CA Pub. Decisions

Venire member's marriage to a person of Mexican heritage did not make her a member of a cognizable group for purposes of the Wheeler/Batson rule barring race-based discrimination in jury selection. Crime scene photograph, offered to demonstrate that murder victim, a sheriff's deputy, was still alive after he was shot in the back of the head and his patrol car crashed, and then shot a second time in the neck, was not inflammatory where jury was only permitted to look at it while pathologist was testifying and referring to it. Witness's testimony that he asked defendant and another man which of them shot deputy, that the other man nodded toward defendant, and that defendant responded that shooting deputy would not have been necessary had he not been arrested and that he asked witness for money to buy clothes in order to facilitate escape was properly admitted as an adoptive admission, and any error in admitting the testimony would have been harmless because it was consistent with defendant's confession. For purposes of special circumstances of killing a peace officer engaged in lawful performance of his duties and murder to perfect escape from lawful custody, evidence supported finding that defendant--who was asleep in his vehicle when arrested--was under lawful arrest for public intoxication where he was found during early morning hours, in vehicle parked on a dirt shoulder adjacent to highway and well outside fence separating highway from private property, and property owner testified she had called police, less than an hour prior to arrest, because defendant was creating a disturbance and appeared to be "pretty drunk." Evidence that defendant was properly "booked," while essential to a conviction for the crime of escape, is not an element of the special circumstance of murder to perfect escape from lawful custody.

Venire member's marriage to a person of Mexican heritage did not make her a member of a cognizable group for purposes of the Wheeler/Batson rule barring race-based discrimination in jury selection. Crime scene photograph, offered to demonstrate that murder victim, a sheriff's deputy, was still alive after he was shot in the back of the head and his patrol car crashed, and then shot a second time in the neck, was not inflammatory where jury was only permitted to look at it while pathologist was testifying and referring to it. Witness's testimony that he asked defendant and another man which of them shot deputy, that the other man nodded toward defendant, and that defendant responded that shooting deputy would not have been necessary had he not been arrested and that he asked witness for money to buy clothes in order to facilitate escape was properly admitted as an adoptive admission, and any error in admitting the testimony would have been harmless because it was consistent with defendant's confession. For purposes of special circumstances of killing a peace officer engaged in lawful performance of his duties and murder to perfect escape from lawful custody, evidence supported finding that defendant--who was asleep in his vehicle when arrested--was under lawful arrest for public intoxication where he was found during early morning hours, in vehicle parked on a dirt shoulder adjacent to highway and well outside fence separating highway from private property, and property owner testified she had called police, less than an hour prior to arrest, because defendant was creating a disturbance and appeared to be "pretty drunk." Evidence that defendant was properly "booked," while essential to a conviction for the crime of escape, is not an element of the special circumstance of murder to perfect escape from lawful custody.

Venire member's marriage to a person of Mexican heritage did not make her a member of a cognizable group for purposes of the Wheeler/Batson rule barring race-based discrimination in jury selection. Crime scene photograph, offered to demonstrate that murder victim, a sheriff's deputy, was still alive after he was shot in the back of the head and his patrol car crashed, and then shot a second time in the neck, was not inflammatory where jury was only permitted to look at it while pathologist was testifying and referring to it. Witness's testimony that he asked defendant and another man which of them shot deputy, that the other man nodded toward defendant, and that defendant responded that shooting deputy would not have been necessary had he not been arrested and that he asked witness for money to buy clothes in order to facilitate escape was properly admitted as an adoptive admission, and any error in admitting the testimony would have been harmless because it was consistent with defendant's confession. For purposes of special circumstances of killing a peace officer engaged in lawful performance of his duties and murder to perfect escape from lawful custody, evidence supported finding that defendant--who was asleep in his vehicle when arrested--was under lawful arrest for public intoxication where he was found during early morning hours, in vehicle parked on a dirt shoulder adjacent to highway and well outside fence separating highway from private property, and property owner testified she had called police, less than an hour prior to arrest, because defendant was creating a disturbance and appeared to be "pretty drunk." Evidence that defendant was properly "booked," while essential to a conviction for the crime of escape, is not an element of the special circumstance of murder to perfect escape from lawful custody.

Venire member's marriage to a person of Mexican heritage did not make her a member of a cognizable group for purposes of the Wheeler/Batson rule barring race-based discrimination in jury selection. Crime scene photograph, offered to demonstrate that murder victim, a sheriff's deputy, was still alive after he was shot in the back of the head and his patrol car crashed, and then shot a second time in the neck, was not inflammatory where jury was only permitted to look at it while pathologist was testifying and referring to it. Witness's testimony that he asked defendant and another man which of them shot deputy, that the other man nodded toward defendant, and that defendant responded that shooting deputy would not have been necessary had he not been arrested and that he asked witness for money to buy clothes in order to facilitate escape was properly admitted as an adoptive admission, and any error in admitting the testimony would have been harmless because it was consistent with defendant's confession. For purposes of special circumstances of killing a peace officer engaged in lawful performance of his duties and murder to perfect escape from lawful custody, evidence supported finding that defendant--who was asleep in his vehicle when arrested--was under lawful arrest for public intoxication where he was found during early morning hours, in vehicle parked on a dirt shoulder adjacent to highway and well outside fence separating highway from private property, and property owner testified she had called police, less than an hour prior to arrest, because defendant was creating a disturbance and appeared to be "pretty drunk." Evidence that defendant was properly "booked," while essential to a conviction for the crime of escape, is not an element of the special circumstance of murder to perfect escape from lawful custody.

California law gives a defendant the right to make a personal statement in mitigation of punishment but only while under oath and subject to cross-examination by the prosecutor.

Appellate court must conduct comparative juror analysis, in which voir dire responses of non-stricken venire members are compared to those stricken by way of peremptory challenge, in order to determine whether race- or gender-neutral explanations for strikes were pretextual, when defendant relies on such evidence and the record is adequate to permit the comparisons. Comparative juror analysis must be performed, in the appropriate circumstances, on appeal even when such an analysis was not conducted in the trial court. Trial court's ruling that prosecutor's proffered reasons for peremptory challenge of African American venire member that she was upset when she received a traffic ticket and that a family member had been killed in a gang related murder was supported by substantial evidence because it was reasonable to infer that venire member had negative feelings toward law enforcement and that she might sympathize with defendant in a case involving gang members, where prosecutor had previously accepted panel with an African American venire member, and where examination of jury selection as a whole did not support claim of racial bias.

Appellate court must conduct comparative juror analysis, in which voir dire responses of non-stricken venire members are compared to those stricken by way of peremptory challenge, in order to determine whether race- or gender-neutral explanations for strikes were pretextual, when defendant relies on such evidence and the record is adequate to permit the comparisons. Comparative juror analysis must be performed, in the appropriate circumstances, on appeal even when such an analysis was not conducted in the trial court. Trial court's ruling that prosecutor's proffered reasons for peremptory challenge of African American venire member--that she was upset when she received a traffic ticket and that a family member had been killed in a gang-related murder--was supported by substantial evidence because it was reasonable to infer that venire member had negative feelings toward law enforcement and that she might sympathize with defendant in a case involving gang members, where prosecutor had previously accepted panel with an African American venire member, and where examination of jury selection as a whole did not support claim of racial bias.

Where plaintiff filed an association of counsel, but court clerk only served notice of entry of judgment and order denying motion for new trial on original counsel, and did not serve them on associated counsel, plaintiff received adequate notice and service was sufficient to start timelines for filing notice of appeal in California Rules of Court, Rule 8.104(a).

Defamation action regarding article in foreign publication, charging plaintiffs--companies whose wealthy owner was prominent in the country where the article was published--with oppressive employment practices was subject to anti-SLAPP motion; newspaper or magazine is a "public forum" for purposes of the anti-SLAPP statute and wide public concern regarding their owner made plaintiffs' employment practices a matter of "public interest." Where published statements attributed to defendant concerned only defendant's personal experiences while working for plaintiff, not sensitive economic information such as trade secrets, financial data, customer information, or information about other employees, plaintiff failed to make prima facie showing that such statements breached confidentiality agreement, implied covenant of fair dealing, or duty of loyalty, or that they constituted an intentional interference with contract. Plaintiffs, who were "public figures," failed to make prima facie showing of actionable defamation where allegedly defamatory statements--such as that working conditions were "horrible" and that defendant "was used"--constituted protected opinion or rhetorical hyperbole, and where declarations by company employees saying that they did not suffer mistreatment of the type reported by publication did not establish that defendant did not suffer and did not see others suffer such mistreatment.

Appeals from civil commitments under the Mentally Disordered Offender Act are not criminal in nature, so appellate court need not independently review record to determine whether there are grounds for appeal.

Substitution of subcontractor under Public Contract Code Sec. 4107, which limits the circumstances under which substitution can be made and requires the consent of the authority that awarded the contract to the substitution, permits such consent to be given after the substitute subcontractor has done work, so long as the procedure used actually complies with the substance of the reasonable objectives of the statute: namely, the prevention of bid peddling and bid shopping after the award of a public works contract, and the providing of an opportunity to the awarding authority to investigate the proposed replacement subcontractor before consenting to substitution.

Modifications of attorney fee agreement were invalid as noncompliant with Business and Professions Code Sec. 6147, a State Bar Act provision setting requirements for contingent fee agreements, where clients did not sign the documents, and the documents did not state the contingency rate, did not discuss costs, and did not disclose that fees were negotiable and not established by law. Modifications of a contingent fee agreement must comply with Sec. 6147, and a noncompliant modification will not be enforceable even if the original contract complied. Trial court did not violate due process in ordering attorneys to refund the portion of their fees exceeding that to which they were entitled under valid, original fee agreement, where attorneys participated in the hearing from which the order ensued. Court of Appeal had no reason to report client's new counsel to State Bar based on prior attorneys' allegations of fraud, where the alleged fraud occurred before the trial court, trial court's entry of order over objection was an implied rejection of the claims, and State Bar had already rejected similar claims.

Where employee spouse elected retirement option that provided nonemployee spouse with a survivor benefit while reducing benefits payable to employee spouse--such election being irrevocable unless upon dissolution of the parties' marriage the total interest in the retirement plan were awarded to employee spouse--and marriage was later dissolved, order allowing nonemployee spouse to receive her full community property interest in retirement benefits payable during employee spouse's lifetime according to time rule, plus her entire survivor benefit, provided nonemployee spouse with a windfall in violation of statutory equal distribution requirement. Where there was no evidence that retirement benefits could legally and equitably be divided in any other way, trial court was required to allow employee spouse to buy out nonemployee spouse's community property share of retirement benefits including survivor benefit so that employee spouse could revoke designation of nonemployee spouse as beneficiary.

A modification decision.