CA Pub. Decisions

In deciding whether to deny probation to defendant convicted under Penal Code Sec. 191.5(a) of gross vehicular manslaughter while intoxicated, court properly considered victim vulnerability where victims had been driving their car on highway in proper direction at lawful speed with headlights on at time defendant, driving her car in opposite direction of oncoming traffic at high rate of speed with headlights off, collided with them. Court also properly considered the "dreadful loss" to victim's family and the "horrific nature" of offense as compared with other similar offenses in light of defendant's continuation of driving after a "near miss" with another car prior to the collision, her high blood alcohol level, and the presence of cocaine in her system. Defendant's youth, though not listed in sentencing rules, was properly considered as an additional factor in record that was reasonably related to probation decision. Court properly considered aggravating circumstances of victim vulnerability, the offense's horrific nature, defendant's continuation of driving after the near miss prior to the collision, her high blood alcohol level, and the presence of cocaine in her system in imposing middle six year term sentence. As to the great bodily injury defendant personally inflicted on surviving victim, court properly imposed a three year enhancement under Sec. 12022.7(a) rather than the more specific one year Vehicle Code Sec. 23558 enhancement. Section 12022.7(a) enhancement may apply to a victim-specific offense like a Sec. 191.5(a) offense even when he ostensible victim of that offense was not, for purposes of section 12022.7(a), the person on whom defendant personally inflicted great bodily injury in the commission of that offense.

In deciding whether to deny probation to defendant convicted under Penal Code Sec. 191.5(a) of gross vehicular manslaughter while intoxicated, court properly considered victim vulnerability where victims had been driving their car on highway in proper direction at lawful speed with headlights on at time defendant, driving her car in opposite direction of oncoming traffic at high rate of speed with headlights off, collided with them. Court also properly considered the "dreadful loss" to victim's family and the "horrific nature" of offense as compared with other similar offenses in light of defendant's continuation of driving after a "near miss" with another car prior to the collision, her high blood alcohol level, and the presence of cocaine in her system. Defendant's youth, though not listed in sentencing rules, was properly considered as an additional factor in record that was reasonably related to probation decision. Court properly considered aggravating circumstances of victim vulnerability, the offense's horrific nature, defendant's continuation of driving after the near miss prior to the collision, her high blood alcohol level, and the presence of cocaine in her system in imposing middle six year term sentence. As to the great bodily injury defendant personally inflicted on surviving victim, court properly imposed a three year enhancement under Sec. 12022.7(a) rather than the more specific one year Vehicle Code Sec. 23558 enhancement. Section 12022.7(a) enhancement may apply to a victim-specific offense like a Sec. 191.5(a) offense even when he ostensible victim of that offense was not, for purposes of section 12022.7(a), the person on whom defendant personally inflicted great bodily injury in the commission of that offense.

In deciding whether to deny probation to defendant convicted under Penal Code Sec. 191.5(a) of gross vehicular manslaughter while intoxicated, court properly considered victim vulnerability where victims had been driving their car on highway in proper direction at lawful speed with headlights on at time defendant, driving her car in opposite direction of oncoming traffic at high rate of speed with headlights off, collided with them. Court also properly considered the "dreadful loss" to victim's family and the "horrific nature" of offense as compared with other similar offenses in light of defendant's continuation of driving after a "near miss" with another car prior to the collision, her high blood alcohol level, and the presence of cocaine in her system. Defendant's youth, though not listed in sentencing rules, was properly considered as an additional factor in record that was reasonably related to probation decision. Court properly considered aggravating circumstances of victim vulnerability, the offense's horrific nature, defendant's continuation of driving after the near miss prior to the collision, her high blood alcohol level, and the presence of cocaine in her system in imposing middle six year term sentence. As to the great bodily injury defendant personally inflicted on surviving victim, court properly imposed a three year enhancement under Sec. 12022.7(a) rather than the more specific one year Vehicle Code Sec. 23558 enhancement. Section 12022.7(a) enhancement may apply to a victim-specific offense like a Sec. 191.5(a) offense even when he ostensible victim of that offense was not, for purposes of section 12022.7(a), the person on whom defendant personally inflicted great bodily injury in the commission of that offense.

Trial court did not abuse its discretion by denying class certification in unfair competition action charging defendants with unlawfully selling product that contained a prescription drug, where trial judge properly found that since plaintiffs were distributors of the product and profited from its sale, their claims were not typical of those of other class members and they would not adequately represent the class.

Allegations that city breached a promise to mobilehome owners and tenants by requiring tax exempt bond financing for purchase of mobilehome park thus excluding owners' association from purchasing the park since it could not qualify and that it deprived the association of a true opportunity to purchase the park because it set the selling price above the park's fair market value failed to state a cause of action based on promissory estoppel, since city could not legally be bound by such alleged promises in absence of legal formalities, the existence of which were not alleged. Allegations that city's notice of intent to sell park violated notice requirements of the Mobilehome Residency Law because "it was a sham" in that the city had no intent to "sell the park on true, real and non illusory terms" and that the notice breached the implied covenant of good faith and fair dealing in the leases between the city and tenants since the leases incorporate the terms of the Mobilehome Residency Law failed to state a cause of action because city was not required by statute or contract to offer to sell the park to tenants on any particular terms. Summary judgment procedures do not apply to validation actions. Hearing held pursuant to Tax Equity and Fiscal Responsibility Act of 1982 on city's plan to privatize mobilehome park through tax exempt bond financing was legally inadequate where evidence was not provided at the hearing that IRS requirements had been met, and city did not give the public an adequate opportunity to comment on the matter of low income housing, the provision of which is the purpose of financing the private project with tax exempt bonds.

Allegations that city breached a promise to mobilehome owners and tenants by requiring tax exempt bond financing for purchase of mobilehome park thus excluding owners' association from purchasing the park since it could not qualify and that it deprived the association of a true opportunity to purchase the park because it set the selling price above the park's fair market value failed to state a cause of action based on promissory estoppel, since city could not legally be bound by such alleged promises in absence of legal formalities, the existence of which were not alleged. Allegations that city's notice of intent to sell park violated notice requirements of the Mobilehome Residency Law because "it was a sham" in that the city had no intent to "sell the park on true, real and non illusory terms" and that the notice breached the implied covenant of good faith and fair dealing in the leases between the city and tenants since the leases incorporate the terms of the Mobilehome Residency Law failed to state a cause of action because city was not required by statute or contract to offer to sell the park to tenants on any particular terms. Summary judgment procedures do not apply to validation actions. Hearing held pursuant to Tax Equity and Fiscal Responsibility Act of 1982 on city's plan to privatize mobilehome park through tax-exempt bond financing was legally inadequate where evidence was not provided at the hearing that IRS requirements had been met, and city did not give the public an adequate opportunity to comment on the matter of low income housing, the provision of which is the purpose of financing the private project with tax-exempt bonds.

Where objector in proceedings to reestablish conservancy had received copy of petition which included physicians' declaration stating that she suffered from schizophrenia and could not provide basic care for herself, and that imposition of disabilities was necessary because of her psychosis and poor judgment, as well as notice of the intended placement in a locked facility and the precise nature of the proposed disabilities; received written notices of her right to a hearing and a jury trial if she opposed reestablishment of the conservancy; and discussed matters with her attorney in person her procedural due process right was adequately protected even though stipulation form for reestablishment of conservatorship did not recite proposed placement and disabilities, indicate counsel discussed these matters with the conservatee along with the conservatee's right to a jury trial, or require the conservatee's signature in addition to counsel's signature.

Placement of dependent children in a foreign country is not precluded as a matter of law. Pending detention hearing, court was authorized under Welfare and Institutions Code Sec. 309(d)(3) to temporarily detain children with relative in Mexico before conducting formal criminal background checks on relative and live in companion where social services agency alleged children were at substantial risk of harm because they were periodically exposed to domestic violence in the home and because their parents used alcoholic beverages to excess, relative in Mexico came forward and offered his home for the placement, agency's Mexican counterpart gave favorable evaluation of relative's home, and relative and companion denied having a criminal history. Court erred in permanently placing children in Mexican relative's home without conducting criminal background checks required by Sec. 361.4 or comparable criminal record checks used in Mexico. Agency's failure to give mother statutory notice of its plans to detain children in Mexico did not deprive court of jurisdiction to grant detention order where the order was temporary, mother did not request a continuance, and court did not deny her a contested hearing regarding agency's jurisdictional/dispositional recommendations. Court did not abuse its discretion in placing children in Mexico where all the children were willing to be placed with Mexican relative; Mexican agency evaluated relative's home and determined that he and companion could properly care for the children; and relative and companion were both retired, were healthy, had adequate income to provide for children, and had a house large enough to accommodate them.

Placement of dependent children in a foreign country is not precluded as a matter of law. Pending detention hearing, court was authorized under Welfare and Institutions Code Sec. 309(d)(3) to temporarily detain children with relative in Mexico before conducting formal criminal background checks on relative and live in companion where social services agency alleged children were at substantial risk of harm because they were periodically exposed to domestic violence in the home and because their parents used alcoholic beverages to excess, relative in Mexico came forward and offered his home for the placement, agency's Mexican counterpart gave favorable evaluation of relative's home, and relative and companion denied having a criminal history. Court erred in permanently placing children in Mexican relative's home without conducting criminal background checks required by Sec. 361.4 or comparable criminal record checks used in Mexico. Agency's failure to give mother statutory notice of its plans to detain children in Mexico did not deprive court of jurisdiction to grant detention order where the order was temporary, mother did not request a continuance, and court did not deny her a contested hearing regarding agency's jurisdictional/dispositional recommendations. Court did not abuse its discretion in placing children in Mexico where all the children were willing to be placed with Mexican relative; Mexican agency evaluated relative's home and determined that he and companion could properly care for the children; and relative and companion were both retired, were healthy, had adequate income to provide for children, and had a house large enough to accommodate them.

Defendant in sexual abuse trial was not denied effective assistance of counsel because his attorney failed to formally investigate child victim's competency to testify by way of a pretrial "taint hearing," where victim was not very young eight at the time of the alleged abuse--and was articulate concerning her relationship with defendant, and there was no evidence that she was questioned and misled by professionals or that she was pressured by professionals to misstate or misperceive the truth about what occurred. Defendant was not prejudiced by his counsel's failure to pursue taint hearing where thorough cross-examination of victim and other witnesses did not produce any evidence that police were overly suggestive or coercive in interviewing victim, and statements that he made during a pretext phone call, which was undisputedly admissible, were highly incriminating.

Extended Detention Act which permits continued detention of a juvenile offender who has reached the age at which release from custody would otherwise be required but who is determined beyond a reasonable doubt to be physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality that causes the person to have serious difficulty controlling his or her dangerous behavior does not deprive such juveniles of equal protection of the law since it does not treat them differently from similarly situated adult prisoners who are subject to civil commitments under the Sexually Violent Predators Act and the mentally disordered offender laws. Order extending commitment was not penal in nature, did not violate substantive due process, and did not result in cruel and unusual punishment since it was based on proof beyond a reasonable doubt and was for purposes of treatment. Order was supported by substantial evidence that ward's mental disorder causes him serious difficulty in controlling his dangerous behavior and that risk of reoffense is a result of a mental disorder, including a violence risk appraisal based on defendant's file information that showed a 55 percent probability of violent recidivism in seven years after release and a 64 percent probability in 10 years after release, and a sex offender risk appraisal that showed a 58 percent probability of violent recidivism after seven years of release and a 76 percent probability after 10 years of release. Denial of mistrial based on improper argument by prosecutor, who implied the existence of facts not in evidence and interjected his personal views, was not error where trial court gave a specially tailored curative instruction.

Extended Detention Act which permits continued detention of a juvenile offender who has reached the age at which release from custody would otherwise be required but who is determined beyond a reasonable doubt to be physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality that causes the person to have serious difficulty controlling his or her dangerous behavior does not deprive such juveniles of equal protection of the law since it does not treat them differently from similarly situated adult prisoners who are subject to civil commitments under the Sexually Violent Predators Act and the mentally disordered offender laws. Order extending commitment was not penal in nature, did not violate substantive due process, and did not result in cruel and unusual punishment since it was based on proof beyond a reasonable doubt and was for purposes of treatment. Order was supported by substantial evidence that ward's mental disorder causes him serious difficulty in controlling his dangerous behavior and that risk of reoffense is a result of a mental disorder, including a violence risk appraisal based on defendant's file information that showed a 55 percent probability of violent recidivism in seven years after release and a 64 percent probability in 10 years after release, and a sex offender risk appraisal that showed a 58 percent probability of violent recidivism after seven years of release and a 76 percent probability after 10 years of release. Denial of mistrial based on improper argument by prosecutor, who implied the existence of facts not in evidence and interjected his personal views, was not error where trial court gave a specially tailored curative instruction.

Extended Detention Act which permits continued detention of a juvenile offender who has reached the age at which release from custody would otherwise be required but who is determined beyond a reasonable doubt to be physically dangerous to the public because of his or her mental or physical deficiency, disorder, or abnormality that causes the person to have serious difficulty controlling his or her dangerous behavior does not deprive such juveniles of equal protection of the law since it does not treat them differently from similarly situated adult prisoners who are subject to civil commitments under the Sexually Violent Predators Act and the mentally disordered offender laws. Order extending commitment was not penal in nature, did not violate substantive due process, and did not result in cruel and unusual punishment since it was based on proof beyond a reasonable doubt and was for purposes of treatment. Order was supported by substantial evidence that ward's mental disorder causes him serious difficulty in controlling his dangerous behavior and that risk of reoffense is a result of a mental disorder, including a violence risk appraisal based on defendant's file information that showed a 55 percent probability of violent recidivism in seven years after release and a 64 percent probability in 10 years after release, and a sex offender risk appraisal that showed a 58 percent probability of violent recidivism after seven years of release and a 76 percent probability after 10 years of release. Denial of mistrial based on improper argument by prosecutor, who implied the existence of facts not in evidence and interjected his personal views, was not error where trial court gave a specially tailored curative instruction.

Gang warfare shootings in Fresno one night led to verdicts finding two members of the Floradora Street Bulldogs criminal street gang Hugo Cernas and Ronald Enrique Ybarra guilty, inter alia, of the first degree special circumstances murder of a man who was not a gang member and the willful, deliberate, and premeditated attempted murders of a pregnant woman and another man, neither of whom was a gang member, either. Cernas and Ybarra raise numerous issues on appeal. Court vacate both sentences in toto and remand to the trial court with directions but otherwise affirm both judgments.