Blog
Loomis v. Amazon
In this published opinion, CA court of appeal held:
Amazon strictly liable for injuries of third party product
B297995
(Los Angeles County
Super. Ct. No.
BC632830)
4/26/2021
https://www.courts.ca.gov/opinions/documents/B297995.PDF
Bolger v. Amazon.com, LLC (2020) 53 Cal.App.5th
431 (Bolger), review denied November 18, 2020. Bolger held
Amazon “is an ‘integral part of the overall producing and
marketing enterprise that should bear the cost of injuries
resulting from defective products.’ ” (Id. at p. 453.) Our own
review of California law on strict products liability persuades us
that Bolger was correctly decided and that strict liability may
attach under the circumstances of this case. We reverse and
remand with directions.
This case is easy. Amazon is well situated to take costeffective measures
to minimize the social costs of accidents.
Strict liability will prompt this beneficial conduct. Loomis wins
this appeal. The case will return to the trial court for resolution
of issues the appeal has not addressed.
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4 January 2021
Los Angeles has a new district attorney George Gascon who is aimed to reform CA draconian sentencing scheme that has caused mass incarceration in CA prisons and overcrowding
https://whatsnextlosangeles.buzzsprout.com/1414123/7106155-george-gascon-reforming-criminal-justice-in-la?fbclid=IwAR1v7oQ1kp0PllTdxFKXI1-SI6FdUMkP-ZslK-QLu-1YVro5a6p7R3PPOPU
https://bit.ly/3ocXvdK
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A person convicted of a misdemeanor is entitled to
expungement of that conviction if, among other things, the
person lives “an honest and upright life” during a specified
period after judgment. (Pen. Code, § 1203.4a(a) (section
1203.4a(a)).) We hold that a person may live such a life even if
that person has been in custody since completing the sentence
imposed for the misdemeanor.
conduct while in custody is relevant to determining whether a
defendant has satisfied the honest and upright life requirement.
People v. Maya
Ca Supreme court
S255371
9 april 2020
https://www.courts.ca.gov/opinions/documents/S255371.PDF
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A stop signal arm affixed to a school bus does not fall within the parameters of Vehicle code 22450, meaning failing to stop on that signal does not violate VC 22450.
Peoplev. Kruschen
2/21/2020
Appellate division of LA superior court
BR 054637
Chatsworth Trial Court
No. AB415583
COURTS.CA.GOV
www.courts.ca.gov
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Cops can’t search someone’s home without search warrant absent exigent circumstances, even for welfare check
Ca Supreme court ruled on august 12, 2019:
an entry for reasons short of a perceived emergency, or similar exigency, fails to satisfy the relevant constitutional standard….
We disapprove the lead opinion in People v. Ray, supra, 21
Cal.4th 464 to the extent it conflicts with the views expressed here.
On cross-examination, Garcia conceded that
officers had no “specific information that led [them] to believe somebody else was inside.”
People v. Ovieda
S247235
Coa 2/6
B277860
Santa Barbara County Superior Court
1476460
12 august 2019
COURTS.CA.GOV
https://www.courts.ca.gov/opinions/documents/S247235.PDF
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Incivility in civil courts
In general, lawyers practicing in civil courts are far less civil than criminal lawyers and prosecutors.
Civil practice involves constant bullying, threatening, intimidating… Here is a fair description of civil lawyers’ conducts by CA court of appeal in this recent published case
Lasalle v. Vogel
G055381
Filed 6/11/19
https://bit.ly/2wNnnn8
Here is what CCP section 583.130 says: “It is the
policy of the state that a plaintiff shall proceed with reasonable diligence in the
prosecution of an action but that all parties shall cooperate in bringing the action to trial
or other disposition.” That is not complicated language. No jury instruction defining any
of its terms would be necessary if we were submitting it to a panel of non-lawyers. The
policy of the state is that the parties to a lawsuit “shall cooperate.” Period. Full stop.
“Incivility in open
court infects the process of justice in many ways. It compromises the necessary public
trust that the system will produce fair and just results; it negates the perception of
professionalism in the legal community, and it erodes respect for all people involved in
the process.” (In re Hillis (Del. 2004) 858 A.2d 317, 324.)
CONCLUSION AND DISPOSITION
Supreme Court Chief Justice Warren Burger long ago observed, “[L]awyers
who know how to think but have not learned how to behave are a menace and a liability
. . . to the administration of justice. . . . [¶] . . . [T]he necessity for civility is relevant to
lawyers because they are the living exemplars – and thus teachers – every day in every
case and in every court and their worst conduct will be emulated perhaps more readily
than their best.” (Burger, Address to the American Law Institute, 1971, 52 F.R.D. 211,
215.) In recognition of this fact, section 583.130 says it is the policy of this state that “all
parties shall cooperate in bringing the action to trial or other disposition.” Attorneys who
do not do so are practicing in contravention of the policy of the state and menacing the
future of the profession.
The judgment is reversed. Appellant will recover her costs on appeal.
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Remember UPS “Air” “next day air” ‘2nd day air” don’t mean your package will be shipped by plane.
Very stunning that the court didn’t believe the word “air” in UPS contracts is deceptive and misleads customers.
http://cdn.ca9.uscourts.gov/…/memor…/2019/04/23/16-55918.pdf
that’s how the 9th circuit court of appeal analyzed:
Plaintiffs try to inject ambiguity into these clear contract provisions based on the word “Air” in UPS’s service names, asserting that “Air” services “plainly referred to ‘air transport.’” This interpretation conflates UPS’s “services” with modes of “transportation” despite the above-quoted contract provisions distinguishing these two concepts.
Plaintiffs cannot override the clear contract terms by relying on their “subjective understanding” of the single word “Air,”
isolated from its context as part of a service name. FDIC v. Fisher, 292 P.3d 934, 937–38 (Colo. 2013); accord Cont’l Ins., 281 P.3d at 1004; First Data, 546 S.E.2d at 784.
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Defendant with a current assault offense and two priors that required sex offender registration, was entitled to early parole consideration under Prop 57.
Under Penal Code section 32(a)(1) added by Prop 57, any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his primary offense. CDCR regulations exclude from parole consideration, an inmate who is convicted of a sex offense that carries a sex offender registration requirement. Defendant was convicted of assault with a deadly weapon but had two prior registerable offenses. Under the plain text of section 32(a), he was entitled to early parole consideration.
In re GREGORY GADLIN, published
on Habeas Corpus
B289852
(Los Angeles County
Super. Ct. No. BA165439)
Coa 2/5
1/28/2019
https://www.courts.ca.gov/opinions/documents/B289852.PDF
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Biometrics passcode Covered by Fifth Amendment
Law enforcements can’t force smart phone owners to unlock their phone by finger print and image recognition; it would violate their Fifth Amendment rights because biometric data is testimonial.
https://blogs.findlaw.com/…/biometrics-now-covered-by-fifth…
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Defendant convicted of pandering, pimping and human trafficking for keeping a prostitute dependent on him for food/shelter and money even though she had her own room and a phone.
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Dogs must be especially trained to serve as ‘service dogs’
Joey Miller v. Fish markets
B271214
Los Angeles County
LC098458
9/12/2017
Fish markets properly denied entry of the autistic man and his service dog Roxy, because Roxy was not a fully trained service dog and was still “in the process of being trained.”
“Service animal means any dog that is individually trained
to do work or perform tasks for the benefit of an individual
with a disability, including a physical, sensory, psychiatric,
intellectual, or other mental disability. Other species of
animals, whether wild or domestic, trained or untrained, are
not service animals for the purposes of this definition. The
work or tasks performed by a service animal must be directly
related to the individual’s disability. . . . The crime deterrent
effects of an animal’s presence and the provision of
emotional support, well-being, comfort, or companionship do
not constitute work or tasks for the purposes of this
definition.” (28 C.F.R. § 36.104).
“ ‘service dog’ means any dog individually trained to do
work or perform tasks for the benefit of an individual with a
disability, including, but not limited to, minimal protection
work, rescue work, pulling a wheelchair, or fetching dropped
items.” (Pen. Code § 365.5(f).)
“[a]ny trainer or individual with a disability may take dogs in any of the places specified in subdivisions (a) and (b) for the purpose of training the dogs as guide dogs, signal dogs, or service dogs.” (Pen. Code § 365.5(i).)
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Important DUI tips
Vehicle Code 23612 is so long and convoluted and covers many crucial “does and don’ts” that police officers are not aware of.
After we are LAWFULLY ARRESTED, we are obligated to submit to blood or breath test, not when we are pulled over by police. Cops are obligated to clearly advise us when we are pulled over for driving under the influence, of these important sections of vehicle code 23612 that:
1. We are not required to do the field sobriety and PAS tests [preliminary alcohol screening, blowing in the hand held unit] in the street before they arrest us [vehicle code 23612(i)].
2. After we are lawfully arrested and transferred to police station, the officer is required to advise us clearly and we are obligated to submit to blood, urine or breath test [VC 23613(a)(2)(B); we decide which test.
3. if we can’t provide urine and breath tests, our blood test must be done with our EXPRESS CONSENT, not by force, or by search warrant. Based on the US Supreme court ruling in Missouri v. McNeely in 2013, absent an exigent circumstance, cops are required to get a search warrant for our blood test if we don’t consent, don’t agree to give blood.
In two recent CA DUI cases, two appellate departments suppressed the blood test results that resulted in DUI convictions, since the drivers had not expressly consented to blood withdrawal, blood tests were illegal search and seizure.
* Ling v. Superior Court of San Mateo county
AD-5574
5/5/2017 the
http://www.courts.ca.gov/opinions/documents/JAD17-11.PDF
People have the burden of proving that the defendant’s manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of
authority.’” (People v. Zamudio (2008) 43 Cal.4th 327, 341.)
* People v. Pickard
CA269335
6/30/2017
Per the officer’s advice, Pickard agreed to give blood for alcohol test only. then the lab went on and did drug tests Pickard had not consented to.
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People v. Miguel Iraheta partial published
(Los Angeles County
Super. Ct. No. YA053907)
Coa 2/3
31 aug 2017
conviction reversed for inadmissible gang expert testimony
Sanchez violation
http://www.courts.ca.gov/opinions/documents/B261606.PDF
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Family Code 3104 doesn’t provide visitation right to great grand parents
ED H. et al.
v.
ASHLEY C.…
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When a tenant mails rent at a landlord’s direction and, through no fault of the tenant, the landlord does not receive it, the tenant is not in default in the payment of rent in an unlawful detainer action.
SLEEP EZ
v.
MARTINIANO MATEO et al.
BV031618
Central Trial Court
No. 15U11111
Appellate Division of Superior Court of California
County of Los Angeles
April 4, 2017 published opinion
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Jurors are not allowed to do independent research and experiment while serving
People v. John Landis Wismer published
4/1
4/20/2017
D068743
(Super. Ct. No. SCD252707
http://www.courts.ca.gov/opinions/documents/D068743.PDF
If jurors conduct independent investigation, the parties are deprived of the ability to understand and address the results of that investigation, whatever they may be.
Independent investigation and experimentation is error when it provides the jury with additional evidence never presented at trial. It is evidence the parties never saw, much less had the opportunity to object or respond to.
DISPOSITION
The judgment is reversed. The matter is remanded for further proceedings consistent with this opinion.
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Under CA Vehicle code 23612, before drawing blood, cops are required to admonish drivers that:
1. they are required to submit to blood or urine test after they are arrested, 2. they can refuse the tests, but will suffer consequences.
In People v. Rebecca Mason, the court of appeal reversed denial of Mason’s motion to suppress her blood test result, since the officer hadn’t advised her of her right to refuse the test:
“But an officer’s failing to give the full and accurate admonition is consideration in the totality of the circumstances bearing on whether suspect facing DUI charges actually consented to a blood draw for Fourth Amendment purposes”. [failure to disclose accurate information regarding potential legal consequences of certain behavior is logical basis for assertion of coercion.
http://www.courts.ca.gov/opinions/documents/JAD16-13.PDF
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In June 9, 2016, 9th Circuit Court (federal court of appeal in California) ruled:
The Second Amendment does not allow the general public to carry concealed firearms in public.
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CA Traffic ticket amnesty program
Beware of scammers
The Infractions Amnesty Program became effective in October 2015 for unpaid traffic tickets. DMV has contracted with GC Service Limited Partnership to process and administer the Amnesty program. GC notifies the drivers of pending unpaid tickets by letters.
BUT, GC alleged debt may be bogus. I recently received a letter from GC regarding $779 unpaid ticket I didn’t recognize. I called GC many times for few days, no one would answer the phone. Few days later while I was in Long Beach court on a case, I went to the traffic window to verify the $779 ticket.
The ticket “isn’t in the court system”, the traffic clerk told me and pointed to the GC desk few windows away where people were in line to process their unpaid tickets. Then I noticed the traffic clerk flagged the GC staff to delete my bogus ticket from their system.
I imagine many people at GC windows are in similar situation, but GC staff would collect payments without advising them
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Death penalty in the US – Life & death by numbers
The number of people executed in the US this year just hit its lowest annual figure in quarter of a century: 28 executions. That’s down from 98 executions in 1999.
Here are ten other numbers to think about as 2015 draws to a close:
1. Innocent people freed from death row in 2015: six, taking the total of death row exonerations since 1973 to 156.
2. America’s position in the league of execution nations: fifth. We overtook Iraq for the number of executions in 2015 but are behind Pakistan, Iran, Saudi Arabia, and China.
3. Number of executions in every other Western nation except the US: zero.
4. People sentenced to death in the US in 2015: 49. That’s also a record low since the death penalty was brought back.
5. The most death sentences in any state: 14 in California.
6. The most death sentences for any county in the US: eight in Riverside, California. That’s four times as many death sentences this year as the whole of Texas.
7. The proportion of Americans on death row who are in California: one in four.
8. People California has sentenced to die since it brought back the death penalty in 1978: 1,046.
9. Total out of those 1,046 that California executed: 13.
10. Total cost of California’s death penalty system since 1978: $5,000,000,000.00. Yes, that’s five billion dollars. But it’s a conservative estimate. And it’s one number that’s counting up.
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US death row population 3,108
Race of Defendant
White 1,334 (43.10%)
Black 1,291 (41.71%)
Latino/Latina 391 (12.63%)
Asian 45 (1.42%)
Native American 33 (1.07%)
Unknown 1 (0.03%)
Gender
Male 3,034 (98.03%)
Female 61 ( 1.97%)
Jurisdictions with the most inmates on death row:
– California (746) (Source: CDCR Condemned Inmate List)
– Florida (412)
– Texas (292)
– Pennsylvania (197)
Source: NAACP LDF Report “Death Row U.S.A
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Be careful on single websites.
Match.com matched Mary Beckman with a guy who had extensive criminal record and apparently harmed Beckman.
Watch the oral argument
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DUI – consensual contact with police can result in detention and unlawful search & seizure
P. v. Linn
Coa 2/1
10/8/2015
An officer’s taking of a person’s identification card and retention of it while running a record check or engaging in further questioning weighs in favor of a finding of an unlawful detention.
http://www.courts.ca.gov/opinions/documents/A145052.PDF
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Good news for delinquent drivers
Traffic Tickets/Infractions Amnesty Program
For the next 18 months, a new amnesty program in California will discount traffic and non-traffic infractions that were due on or before Jan 1, 2013, and will help those seeking driver’s license reinstatements. This program started on Oct 1, 2015 and will end on March 31, 2017.
See how you can change your gender
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You can’t apply for prop 47 relief during appeal
People v. Scarbrough – C075414
Court of appeal. 3rd district
published 9/25/2015
http://www.courts.ca.gov/opinions/documents/C075414.PDF
Trial court lacked jurisdiction to recall defendant’s sentence and to resentence her pursuant to section 1170.18 while this appeal was pending. Trial court order is void. Defendant may “petition for recall of sentence in the trial court once [her] judgment is final . . . .” pursuant to People v. Noyan (2014) 232 Cal.App.4th 657, 672.
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Prop 36 three-strike resentence reversed- 25-life reinstated
What a travesty! The guy was serving 25-life as three-striker; his prop 36 was granted and he was released . .. then hauled back to court, reresentenced to 25-life, back to prison 🙁
People v. Albert Amaya
published 8/11/2015
COA 4/2 E060218
(Super.Ct.No. FSB059205)
http://www.courts.ca.gov/opinions/documents/E060218M.PDF
We will hold that the reduced sentence was not unauthorized, because all of the evidence that was before the trial court at the time indicated that defendant was entitled to resentencing. Nevertheless, the reduced sentence was void on the face of the record. Accordingly, the trial court had the authority to vacate the reduced sentence and to reimpose the original sentence.
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Born in Jerusalem?
US Supreme Court June 8, 2015
Menachem Zivotofsky v. John Kerry, Secretary of State
http://www.supremecourt.gov/opinions/14pdf/13-628_l5gm.pdf
Kids of American parents born in Jerusalem are not citizens of Israel. The President has the exclusive power to grant formal recognition to a foreign sovereign. According to Executive Branch, the United States does not recognize any country as having sovereignty over Jerusalem.
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Lewd/sex act 288(a) convicts can apply for certificate of rehab under Penal Code 4852.01(d)
People v. JOHN LYNN TIREY published may 2014
COA4/3 G048369
(Super. Ct. No. M14588)
PC 288(a)—must be removed from the list of crimes for which an absolute prohibition on petitioning for a certificate of rehabilitation exists. We therefore reverse the trial court’s order denying defendant’s petition, and remand the matter to allow the trial court to consider the merits of the petition. Section 4852.01(a) allows those convicted of a felony to petition for a certificate of rehabilitation. The purpose of the statute is to allow rehabilitated criminal offenders to regain various civil rights denied to felons. (See People v. Jones (1985) 176 Cal.App.3d 120, 130.) Subdivision (d) of section 4852.01, however, absolutely denies the right to petition for a certificate of rehabilitation to “persons serving a mandatory life parole, persons committed under death sentences, persons convicted of a violation of 286(c) Section 288, (c) of Section 288a, Section 288.5, 289(j), or persons in the military service.
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California Supreme Court
Realignment not applicable to probation violators whose sentence was suspended prior to the Act
People v. James Russel Scott
19 may 2014
S211670
Ct.App. 6 H037923
Monterey county
Super. Ct. No. SS080912
Clytus disapproved the Realignment Act is not applicable to defendants who have had a state prison sentence imposed and suspended prior to October 1, 2011. Therefore, when the trial court decided not to reinstate defendant‟s probation and to order the previously imposed seven-year sentence to be executed, defendant was not entitled, under section 1170(h)(6), to an order committing him to the county jail. We disapprove People v. Clytus, supra, 209 Cal.App.4th 1001. In 2011, the Legislature enacted and amended the 2011 Realignment Legislation addressing public safety (Stats. 2011, ch. 15, § 1; Stats. 2011, 1st Ex. Sess. 2011-2012, ch. 12, § 1 (the Realignment Act or the Act). As relevant here, the Realignment Act significantly changes the punishment for some felony convictions. Under the terms of the Act, low-level felony offenders who have neither current nor prior convictions for serious or violent offenses, who are not required to register as sex offenders and who are not subject to an enhancement for multiple felonies involving fraud or embezzlement, no longer serve their sentences in state prison. Instead, such offenders serve their sentences either entirely in county jail or partly in county jail and partly under the mandatory supervision of the county probation officer. (Pen. Code, § 1170, subd. (h)(2), (3), (5).)1 Felony offenders who are sentenced to county jail may be eligible for a county home detention program in lieu of confinement (§ 1203.016, subd. (a)) and are not subject to parole, which extends only to persons who have served state prison terms. (§ 3000 et seq.) The Legislature provided that the sentencing changes made by the Realignment Act “shall be applied prospectively to any person sentenced on or after October 1, 2011.” (§ 1170, subd. (h)(6) (hereafter section 1170(h)(6)).)
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US Supreme court
Jeopardy attaches after jury is sworn; can’t retry defendant after the jury is sworn
ESTEBAN MARTINEZ, PETITIONER v. ILLINOIS
on petition for writ of certiorari to the supreme court of illinois
No. 13-5967. Decided May 27, 2014
Held:
the bright-line rule is that “jeopardy attaches when the jury is empaneled and sworn.” Crist v.Bretz, 437 U. S. 28, 35 There is simply no doubt that Martinez was subjected to jeopardy. And because the trial court found the State’s evidence insufficient to sustain a conviction, there is equally no doubt that Martinez may not be retried. There are few if any rules of criminal procedure clearer than the rule that “jeopardy attaches when the jury is empaneled and sworn.” Crist, 437 U. S., at 35 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=4 see also United States v. Martin Linen Supply Co., 430 U. S. 564, 569 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=4
Our clearest exposition of this rule came in Crist, which addressed the constitutionality of a Montana statute providing that jeopardy did not attach until the swearing of the first witness. As Crist explains, “the precise point at which jeopardy [attaches] in a jury trial might have been open to argument before this Court’s decision inDownum v. United States, 372 U. S. 734 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=372&invol=734 [(1963)],” in which “the Court held that the Double Jeopardy Clause prevented a second prosecution of a defendant whose first trial had ended just after the jury had been sworn and before any testimony had been taken.” 437 U. S., at 35 http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=US&vol=437&page=35. But Downum put any such argument to rest: Its holding “necessarily pinpointed the stage in a jury trial when jeopardy attaches, and [it] has since been understood as explicit authority for the proposition that jeopardy attaches when the jury is empaneled and sworn.” Crist, supra, at 35.
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In re Y.R.
Conviction for trespass [PC 602(m) requires continuous possession of the property
conviction reversed against juvenile defedant
Published COA 4/1 6/3/14
D063769
(Super. Ct. No. J223215)
http://www.courts.ca.gov/opinions/documents/D063769.PDF
‘occupy’ means a nontransient, continuous type of possession” with “some degree of dispossession and permanency.” (Wilkinson, 248 Cal.App.2d Supp. at pp. 910-911.) Had the Legislature intended to prohibit mere transient possession of a property, it would have used a verb such as “be, remain, loiter, tarry, camp [or] stay” in lieu of “occupy.” (Id. at p. 910.) The court thus concluded that “the transient overnight use of four 3 x 7 foot areas in a very large ranch for sleeping bags and campfire purposes was not the type of conduct which the Legislature intended to prevent when it used the word ‘occupy.’ ” (Ibid.; see also CALJIC No. 16.340 [elements of trespass under § 602, subd. (m) include proving that defendant “occupied some portion, or all thereof, continuously or until ousted therefrom” and defendant “entered and occupied the property with the specific intent to dispossess those lawfully entitled to possession from that portion of the property actually occupied”].)
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Court can’t commit juvenile defendant to jail if his last offense is not serious or violent
[under age kid robbed, carjacked, punched someone on May 23; then was stopped by cop on May 30, lied to cop; since his last offense of lying is not serious or violent; court can’t commit him to DJF :)]
In re D.B. published C067353 COA 3d October 31, 201
For purposes of Welfare and Institutions Code Sec. 733(c)–providing that a juvenile who is adjudged a ward of the court can be committed to the Division of Juvenile Facilities only if “the most recent offense alleged in any petition and admitted or found to be true by the court is…described in” Sec. 707(b) or Penal Code Sec. 290.008(c)–the most recent offense is the one that most recently occurred, so the fact that most recent petition containing an allegation found true by the court alleged offense described in Sec. 707(b) did not render juvenile subject to DJF commitment.