant pleading guilty is not a proper indicated sentence because it induces a defendant to plead guilty. "A proper indicated sentence is not premised on guilty or no contest pleas, but applies whether or not the defendant chooses to proceed to trial."
Second, an offer that allows the defendant to withdraw the plea if the court decides to impose a different sentence is not a proper indicated sentence. "A true indicated sentence is not a risk-free proposition for a defendant," said the court. An indicated sentence, it added, is a prediction, not a promise, and if the court changes its mind after learning something new, that is a risk that the defendant must take. By indicating the sentence that would be imposed on the condition that the defendant plead guilty, and agreeing that the plea could be withdrawn if the court decided that a different sentence was appropriate, the trial court engaged in prohibited plea bargaining and the judgment was reversed.
A trial court engages in prohibited plea bargaining if it offers to impose a specific sentence on the condition that the defendant plead guilty to all charges, or if it offers to allow the defendant to withdraw the plea if the court decides not to impose the indicated sentence, said the Sixth District Court of Appeal in People v. Clancey (Jan. 10, 2012, H036501) __ Cal.App.4th __ [2012 DJDAR 329].
Defendant was charged with a host of crimes, and it was alleged that he had a prior conviction that constituted a strike. The court told the defendant that if he pled guilty to all of the charges on the Early Resolution Calendar, the court would strike the strike allegation and sentence the defendant to five years in state prison. The court stated that its offer was based on what it knew about the circumstances of the case, and that if anything new came up, and the court decided to impose a different sentence, the defendant could withdraw his plea.
The court of appeal rejected defendant's contention that the court merely indicated a sentence and did not engage in plea bargaining. There are two principles that govern the difference between a judicial plea bargain and an indicated sentence, said the court. First, an offer that is contingent on a defendant pleading guilty is not a proper indicated sentence because it induces a defendant to plead guilty. "A proper indicated sentence is not premised on guilty or no contest pleas, but applies whether or not the defendant chooses to proceed to trial."
Second, an offer that allows the defendant to withdraw the plea if the court decides to impose a different sentence is not a proper indicated sentence. "A true indicated sentence is not a risk-free proposition for a defendant," said the court. An indicated sentence, it added, is a prediction, not a promise, and if the court changes its mind after learning something new, that is a risk that the defendant must take. By indicating the sentence that would be imposed on the condition that the defendant plead guilty, and agreeing that the plea could be withdrawn if the court decided that a different sentence was appropriate, the trial court engaged in prohibited plea bargaining and the judgment was reversed.
Wednesday, February 8, 2012
Shades of Truth
[Note: Subsequent to this post the Supreme Court granted review. See, "Review Granted in People v. Archuleta," posted Apr. 11, 2012.]
The introduction of testimonial hearsay as a basis for an expert opinion is permissible, but the trial court should carefully consider whether the evidence should be excluded as more prejudicial than probative, said the Fourth District Court of Appeal in People v. Archuleta (Dec. 29, 2011, E049095), __ Cal.App.4th __ [2011 DJDAR 18637].
A gang expert testified that the defendant was a high-ranking member of a criminal street gang, based in part on statements made to investigators by another alleged gang member after that member had been arrested in an earlier case. The statements were "testimonial" and were inadmissible for the truth of the matters asserted under Crawford v. Washington (2004) 541 U.S. 36. But the statements were not admitted for their truth, but as a basis for the expert's opinion.
The court acknowledged that "it is often difficult if not practically or logically imposible for juries to disregard the truth of hearsay evidence when offered as basis evidence to expert opinion." On the one hand, the jury is instructed that it must decide whether the information on which the expert relied was true and accurate, but on the other hand it is told that it may not consider the information for its truth. But the appellate court concluded that it was bound by Supreme Court precedent establishing the legal distinction between the use of hearsay as substantive evidence and its use by expert witnesses.
In this case, the court was troubled by the fact that the basis evidence was testimonial evidence, which is of suspect reliability. After noting that all hearsay evidence offered as a basis for expert testimony is subject to analysis under Evidence Code §352, it stated that "had defense counsel challenged the admissibility of the statement under ... section 352, the fact it was testimonial and of suspect reliability would have constituted sufficient grounds for substantially redacting it or excluding it altogether." In this case counsel did not object on this ground and, even if he had, the error was harmless.
The court offered "guidelines for trial courts to follow" when there is an objection under §352. First, the court should carefully consider excluding the basis evidence entirely, given that the jury may not appreciate exactly how it is to use the evidence in its deliberations. A limiting instruction may be inadequate and, said the court, "it is especially doubtful that a limiting instruction will cure any prejudice resulting from the admission of a testimonial statement used as basis evidence." Second, the court must balance the expert's need to explain the basis of the opinion, the jury's need for information to evaluate the expert's opinion, the proponent's need to support the opinion, and the risk of prejudicial use of unreliable hearsay.
The introduction of testimonial hearsay as a basis for an expert opinion is permissible, but the trial court should carefully consider whether the evidence should be excluded as more prejudicial than probative, said the Fourth District Court of Appeal in People v. Archuleta (Dec. 29, 2011, E049095), __ Cal.App.4th __ [2011 DJDAR 18637].
A gang expert testified that the defendant was a high-ranking member of a criminal street gang, based in part on statements made to investigators by another alleged gang member after that member had been arrested in an earlier case. The statements were "testimonial" and were inadmissible for the truth of the matters asserted under Crawford v. Washington (2004) 541 U.S. 36. But the statements were not admitted for their truth, but as a basis for the expert's opinion.
The court acknowledged that "it is often difficult if not practically or logically imposible for juries to disregard the truth of hearsay evidence when offered as basis evidence to expert opinion." On the one hand, the jury is instructed that it must decide whether the information on which the expert relied was true and accurate, but on the other hand it is told that it may not consider the information for its truth. But the appellate court concluded that it was bound by Supreme Court precedent establishing the legal distinction between the use of hearsay as substantive evidence and its use by expert witnesses.
In this case, the court was troubled by the fact that the basis evidence was testimonial evidence, which is of suspect reliability. After noting that all hearsay evidence offered as a basis for expert testimony is subject to analysis under Evidence Code §352, it stated that "had defense counsel challenged the admissibility of the statement under ... section 352, the fact it was testimonial and of suspect reliability would have constituted sufficient grounds for substantially redacting it or excluding it altogether." In this case counsel did not object on this ground and, even if he had, the error was harmless.
The court offered "guidelines for trial courts to follow" when there is an objection under §352. First, the court should carefully consider excluding the basis evidence entirely, given that the jury may not appreciate exactly how it is to use the evidence in its deliberations. A limiting instruction may be inadequate and, said the court, "it is especially doubtful that a limiting instruction will cure any prejudice resulting from the admission of a testimonial statement used as basis evidence." Second, the court must balance the expert's need to explain the basis of the opinion, the jury's need for information to evaluate the expert's opinion, the proponent's need to support the opinion, and the risk of prejudicial use of unreliable hearsay.
Sunday, February 5, 2012
The Sounds of Silence
A defendant's post-arrest, post-Miranda silence may be admitted as an adoptive admission where the circumstances do not lend themselves to an inference that the defendant is relying on the right of silence guaranteed by the Fifth Amendment, said the Fourth District Court of Appeal in People v. Bowman (Dec. 23, 2011, D057467), __ Cal.App.4th __ [2011 DJDAR 18332].
Defendant was arrested for robbery and given his Miranda rights. The defendant did not assert his rights and answered some of the questions asked by the detective. He said nothing, however, in response to three questions put to him. The trial court allowed the prosecutor to introduce this evidence and the court instructed the jury as to the proper consideration of adoptive admissions.
Although the prosecution generally may not use a defendant's post-Miranda silence as evidence of guilt, this is true only when there is reason to believe that the failure to speak was induced by the Miranda warnings, said the appellate court. Here the defendant voluntarily spoke with the detective after receiving the warnings, and he never said that he wanted to cease further questioning, asked for an attorney or otherwise indicated he wanted to invoke his right to silence. Under these circumstances an accusatory statement and the fact of silence or equivocation may be offered as an implied admission of guilt.
Defendant was arrested for robbery and given his Miranda rights. The defendant did not assert his rights and answered some of the questions asked by the detective. He said nothing, however, in response to three questions put to him. The trial court allowed the prosecutor to introduce this evidence and the court instructed the jury as to the proper consideration of adoptive admissions.
Although the prosecution generally may not use a defendant's post-Miranda silence as evidence of guilt, this is true only when there is reason to believe that the failure to speak was induced by the Miranda warnings, said the appellate court. Here the defendant voluntarily spoke with the detective after receiving the warnings, and he never said that he wanted to cease further questioning, asked for an attorney or otherwise indicated he wanted to invoke his right to silence. Under these circumstances an accusatory statement and the fact of silence or equivocation may be offered as an implied admission of guilt.
Wednesday, February 1, 2012
It Ain't Me, Babe
The court properly admitted a MySpace page attributed to the defendant in People v. Valdez (Dec. 16, 2011, G041904), __ Cal.App.4th __ [2011 DJDAR 17984].
The prosecution offered a MySpace page which it contended belonged to the defendant. The page included a photograph of defendant making a gang sign, his gang moniker, other gang-related notations and an expression of such "interests" as "Mob[b]ing the streets and hustling, chilling with homies, and spending time with my mom." Defendant argued that the page was not sufficiently authenticated and was hearsay.
The court of appeal disagreed, finding that the prosecution met its burden of establishing that the page belonged to the defendant and that the content accurately depicted what it purported to show. Testimony established that the page was password protected and only a person with the password could upload content or manipulate images on the page. The photo of the "owner" of the page depicted defendant and other content suggested that the page belonged to him. Although defendant was free to argue that it was not his page, or that the contents had been manipulated by others, these arguments went to the weight of the evidence and not its admissibility.
The trial court instructed the jury that the page was not admitted for the truth of its content, but only to corroborate a witness' testimony that he recognized defendant from his photo on the MySpace page and as foundation for expert opinion testimony. The court of appeal presumed that the jury followed this instruction and found no violation of the hearsay rule.
The prosecution offered a MySpace page which it contended belonged to the defendant. The page included a photograph of defendant making a gang sign, his gang moniker, other gang-related notations and an expression of such "interests" as "Mob[b]ing the streets and hustling, chilling with homies, and spending time with my mom." Defendant argued that the page was not sufficiently authenticated and was hearsay.
The court of appeal disagreed, finding that the prosecution met its burden of establishing that the page belonged to the defendant and that the content accurately depicted what it purported to show. Testimony established that the page was password protected and only a person with the password could upload content or manipulate images on the page. The photo of the "owner" of the page depicted defendant and other content suggested that the page belonged to him. Although defendant was free to argue that it was not his page, or that the contents had been manipulated by others, these arguments went to the weight of the evidence and not its admissibility.
The trial court instructed the jury that the page was not admitted for the truth of its content, but only to corroborate a witness' testimony that he recognized defendant from his photo on the MySpace page and as foundation for expert opinion testimony. The court of appeal presumed that the jury followed this instruction and found no violation of the hearsay rule.
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