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Case of the Day

Each member of a conspiracy is criminally responsible for the acts of fellow conspirators committed in furtherance of, and which follow as a natural and probable consequence of, the conspiracy, even though such acts were not intended by the conspirators as a part of their common unlawful design. Defendant Gregory Fred Zielesch bailed Brendt Volarvich out of jail and asked that, in return, Volarvich kill Doug Shamberger, who had been sleeping with defendant’s wife.  Volarvich agreed but needed a “piece” to carry out the hit.  Defendant provided Volarvich with a .357 magnum revolver and $400 to purchase some methamphetamine.  The next day, while driving back to defendant’s house, Volarvich was stopped by California Highway Patrol Officer Andrew Stevens for a traffic violation.  High on methamphetamine and afraid of being sent back to jail, Volarvich shot and killed Officer Stevens with defendant’s gun when the officer walked up to the driver’s window. Murder of Officer Stevens was a natural and probable consequence of the conspiracy to kill Shamberger  People v. Zielesch -C059872-11/23/09 CA3

Sentencing-Gang Enhancement finding reversed. vvvvvvvvvvvvv
Substantial evidence for the true findings on the gang enhancements is lacking and, therefore, reversed gang enhancement findings.  An appellate court cannot affirm a conviction on expert testimony based on speculation, conjecture, guesswork, or supposition.  (People v. Marshall (1997) 15 Cal.4th 1, 35; People v. Morris (1988) 46 Cal.3d 1, 21
People v. Ochoa -E045756-11/20/09 CA4/2

Custodial statement admitted into evidence not in violation of Miranda v. Arizona (1966) 384 U.S. 436, 444-445, 473-474.  Defendant contended his confession was inadmissible because the rule of implied waiver of constitutional rights first articulated by the United States Supreme Court in North Carolina v. Butler (1979) 441 U.S. 369, 371-379, was abrogated by the decision in Missouri v. Seibert (2004) 542 U.S. 600, 616-617 (plur. opn. of Souter, J.).  Court concluded: the controlling constitutional rule in Seibert is that set forth in Associate Justice Anthony M. Kennedy’s concurring opinion; Associate Justice Kennedy’s opinion does not abrogate the implied waiver rule first articulated by the Supreme Court in Butler; and thus the implied waiver rule, which applies to this case, is not rescinded by Seibert. People  v. Rios -B208573-11/19/09 CA2/5  

In enacting Code of Civil Procedure section 170.6 the Legislature guaranteed to litigants an extraordinary right to disqualify a judge. Because the second lawsuit (1) involves a different defendant and different causes of action asserted against that defendant, and (2) does not arise from conduct in, or involve enforcement or modification of an order in, the first lawsuit, we conclude that the second action cannot be considered a continuation of the first within the meaning of governing Supreme Court precedent.  Accordingly, the trial court properly found the peremptory challenge to be timely, and we deny the writ petition.
(Analysis right to disqualify judge)
Nutragenetics v. Super. Ct. -B217853-11/17/09 CA2/8

Proposed Separation Agreement not admissible in disability discrimination action “for purposes of establishing liability under Evidence Code section 1152.  Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.”  (Evid. Code, § 1152, subd. (a).) Mangano v. Verity, Inc. -H033286-11/16/09 CA6

Duty of Insurance Carrier to Defend.  Policy coverage in “advertising injury” claim. The California Supreme Court has stated, “If any facts stated or fairly inferable in the complaint, or otherwise known or discovered by the insurer, suggest a claim potentially covered by the policy, the insurer’s duty to defend arises and is not extinguished until the insurer negates all facts suggesting potential coverage. On the other hand, if, as a matter of law, neither the complaint nor the known extrinsic facts indicate any basis for potential coverage, the duty to defend does not arise in the first instance.”  (Scottsdale Ins. Co. v. MV Transportation (2005) 36 Cal.4th 643, 654-655.) If a policy provision is ambiguous, we resolve the ambiguity in the insured’s favor, consistent with the insured’s reasonable expectations.  (Davis v. Farmers Ins. Group (2005) 134 Cal.App.4th 100, 104.)  Nevertheless, “it is settled that a potential for coverage cannot be based on an unresolved legal dispute concerning policy interpretation which is ultimately resolved in favor of the insurer.”  (Lebas Fashion Imports of USA, Inc. v. ITT Hartford Ins. Group (1996) 50 Cal.App.4th 548, 556 (Lebas).)  Kim Seng Co. v. Great American Ins. -B208699-11/13/09 CA2/5

Provocative Act Murder Doctrine-Actus Reus, Mens Rea and  Transferred Intent
Reyas Concha, Julio Hernandez, and Max Sanchez attempted to murder Jimmy Lee Harris.  During the attempt, Harris responded in self-defense by stabbing Max Sanchez to death.  Relying on the so-called provocative act murder doctrine, the jury convicted defendants Concha and Hernandez of first degree murder for the death of Sanchez. However it appears that the trial court did err when instructing on first degree murder, as opposed to attempted murder, by not providing an instruction that explained that for a defendant to be found guilty of first degree murder, he personally has to have acted willfully, deliberately, and with premeditation when he committed the attempted murder. The Supreme Court remanded the matter back to the Court of Appeals for the Court of Appeal to consider whether this instructional error was prejudicial.
People v. Concha -S163811-11/12/09 SC

Malicious Prosecution:  In recognition of the wrong done the victim of such a tort, settled law permits him to recover the cost of defending the prior action including reasonable attorney’s fees [citations], compensation for injury to reputation or impairment of his social and business standing in the community [citations], and for mental or emotional distress.” (Also has a bit of analysis of statement of decision pursuant to Code of Civil Procedure Sec. 632 and underlying SLAPP Motion, Code of Civil Procedure Sec. 416 ) , Jackson v. Yarbray -B204321-11/10/09 CA2/7

Gag order that prevented defense counsel from discussing the contents of two declarations by witnesses with Defendant requires reversal of attempted murder conviction.  Court's restrictions before trial and during examination of  witness violated Defendant's Sixth Amendment right to consult with his attorney. court order barring defense counsel from discussing the contents of witnesses' written declaration with Defendant Townley,  Appellate court concludes that this order unjustifiably infringed on Defendant's constitutional right to the effective assistance of counsel. The defect is structural. Defendant is entitled to reversal without making a showing of prejudice resulting from this error. (Excellent analysis defendant's Sixth Amendment right to counsel) People v. Hernandez -H031992A-11/9/09 CA6

Childhood sexual molestation victims time barred irrespective of discovery. Childhood sexual molestation victims whose claims were time barred before January 1, 2003, had to sue during the ensuing one-year revival period regardless of whether they had yet discovered the link between the earlier abuse and their adult onset of psychological injuries from that abuse. Statutes are presumed to operate prospectively from the date they take effect unless (1) they contain express language of retroactivity, or (2) other sources provide a clear and unavoidable implication that the Legislature intended retroactive application.  Statutes are presumed to operate prospectively from the date they take effect unless (1) they contain express language of retroactivity, or (2) other sources provide a clear and unavoidable implication that the Legislature intended retroactive application. Common Law Equitable Discovery Does Not Apply
Doe v. R.C. Bishop of San Diego -B209557-11/6/09 CA2/8

Appeal not timely filed dismissed
Appellate court has no jurisdiction to entertain appeal because the notice of appeal was not timely filed. There are no reported cases, statutes or rules which allow the trial court to grant relief from an untimely notice of appeal. Unless the notice [of appeal] is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal."   People v. Lyons -B212253-11/5/09 CA2/6

■  Prosecutorial misconduct: denigration "beyond a reasonable doubt" standard.
Sole claim on appeal: Power Point presentation used by the prosecutor closing argument to illustrate the reasonable doubt standard.  The Power Point presentation consisted of eight puzzle pieces forming a picture of the Statue of Liberty.  The first six pieces came onto the screen sequentially, leaving two additional pieces missing.  The prosecutor argued it was possible to know what was depicted “beyond a reasonable doubt” even without the missing pieces.  The prosecutor then added the two missing pieces to show the picture was in fact the Statue of Liberty.  The trial court overruled defendant’s objection to the presentation.  Defendant now claims reversal is required because the prosecutor’s Power Point presentation was prosecutorial misconduct denigrating the reasonable doubt standard. Appellate court concludes the presentation was improper, but not prejudicial in this case. Conviction affirmed.
People v. Katzenberger -C058883-11/2/09 CA3

Search conducted incident to arrest was beyond the scope of the
arm’s-reach rule of Chimel v. California (1969) 395 U.S. 752.
People. v. Leal -H031174A-10/29/09 CA6  

Judgment void, in whole or in part, as being beyond the jurisdiction of the court, and subject to collateral attack, 311 South Spring v. Dept. of General Services -B212165-10/28/09 CA2/1 

Good discussion of summary judgment. Nazir v. United Airlines-A121651-10/9/09 CA1/2

Sacramento County has governmental immunity when firefighter who was allowed to take fire truck to the Porn Star Costume Ball and even allowed to pick up women allegedly on the fire truck sexually assaulted a female photographer M.P. v. City of Sacramento -C057324-8/31/09 CA3

Knight v Jewett 3Cal.4th 296 11Cal.Rptr.2d 2, 1992-08-24
(Excellent Analysis-primary Assumption of Risk)

Good Analysis -Summary Judgment
Y.K.A. Industries, Inc. v. Redevelopment Agency of the City of San Jose, -H031583-5/27/09

Good Analysis -Hearsay Rule- Exceptions: Jazayeri v. Mao -B195083- 5/27/09 CA2/4 

Excellent Analysis Prosecutorial Misconduct-New Trial Granted
US v Reyes 2009-80-18-No. 08-10047
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