CA Pub. Decisions

Where defendant performed sex acts on developmentally disabled woman, there was sufficient evidence that at the time and under the circumstances her mental impairment--exemplified by an inability to cook, use a bus, handle money, or hold down a real job--and particularly her impaired understanding of the sex acts involved, including ignorance as to what intercourse was, rendered her incapable of giving legal consent to sexual acts with defendant. Penal Code Secs. 288a(d) and 289(b), which requires that the victim be "incapable...of giving legal consent" and also that "this is known or reasonably should be known to the person committing the act...," are not unconstitutionally vague for lacking requirement that victim was so "grossly disabled" as to be "unable to make choices of any kind."

Where defendant performed sex acts on developmentally disabled woman, there was sufficient evidence that at the time and under the circumstances her mental impairment--exemplified by an inability to cook, use a bus, handle money, or hold down a real job--and particularly her impaired understanding of the sex acts involved, including ignorance as to what intercourse was, rendered her incapable of giving legal consent to sexual acts with defendant. Penal Code Secs. 288a(d) and 289(b), which requires that the victim be "incapable...of giving legal consent" and also that "this is known or reasonably should be known to the person committing the act...," are not unconstitutionally vague for lacking requirement that victim was so "grossly disabled" as to be "unable to make choices of any kind."

Failure of defense counsel to object to shackling of defendant prison inmate and to requirement that he wear prison garb at trial constituted ineffective assistance where no claim was made that shackling was necessary. The fact that the jury would inevitably have discovered that Defendant was a state prisoner did not render wearing of prison garb non-prejudicial, since such clothing emphasized defendant's custodial status. Shackling was prejudicial where it prevented defendant from taking notes during testimony and distracted him, particularly since evidence of his guilt was less than overwhelming, and prejudice was not cured by cautionary instruction.
An order was issued to show cause returnable before the superior court directing the Attorney General to show cause why defendant's remaining convictions for transportingcontrolled substances should not be reversed due to ineffective assistance of counsel based on counsel's failure to object to the shackles and prison garb.

Failure of defense counsel to object to shackling of defendant prison inmate and to requirement that he wear prison garb at trial constituted ineffective assistance where no claim was made that shackling was necessary. The fact that the jury would inevitably have discovered that Defendant was a state prisoner did not render wearing of prison garb non-prejudicial, since such clothing emphasized defendant's custodial status. Shackling was prejudicial where it prevented defendant from taking notes during testimony and distracted him, particularly since evidence of his guilt was less than overwhelming, and prejudice was not cured by cautionary instruction.
An order was issued to show cause returnable before the superior court directing the Attorney General to show cause why defendant's remaining convictions for transportingcontrolled substances should not be reversed due to ineffective assistance of counsel based on counsel's failure to object to the shackles and prison garb.

Statutory penalties recoverable by an employee prior to adoption of Labor Code Private Attorneys General Act are not subject to act's exhaustion of administrative remedies requirements. The essential issue presented is whether the trial court properly struck Petitioner's claims for statutory penalties on the ground he failed to exhaust his administrative remedies in accordance with the Labor Code Private Attorneys General Act of 2004. Trial court errored. Court granted the relief requested.

A decision regarding claims for wrongful termination based on pregnancy and mental disability discrimination and the denial of pregnancy disability and family medical leave. Defendant mistankenly terminated Plaintiff too early and offered a reinstatement. The trial court found that the offer of reinstatement cured the termination and that Plaintiff had received all of the leave to which she was legally entitled and granted summary judgment in Defendant's favor. Court Affirms.

A criminal law decision regarding discharging a firearm in a grossly negligent manner, during which defendant used a firearm, assault with a firearm, possession of a firearm by an ex-felon and possession of ammunition by an ex-felon. Defendant appeals sentence. Judgment Affirmed.

A decision regarding insurance billing fraud.

A criminal law decision regarding conviction of burglary and grand theft and acquittal of two counts of petty theft. Reversed and Remanded.

Court correctly denied cross-defendant's anti-SLAPP motion on the ground that the cross-complainant had established the probability of prevailing on each of its claims. Each claim was premised on cross-defendant's breach of letter agreement wherein cross-defendant waived any right to protest the establishment or reopening of a car dealership in a particular geographic region. There could be no dispute that cross-defendant breached the letter agreement by filing protests after expressly agreeing for valuable consideration not to do so.

Court's imposition of multiple firearm enhancements pursuant to Penal Code Sec. 12022.5(a)(1) and 12022.53(b) and (c) in addition to firearm enhancement already imposed on defendant's life sentence was clearly improper under Sec. 12022.53(f)--which provides that where multiple sentencing enhancements are found true, court must impose only enhancement with longest term of imprisonment. Court was required to strike superfluous lesser enhancement findings, not impose, and then stay additional enhancements.

Court's imposition of multiple firearm enhancements pursuant to Penal Code Sec. 12022.5(a)(1) and 12022.53(b) and (c) in addition to firearm enhancement already imposed on defendant's life sentence was clearly improper under Sec. 12022.53(f)--which provides that where multiple sentencing enhancements are found true, court must impose only enhancement with longest term of imprisonment. Court was required to strike superfluous lesser enhancement findings, not impose, and then stay additional enhancements.

Trial court erred in enhancing defendant's DUI sentence under Vehicle Code Sec. 23540 based on his prior out-of-state conviction for "driving while ability impaired." Defendant admitted the fact of the prior out-of-state conviction after jury convicted him of pending charges, but a record of the out-of-state conviction was never offered or admitted into evidence at trial so that the court could determine whether the conduct underlying the out-of-state conviction would have violated California's DUI standard.

Jury reasonably concluded that an endless chain scheme program offering members co-ownership interest in corporation in exchange for payments and for recruiting additional members amounted to illegal and fraudulent sale of securities. Members who bought into program testified that they believed they were investors and co-owners in corporation. These members, being poor, uneducated, and without power to influence corporation's management, relied on corporation's officers to manage their investments. The crime of filing false income tax returns is not part of a common scheme or plan to take property within meaning of Penal Code Sec. 12022.6(b), under which losses from common scheme may be aggregated for purposes of determining sentence enhancement.