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https://www.courtlistener.com/api/rest/v3/opinions/8482613/ | Filed 11/9/22 P. v. Garcia CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H046635
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. B1793599)
v.
HECTOR GARCIA et al.,
Defendants and Appellants.
Defendants Hector Garcia and Blanca Torres appeal from judgments entered after
separate juries in a joint trial found them guilty of committing sexual offenses against a
four-year-old child. The trial court sentenced Garcia to 80 years to life in prison and
Torres to 55 years to life in prison.
Between their two appeals, Garcia and Torres raise 17 claims of error. Stated
broadly, they separately or jointly contest the trial court’s admission of evidence
(including evidence about child sexual abuse accommodation syndrome (CSAAS)), the
CALCRIM No. 1193 jury instruction on the use of CSAAS evidence, the prosecutor’s
statements in rebuttal argument about the reasonable doubt standard, the cumulative
prejudice of the alleged errors, and various aspects of their sentences.
For the reasons explained below, we reject Garcia’s and Torres’s challenges to
their convictions but vacate their sentences and remand with directions for resentencing.
I. FACTS AND PROCEDURAL BACKGROUND
A. Procedural History
In August 2018, the Santa Clara County District Attorney filed a first amended
information (information) charging Garcia and Torres with eight sex crimes committed
against four-year-old A. Doe on or about and between January 1, 2017, and March 31,
2017.1 The charges comprised two counts of sexual intercourse or sodomy with a child
10 years of age or younger (Pen. Code, § 288.7, subd. (a);2 counts 1–2), two counts of
oral copulation or sexual penetration with a child 10 years of age or younger (§ 288.7,
subd. (b); counts 3–4), and four counts of forcible lewd or lascivious act on a child under
age 14 (§ 288, subd. (b)(1); counts 5–8). Additionally, the information charged Garcia
with misdemeanor false representation of identity to a peace officer (§ 148.9, subd. (a);
count 9).
After the trial court ruled that Garcia’s statement to police about touching A. at
Torres’s direction was admissible only against Garcia, the court empaneled separate
juries to hear the evidence against Garcia and Torres in a joint trial.
In October 2018, Garcia’s jury found him guilty on counts 1–8.3 Torres’s jury
found her guilty of all counts except count 2, on which the jury did not reach a
unanimous verdict. The trial court declared a mistrial on count 2 and dismissed that
count upon a motion of the district attorney.
On December 10, 2018, the trial court sentenced Garcia to consecutive terms of 25
years to life on counts 1 and 2, plus consecutive terms of 15 years to life on counts 3 and
4. The court also imposed stayed terms of 10 years on each of the remaining counts
(counts 5–8), pursuant to section 654. The court ordered payment of various fines, fees,
1
“Doe” is a pseudonym used in the information. We refer to the minor victim by
the first initial of her first name and other witnesses by their first names and initials to
protect their privacy interests. (See Cal. Rules of Court, rule 8.90(b)(4), (10)–(11).)
2
Unspecified statutory references are to the Penal Code.
3
Before trial, Garcia pleaded no contest to count 9 (§ 148.9, subd. (a)).
2
and assessments, including a “Court Security Fee of $320” (§ 1465.8), “Criminal
Conviction Assessment Fee of $280” (Gov. Code, § 70373), and “$129.75 Criminal
Justice Administration Fee to the City of Sunnyvale” (Gov. Code, former § 29550 et
seq.).4 Additionally, on misdemeanor count 9, the court imposed a concurrent 120-day
county jail term and “waive[d] the fees on the misdemeanor.”
On December 17, 2018, the trial court sentenced Torres to 25 years to life on
count 1, plus consecutive terms of 15 years to life on counts 3 and 4. The court also
imposed stayed terms of 10 years on each of the remaining counts (counts 5–8), pursuant
to section 654. The court ordered payment of various fines, fees, and assessments,
including a “Court Security Fee of $280” (§ 1465.8), a “Criminal Conviction Assessment
Fee of $210” (Gov. Code, § 70373), a “$129.75 Criminal Justice Administration Fee to
the City of Sunnyvale” (Gov. Code, former § 29550 et seq.), and two $300 fines, plus
penalty assessments, under section “290.3.”5 Additionally, the court ordered Torres to
submit to a blood test for evidence of HIV (§ 1202.1).
B. Evidence Presented at Trial
1. Prosecution Evidence
A. was born in November 2012, and was four years old at the time of the charged
crimes and five at the time of trial. A.’s 22-year-old mother Maria testified that Torres
babysat A. at Maria’s request about four times between January and March 2017.6 Torres
had an adult daughter, Jessica C., who was Maria’s friend and coworker.
4
We note a discrepancy in the record between the trial court’s oral pronouncement
of a $280 criminal conviction assessment fee and the clerk’s sentencing minutes
reflecting the amount of that fee as “$240.” Specifically, the clerk’s minutes state that
the trial court ordered a “$240” “ICMF” fee, which corresponds (except as to the amount)
to the ordered “Criminal Conviction Assessment Fee of $280” (see Gov. Code, § 70373
[also referred to as a court facilities assessment]).
5
Contrary to the trial court’s oral pronouncement at Torres’s sentencing hearing,
the abstract of judgment and clerk’s minutes state that the court imposed one $300 fine
under section 290.3 and another $300 fine under section 290.85.
6
Unless otherwise indicated, all dates were in 2017.
3
During the period that Torres babysat A., A.’s grandmothers also watched her. In
addition, Maria had two roommates, Mary and Miguel. Maria had an intimate
relationship with Miguel for about four or five months while they roomed together.
Neither Mary nor Miguel watched A., but Mary did sometimes drop A. off at her
grandmothers’ homes. Maria did not notice anything wrong with or unusual about A.’s
vaginal area or private parts during the period that Torres babysat A. Further, Torres did
not say anything to Maria about A. having redness on her private parts or having said that
Miguel had licked her private parts. Once, Torres contacted Maria and asked when she
(Torres) would see A. again. Maria thought this was strange.
Maria told A. weekly that no one (except her mother and her grandmothers) was
allowed to touch her private parts. Maria repeatedly said this to A. because Maria had
been sexually molested around age four, but Maria never told A. about that molestation.
One night, around July 19, as Maria and A. were lying down getting ready for bed
and acting playfully, A. moved Maria’s hand toward her (A.’s) vagina area and made a
humping motion. Maria asked A. why she was doing that. A. said, “ ‘I don’t know.’ ”
Maria continued questioning A. about what she had done and asked “ ‘who showed you
this?’ ” Eventually, Maria said to A. “ ‘This isn’t a game. You need to tell me what’s
going on.’ ” A. responded that Torres (whom she called “Chewbanca”) had touched her
in her vagina area.7 A. said the touching happened about two times and she had told
Torres to stop but Torres did not want to “ ‘because [Torres] liked it.’ ”8 A. said she was
7
Maria testified that A. called her “privates” her “colita,” meaning “the whole
area, the whole vagina and bump (phonetic) area.” Maria further said that A. sometimes
referred to the entire area as her “butt.” Additionally, A. testified that her “ ‘colita’ ” is
“the part where [she] go[es] pee.”
8
The trial court allowed the “ ‘because [Torres] liked it’ ” statement into evidence
over Torres’s objection and motion to strike it as speculation. The court instructed the
jury that that statement was admitted not for its truth but to explain the witness’s (i.e.,
Maria’s) conduct.
4
scared, and she sounded sad to Maria. Before this disclosure, Maria had not seen A. act
in any way that made Maria suspicious that someone had touched A.
The next day (July 20), Maria contacted the Sunnyvale police. When Maria told
A. that they were going to see the police and the police would ask her some questions, A.
asked why. Maria explained that the questions would be about what A. had disclosed
regarding Torres. A. again said she was scared. A. then mentioned Torres’s boyfriend
(whom she later identified as Garcia) and said “that she saw something in a w[ie]ner-like
figure.” A. also said that Garcia had touched her and Torres was holding a light when he
did that. Maria testified that A. said Garcia had put the “hotdog” in her vagina area.
Additionally, Maria had previously told the police that A. said “ ‘[Garcia] put this soft
thingy, put it in my butt.’ ” Maria asked A. why she had not talked about this situation
earlier. A. said she was scared but no one had threatened her.
On August 10, A. was medically examined and interviewed by a police detective.
Physician assistant Mary Ritter conducted the sexual abuse examination. The exam did
not reveal anything remarkable, and Ritter did not find any signs of trauma or
penetration. Ritter explained that, given the timing of the alleged events, an injury from
penetration could have healed by the time of her examination. Ritter also said that her
findings could be consistent with either sexual abuse or no sexual abuse.
Detective Elizabeth Digiovanna interviewed A. on August 10. A. told Detective
Digiovanna that Torres had touched her butt “ ‘cause [her] butt was red.” A. also
described “a big [] thing that his butt rode. [¶] . . . [¶] It’s like a [] hot dog. But more
softer [sic]. [¶] . . . [¶] It was so squishy.” Torres touched A.’s butt after A. said “don’t
touch my butt. My mom will get mad.” Torres touched A. with “the hot dog thing, more
squishier [sic] and more like saltier.” The first time Torres touched A., “[s]he laid [A.]
down and that hurt a lot. [¶] . . . [¶] She was pushing it like too hard. [¶] . . . [¶] And
that [] hurt a lot.” When asked to talk about “the second time,” A. responded, “Because
5
she want to [sic] ‘cause she likes it.” When asked more directly if there was another time
that Torres had touched her, A. said, “No.”
A. told Detective Digiovanna that Garcia had touched her butt. A. said Garcia had
something growing in his butt and “she put it inside . . . . It was tickling me. And I feel
it. [¶] . . . [¶] It’s like something soft.” Garcia put something like a “corndog” (which
grew from his groin area and was “slimy” with a “blanket”) in her butt. Torres was
present at the time and used a light on her phone. A. further reported that Torres and
Garcia took her to a “car house.” There, A. “was laying down [in the bed], ‘cause
[Torres] wanted to touch [A.’s] butt.” A. said Torres did not touch her butt every time
that she had gone to Torres’s home.
On August 15, Detective Digiovanna and Detective Ruben Cortez facilitated a
recorded pretext phone call between Maria and Torres. During the call, Maria told Torres
that A. had said Garcia “showed her some things and he touched her in an inappropriate
place.” Torres responded, “Yes Maria, do you remember that one time I . . . had told you
that I wanted to talk with you. I told [] Jessica, the little girl . . . [¶] . . . [¶] . . . I told
you that I wanted to talk with you because I would see that the little girl, her behavior
was not right.” Torres further said that Garcia was not present while she babysat A., she
never left A. alone, and the only time Garcia saw A. was when they once picked him up
at work and went to get ice cream. Torres also said A. had mentioned a man named
Miguel and had said that Miguel did something to her with his mouth.
After the pretext call, Maria and Torres met in a restaurant parking lot and the
police recorded their conversation. Torres denied taking A. to her RV. Torres said that
she would help Maria investigate the situation and find Garcia, who was homeless and
had last been living in his vehicle behind a supermarket. She also said that she had
thought about calling social services about what A. said to her but did not do so because
she did not want to be a bad person.
6
On August 17, Detective Digiovanna met with A. and showed her a photograph of
Garcia. A. identified Garcia as Torres’s boyfriend. When asked to talk about him, A.
said, “He just put that . . . hot dog in my butt, and she – he put it right now.” A. further
said that Torres “touched [] my butt the first time. . . . The first time when he touched my
butt. [¶] . . . [¶] The first time, when my mom take me there, the first time. . .[] he
touched my butt. [¶] . . . [¶] ‘Cause he wanted to.”
The police arrested Garcia and Torres on August 17. Detective Cortez
interviewed Garcia. A video of the interview was played for Garcia’s jury (but not
Torres’s jury). In the interview, Garcia said that he recalled Torres watching A. about
twice, once at Torres’s apartment and then at a house that had an RV parked in the
backyard. Garcia said the first time Torres watched A., A. woke him up while naked
(after Torres had bathed her), tried to put makeup on him, and wanted to kiss him on the
mouth. A. also wanted to touch his penis and touched herself.
Garcia said that he and Torres had sex while A. was in the bedroom; they thought
A. was asleep. Garcia and Torres “play[ed] around with the girl,” and he looked at A.’s
vagina because it was “chafed.” Torres told Garcia to play with and touch A. “like a
woman.” Torres held her phone and watched as Garcia touched A., including on her legs
and buttocks. Garcia also said that he slightly touched A.’s vagina “almost by accident”
with the back of his hand. Garcia repeatedly denied that he had sexually abused or
penetrated A. Garcia also told Detective Cortez that Torres might have been interested in
children sexually because of the pornography she watched.
Detectives Digiovanna and Cortez interviewed Torres on August 17. Torres
recalled watching A. three times at her apartment and initially said Garcia was not
present any of these times. Torres said that the first time she watched A., A. had a
burning sensation when she urinated, so Torres gave her a bath. Torres contacted Maria
to get clean clothes for A., but when Maria said she could not bring any, Torres bought
A. new underwear. Torres said that she noticed A.’s “ ‘parts’ ” were red, and A.
7
demonstrated a licking motion, saying Torres had to lick her to make it feel better.
Torres did not tell the detectives that she had put Desitin cream on A. or had used a light
on her phone to guide A. to the bathroom.
During the interview, Torres initially said A. had mentioned the name Miguel, but
A. did not say he had abused her. Later in the interview, Torres mentioned Miguel and
Mary as people who might have abused A., and that Miguel and Mary showed A.
pornographic movies. A. told Torres that she (A.) could perform the acts she had seen in
the movies, and she made a grinding motion on a stuffed animal. A. also said that Miguel
put something inside her and it hurt because she is too little. In addition, Torres said she
had told her daughter Jessica and friend Ana H. about Miguel.
Torres made clear to the detectives that she thought Maria was an irresponsible
mother who drank and smoked marijuana in front of A., put A. around many men, and
did not take care of her or keep her safe. Torres said that when she told Maria about A.’s
behaviors, Maria did not care. Torres also said she did not contact child protective
services because she did not know exactly what had happened to A.
Torres explained that Maria made up this story of abuse and might have been mad
at Torres over an unrelated $300 rental agreement fee that Maria owed her. Torres
believed that Maria had coached A. to say things. Torres said she was mad at Maria
because she would not listen to Torres. Torres also said she was upset with Maria
because Maria did not buy medicine for A. when she needed it and Torres had to buy A.
underwear.
After Torres eventually admitted to the detectives that Garcia had been around A.,
Torres told the detectives that A. was curious about Garcia, wanted to play with and be
around him, sat on his lap, and pretended to put makeup on him. Torres denied touching
A. inappropriately and said she and Garcia were never alone with A. in Torres’s RV.
Torres also denied photographing A., but said she no longer had the phone she had at the
time she babysat A. because it had been stolen.
8
A. testified at trial that Torres had “touched [her] colita” and Garcia “had a little
thingy on his colita [that] he put in [A.’s] colita.” A. described the “thingy” or “little
weenie” as long and feeling “weird and wet.” Torres held Garcia’s weenie and “put it on
[A.’s] colita” while A. was on the bed in Torres’s bedroom. A. touched Garcia’s weenie
and it felt wet and hot. Garcia held up a light on Torres’s phone for Torres to see. The
touching made A. feel mad and sad.
Torres also touched A.’s colita in a “camping car,” which made A. feel “very, very
mad.” Torres had said Garcia was “gonna get the little weenie thing to touch [A.’s]
colita. And [A.] said -- ‘I wanna tell my mom’ -- but [Torres] said, ‘Don’t tell her.’ But
[A.] just told her.”
When asked by the prosecutor if there was anything else Garcia had done that A.
did not like, A. testified that Torres “said to go to [Garcia] and rub some soap on the little
weenie thing.” Torres gave A. the soap and told her to “rub it and get on him” like
“getting on the chair.” As this was happening, Garcia was “[r]elaxing and laying down.”
This made A. feel “[v]ery weird and sad and mad.” A. also testified that Torres once
bought her some toy makeup that she put on her face. A. did not put any makeup on
Garcia.
A. testified that Miguel never touched her and she never told Torres that Miguel
had put his tongue on her private parts.
On cross-examination, A. acknowledged that she had previously testified about
Torres putting cream on her colita.9 A. remembered having a burning sensation in her
colita, but it did not hurt. A. said that Torres had touched her “like, three times.” After
first stating that Torres “[m]aybe” had cream on her hand when she touched her, A.
testified that Torres did not put any cream on her. A. also remembered previously
9
During the prosecution’s case in chief (and upon stipulation of the parties), A.’s
preliminary hearing testimony was read to the jury. In that testimony, A. said Torres had
touched her colita one time and Garcia had touched her colita one time.
9
testifying that Garcia had touched her on the inside of her colita. A. testified that she had
said this because defense counsel told her that and she was just asking if that was the
right answer. In addition, A. admitted that she had previously testified that Garcia
touched her with his hand. She explained that she had said that because she was
embarrassed to say that he had touched her with his penis, so she “pretended” and lied.
Clinical psychologist Dr. Blake Carmichael testified as an expert on child sexual
abuse accommodation syndrome (CSAAS).10
2. Defense Evidence
Torres testified on her own behalf in front of both juries. Torres said she did not
observe Garcia touch A. in any inappropriate way, and she did not see or take part in any
inappropriate behavior with Garcia and A. Torres further testified that she never left A.
alone with Garcia “except to go to the bathroom or the kitchen.” Torres also denied
asking Maria to bring A. over to her home.
During the period that Torres watched A., Torres lived in an apartment with her
two children and another family that included Ana H., her husband, and three children.
The first time Torres watched A., Maria dropped A. off at the apartment in the evening.
Garcia arrived sometime later that night. When A. used the bathroom, A. said she had a
burning sensation and was not able to urinate. Torres looked at A.’s private parts and
they were “very irritated, reddish.” Torres bathed A. and asked Ana for some of her
Desitin cream. As Torres was drying A. off, A. made a movement with her tongue and
said “if [Torres] licked her the way [her mother’s boyfriend] Miguel did, then she would
be able to feel better.” Torres applied cream over the surface of A.’s private parts.
Torres did not insert her finger inside A.’s vaginal area. In the past, Torres used Desitin
cream the same way with her own children and when she worked at a child daycare
10
We discuss Dr. Carmichael’s testimony post, in our discussion of the claims for
relief (see part II.A.1.).
10
facility. Because Maria had not included any underwear in the clothes that she left with
Torres, Torres went to a store to buy A. underwear.
Later, after Garcia left the apartment, Torres and A. went to Torres’s bedroom.
While A. was playing with stuffed animals under a blanket, Torres noticed A. making
“strange movements on top of one of the stuffed animals.” When Torres asked A. about
this, A. “seemed slightly embarrassed” and said she was doing it “ ‘because Mary and
Miguel, that’s what I see them do.’ ” After A. and Torres slept some, A. asked to use the
bathroom. Torres turned on the light on her cell phone to guide A. to the bathroom.
Torres asked A. about how her private parts felt. A. said she felt better, and Torres
decided to apply more cream to A.
In the morning, when Maria came to pick A. up, Torres told Maria what A. had
said and done, informed Maria of the names A. had mentioned, asked who those people
were, and told Maria about A.’s redness. Maria responded that A. “was trippin’.”
Later, Torres decided to talk to her daughter Jessica and roommate Ana. Torres
told Ana about what A. had said and done and asked for Ana’s advice. Torres thought
about reporting the situation, but Torres did not contact the police or child services
“[b]ecause there were many things [Torres] wasn’t sure [about].”
Torres watched A. on three other occasions. During the fourth (final) occasion,
Torres, Garcia, and A. went from Torres’s apartment to her daughter’s house (where the
RV was parked). Torres went inside the RV for “[s]econds” to retrieve a sweater for A.,
but Torres did not take A. inside the RV.
Torres denied filming or taking pictures of A. Torres admitted that she was
untruthful when talking to Maria in August 2017 about Garcia’s whereabouts and the
contact she (Torres) had with him. Torres explained that she did not know what was
going on, did not think Garcia had touched A., and wanted to talk to him. Torres later
confronted Garcia about the abuse allegations and believed what he said to her.
11
On cross-examination, regarding the first time she babysat A., Torres said that she
had purchased “little girl’s makeup” for A. and A. tried to put the makeup on Garcia in
the kitchen. Torres denied that she and Garcia had sex while A. was in the bedroom. She
also denied telling Garcia to play with A., give her a spanking, or touch her like a
woman. Torres admitted to having watched pornography for some time (including on the
cell phones recovered by the police) and that some of the pornography included three
participants. Torres said she had watched pornography alone and with Garcia.
Garcia did not testify before either jury.
Torres’s daughter Jessica C. testified before both juries. She corroborated that on
the day after Torres first watched A., Torres relayed a story about A. “sticking out her
tongue,” “asking to [] kiss” Torres, and “just do[ing] [] weird movements with her
mouth, saying that someone showed her how to do that.” Torres also asked Jessica if a
name that started with an “ ‘M’ ” sounded familiar. Jessica suggested the name Miguel,
and Torres also mentioned Mary. Torres asked if she should make a report to child
protective services or the police. Jessica told Torres to “ ‘just leave it alone’ ” because
Maria “would just take it the wrong way,” “wouldn’t really see the seriousness in it,” and
“might just even ignore it.”
On cross-examination, Jessica acknowledged telling the police that Torres did not
say “ ‘that it was Miguel.’ ” Jessica also admitted talking to Torres (before she had
watched A.) about Maria and Miguel and Jessica’s feeling that A. did not act
appropriately around men. Jessica recalled Torres saying that Mary taught A. about
kissing and A. had a rash, so Torres gave her a bath and put rash cream on A.
Torres’s friend and roommate Ana H. testified before both juries. She recalled
Torres asking if she could use the bathroom while she was watching a young girl. Ana
did not remember if Torres asked to use her cream. Ana recalled that the next day,
Torres said that she thought something was going on with the girl (including that the girl
had been touched) and was concerned about the girl’s behavior. Ana told Torres that if
12
she wanted to do something, she should “ ‘call child protective services or stay away
from that child because you are gonna get in trouble or you might get blamed for it.’ ”
Torres mentioned the name Miguel when telling Ana about what the girl had said, and
Torres said she had given the girl a bath because she had some redness or itchiness.
On cross-examination, Ana expanded on what Torres had relayed about the girl:
“[T]he little girl would tell her that this guy would do something in her butt with his
tongue and that she was being touched and that she would like to sit on the men’s, [sic]
and that was concerning for [Torres].” Torres also had said the girl “would move her
tongue in . . . weird ways, that she didn’t understand . . . why -- a little girl should not be
doing that kind of stuff.”
Dr. Bradley McAuliff testified (before both juries) as an expert on child
suggestibility and forensic interviews of children. Dr. McAuliff described suggestibility
as “looking at the accuracy of memory or the accuracy of a witness’s report.” He
discussed the academic study of suggestibility and the factors that relate to or influence
child suggestibility, including direct repeated questioning, “interviewer authority,”
“cross-contamination,” “source monitoring,” and the child’s age. Dr. McAuliff stated
that “the general pattern in suggestibility is that with preschoolers, . . . kids age[d] zero to
five, they’re the most suggestible, which means they’re most easily influenced” by the
factors he described. Dr. McAuliff addressed the potential for suggestibility in the
context of various hypotheticals based on circumstances similar to those in this case.
On cross-examination, Dr. McAuliff stated his concern that A.’s disclosure of
molestation in this case was not a “spontaneous disclosure,” but rather “prompted by
[Maria], who had prior experiences, [and] who was insistent on asking questions.” He
also noted that Torres had described nonsexual touching (i.e., the use of Desitin cream)
and A. could have made “an inference based on the context and the way these questions
[were] being asked [by Maria] that this was a bad thing and that somehow [Torres]
enjoyed it.” Dr. McAuliff said he had concerns about how A. knew that Torres “liked it.”
13
Regarding source monitoring, Dr. McAuliff said he was concerned about “the
conversations [A. had] with [her] mom; the way mom questioned [A.]; the fact that
[Torres] said there was nonsexual touching of the vagina; and the fact that [A.] had
disclosed prior abuse” (i.e., A.’s alleged statements to Torres about Miguel). Dr.
McAuliff also said Detective Digiovanna’s interview of A. was “a good forensic
interview.”
Psychologist Dr. Hy Malinek testified (before Garcia’s jury only) as an expert in
psychology, the diagnosis of mental disorders, and the determination of whether an
individual has a predisposition or inclination to commit sex offenses against children.
Dr. Malinek had interviewed Garcia, administered personality tests to him, and reviewed
case material and Garcia’s criminal history report. Based on the totality of the
information available to Dr. Malinek, he concluded that Garcia was not predisposed to
commit sexual offenses and “cannot be diagnosed with pedophile or antisocial
personality disorder.” Dr. Malinek noted that Garcia had no prior charges or convictions,
had “no other reports that he is into children sexually,” had been married, had four
children, and had maintained a sexual relationship with an adult woman for three years.
According to Dr. Malinek, “All these are not marks of pedophiles.” Additionally, the
personality testing showed Garcia to be a “passive, kind of dependent kind of guy, who is
inclined to be compliant, . . . tends to be self-effacing, tends to be . . . more inflexible,
[and a] more psychologically naïve kind of guy.” Dr. Malinek’s “overall impression” of
Garcia was that he allowed Torres to make decisions for him, and he was dependent on
her.
Detective Matthew Hutchison testified (before Garcia’s jury only) that he
interviewed Torres on August 18 (the day after her arrest and interview with Detectives
Digiovanna and Cortez). Hutchison played for Torres a portion of Garcia’s August 17
interview in which he had admitted touching A. at Torres’s direction. As Torres watched
14
the video, her hands shook, she held her head down low, and covered her eyes with her
hand. Torres also repeatedly said “ ‘Oh. My God’ ” and called Garcia “ ‘stupid.’ ”
3. Stipulations
The district attorney and Garcia stipulated to the following (before Garcia’s jury
only):
“Hector Garcia’s phone that was found on his person when he was arrested had
four deleted commercial adult pornography videos in the deleted portion of the phone.
[¶] It was undetermined when these videos were originally viewed. Two of the videos
were deleted on August 12th, 2017, and two of them were deleted on August 16th of
2017.”
“Torres had on both of her phones, the pink phone found in the RV, and the other
phone found in her car, . . . [a] total [of] over 900 entries in her web browser history for
all types of commercial adult pornography, some with titles including ‘incest’ and ‘young
teen pornography.’ ”
II. DISCUSSION
Torres and Garcia raise 17 claims of error. Garcia and Torres jointly argue:
(1) the trial court erred by admitting Dr. Carmichael’s testimony about CSAAS; (2) the
trial court erred by allowing Dr. Carmichael to testify about certain case-specific
hypothetical scenarios; and (3) the trial court erred by instructing the juries with
CALCRIM No. 1193 (CALCRIM 1193).
Torres separately argues: (1) the trial court erred by admitting evidence that A.
made a statement that Torres touched A. because she (Torres) liked it; (2) the alleged
errors were cumulatively prejudicial; (3) there is insufficient evidence to support the trial
court’s order that she submit to an HIV test; (4) one of the two $300 fines imposed under
section 290.3 is unauthorized; (5) the abstract of judgment should be amended by striking
the 10-years-to-life sentences listed for counts 5–8; (6) the $129.75 criminal justice
administration fee should be vacated in light of Assembly Bill No. 1869 (2019-2020 Reg.
15
Sess.) (Assembly Bill 1869); (7) the matter should be remanded for resentencing due to
recent changes to section 654 made by Assembly Bill No. 518 (2021-2022 Reg. Sess.)
(Assembly Bill 518); and (8) recent changes to section 1170 made by Senate Bill No. 567
(2021-2022 Reg. Sess.) (Senate Bill 567).
Garcia separately argues: (1) the prosecutor improperly stated in rebuttal that
Garcia had failed to create a reasonable doubt and mischaracterized the reasonable doubt
standard; (2) the alleged errors were cumulatively prejudicial; (3) the $129.75 criminal
justice administration fee should be vacated in light of Assembly Bill 1869; (4) the $280
criminal conviction assessment fee should be reduced; (5) the matter should be remanded
for a new sentencing hearing due to recent changes to section 654 made by Assembly Bill
518; and (6) the matter should be remanded for a new sentencing hearing due to recent
changes to section 1170 made by Senate Bill 567.
We will first address Torres’s and Garcia’s joint claims challenging the admission
of Dr. Carmichael’s testimony about CSAAS and the related jury instruction. We next
will consider their separate arguments concerning the admission of other evidence, the
prosecutor’s rebuttal argument, and cumulative error. Finally, we will turn to their
various sentencing claims.
A. CSAAS Evidence and CALCRIM 1193
1. Background
Pretrial, the prosecutor moved in limine to admit CSAAS evidence. The
prosecutor noted that A. had “delayed disclosure for at least 4 months” and asserted that
the CSAAS evidence was relevant and probative. The prosecutor stated that an expert
witness could explain CSAAS “to provide the jurors a better understanding why victims
of child sexual abuse may be fearful and reluctant in disclosing sexual abuse and how
that fear and reluctance may cause delay in reporting such abuse. The expert will also be
able to assist the jury to understand how such abuse may lead to an environment of
16
secrecy, helplessness, entrapment and accommodation, and retraction. The expert will
explain how such abuse affects how a child discloses such abuse.”
At a pretrial hearing, Garcia’s defense counsel (joined by Torres’s counsel) argued
there was no “significant delayed disclosure . . . attributable to any kind of
accommodation on the part of the victim” and no indication that A. feared either Garcia
or Torres. Torres’s defense counsel added that CSAAS was “outdated,” in that it arose
“when people had certain beliefs about how a child victim should act.”
The trial court granted the prosecutor’s motion, ruling that the CSAAS evidence
was generally relevant and, “subject to relevance objections and there being some
connection to the allegations in this case, it is admissible to explain things like delayed
disclosure to the jury.” The court advised defense counsel to raise any necessary
objection during the expert’s testimony.
At trial, Dr. Blake Carmichael testified as an expert on CSAAS. He explained that
CSAAS was fashioned in the early 1980s to help educate people, explain the
misconceptions and context in which child sexual abuse can occur, and lay a foundation
for understanding “how something like this could occur,” including the reactions of the
abused child or an involved adult “that might not make sense otherwise, but we know
these things do happen when kids have been sexually abused.” Dr. Carmichael was not
aware of the circumstances or the charges in this case and said that CSAAS is not used to
diagnose children or determine whether they are telling the truth about sexual abuse. He
further said that there is “no checklist,” “interview,” or “method to determine whether or
not a child was sexually abused.”
Dr. Carmichael described the five “topics” included in CSAAS, namely, secrecy,
helplessness, entrapment or accommodation, delayed and unconvincing or inconsistent
disclosure, and recantation or retraction.
Regarding delayed and unconvincing or inconsistent disclosure, Dr. Carmichael
said that “what we know from decades of research is that most kids don’t tell right
17
away.” He said further that around 20 percent or less of children tell “quickly,” within
the first week or two, while 40 to 60 percent do not tell within the first year. When
children disclose, it can be unconvincing because they often do not give consistent
details, do not give the information the same way each time, or might tell different details
to different people based on what they are comfortable telling each person or the context
of the conversation. A common misconception regarding unconvincing disclosures is
that a child will cry or be overly emotional when disclosing abuse. Rather, research done
with sexually abused children showed that “about 80 percent of those kids were very
flat. . . . They didn’t appear tearful. They didn’t cry.” Furthermore, children (especially
younger children) might not have “the language base or experience” to describe certain
acts or body parts in a clear, non-confusing manner.
Over defense objections, Dr. Carmichael addressed some hypothetical questions
posed by the prosecutor. The first hypothetical described a delayed disclosure under
circumstances akin to those in this case, including that the child had previously been
informed by her mother about proper and improper touching, was not threatened by the
abuser, and was scared to disclose the abuse because her mother would get mad. Dr.
Carmichael said that the child’s behavior in this hypothetical scenario was not surprising
to him because the child might feel responsible for the abuse and fear getting in trouble
for being a part of it. Dr. Carmichael further explained that “touch is a very natural part
of relationships” and a child might not recognize when touching becomes inappropriate.
He summed up by saying, “So there’s a lot of reasons why younger kids may not tell
about being touched inappropriately or even be unaware of it.”
Another of the prosecutor’s hypothetical questions addressed incremental
disclosure, presenting a scenario in which a sexual abuse victim discloses information to
a parent about abuse by one person and, the next day, states further that another person
also was involved in the abuse. Dr. Carmichael testified that he would not be surprised
by this scenario because “it may not be relevant to that child to share about a different
18
abuse or a different situation.” When the prosecutor followed up with a hypothetical in
which the child had been molested simultaneously by two people but initially disclosed
information about only one molester, Dr. Carmichael explained that “there are core
details and peripheral details,” and the fact that the touching happened (i.e., a core detail)
“is maintained or maybe shared first.”
The prosecutor asked Dr. Carmichael if he would be surprised if a child claimed
“they were touched with a hand and then also touched with a penis, but they initially
disclosed that they were just touched with the hand by one perpetrator. They don’t
disclose the penetration part initially.” Dr. Carmichael said he would not be surprised by
this situation because most people do not go fully into the “salacious” or “most traumatic
details” of a disturbing event when they first talk about the event. “It’s not expect[ed
that] someone [would] divulge everything all at once.”
Additionally, Dr. Carmichael said he would not be surprised that a child would
willingly go back to an abusive caretaker for a second or third time after abuse because
children rely on adults for care and protection and “might not be able to avoid going to
[the abuser] because they’re told they have to go.” He further testified that the child
might enjoy certain aspects of the relationship with the caretaker or the caretaking
environment.
In objecting to the prosecutor’s hypothetical questions, Garcia’s counsel and
Torres’s counsel cited People v. Jeff (1988) 204 Cal.App.3d 309 (Jeff) and argued that
the case-specific hypotheticals could not properly be used for the “purpose of proving
that a molest occurred” and were being used here “to support the allegations of the
molest.” Garcia’s counsel stated that the defense objection was limited to the use of
hypotheticals, not the expert’s testimony more generally. The trial court overruled the
defense objection, stating that the use of hypotheticals generally is proper.
Furthermore, Garcia’s counsel and Torres’s counsel said they had no objection to
the trial court instructing the juries regarding their consideration of the CSAAS evidence
19
and, more generally, the expert witness testimony. But Garcia’s counsel said he did not
“think that will cure the problem,” while acknowledging “it’s a step in the right
direction.”
During Dr. Carmichael’s direct testimony, the court instructed the juries with a
version of CALCRIM 1193 and with CALCRIM No. 332 (regarding expert witness
testimony). The court repeated these instructions when finally (and separately)
instructing the juries after the close of evidence. The final instruction with CALCRIM
1193 read as follows: “You have heard testimony from Dr. Blake [Carmichael] regarding
child sexual abuse accommodation syndrome. [¶] Dr. [Carmichael]’s testimony about
child sexual abuse accommodation syndrome is not evidence that the defendant
committed any of the crimes charged against [him/her]. [¶] You may consider this
evidence only in deciding whether or not [A.] Doe’s conduct was not inconsistent with
the conduct of someone who has been molested, and in evaluating the believability of her
testimony.”
In separate closing argument to each jury, the prosecutor made numerous
references to Dr. Carmichael’s testimony.
2. Challenge to CSAAS Expert Testimony
In the first of three claims challenging the CSAAS evidence and CALCRIM 1193,
Torres contends the trial court erred by admitting Dr. Carmichael’s testimony. She
asserts the CSAAS evidence was not probative and was unduly prejudicial. She argues
that while the evidence is intended to address misconceptions the jurors might have had,
nothing in the record establishes whether people today still hold such misconceptions.
She also asserts that the evidence was “likely more misleading than helpful,” raises
“grave concerns” regarding its scientific validity and underlying assumptions, and was
prejudicial under People v. Watson (1956) 46 Cal.2d 818 (Watson), because “[A.]’s
credibility was paramount,” Dr. Carmichael “effectively told the jury that Torres
molested” A., and the prosecutor relied heavily on the CSAAS evidence in her closing
20
argument. In addition, Torres contends generally that CSAAS intrudes on the jury’s
determination of witness credibility, is not probative of abuse, and does not assist the jury
in determining whether allegations of abuse are true. Lastly, Torres claims that the
admission of CSAAS evidence violated her due process right to a fair trial. Garcia joins
Torres’s argument in full.
Expert witness testimony is admissible if it is “[r]elated to a subject that is
sufficiently beyond common experience that the opinion of an expert would assist the
trier of fact” (Evid. Code, § 801, subd. (a)), and is “[b]ased on matter (including [the
expert witness’s] special knowledge, skill, experience, training, and education) perceived
by or personally known to the witness or made known to [the witness] at or before the
hearing, whether or not admissible, that is of a type that reasonably may be relied upon
by an expert in forming an opinion upon the subject to which [the witness’s] testimony
relates.” (Id., subd. (b).) We review a trial court’s decision to admit expert testimony for
abuse of discretion. (People v. McAlpin (1991) 53 Cal.3d 1289, 1299 (McAlpin).)
As Torres acknowledges, CSAAS evidence is routinely admitted in sexual abuse
cases in California. “Trial courts may admit CSAAS evidence to disabuse jurors of five
commonly held ‘myths’ or misconceptions about child sexual abuse. [Citation.] While
CSAAS evidence is not relevant to prove the alleged sexual abuse occurred, it is well
established in California law [that] CSAAS evidence is relevant for the limited purpose
of evaluating the credibility of an alleged child victim of sexual abuse.” (People v.
Lapenias (2021) 67 Cal.App.5th 162, 171 (Lapenias); see also McAlpin, supra, 53 Cal.3d
at pp. 1300–1301; In re S.C. (2006) 138 Cal.App.4th 396, 418; People v. Wells (2004)
118 Cal.App.4th 179, 188; People v. Patino (1994) 26 Cal.App.4th 1737, 1744–1745
(Patino); People v. Housley (1992) 6 Cal.App.4th 947, 955–956; People v. Harlan (1990)
222 Cal.App.3d 439, 449–450; People v. Stark (1989) 213 Cal.App.3d 107, 116–117.)
In light of this precedent, we conclude the trial court here did not abuse its
discretion when it ruled pretrial that the prosecution’s proposed expert testimony on
21
CSAAS was relevant and admissible. (See Lapenias, supra, 67 Cal.App.5th at p. 172,
Patino, supra, 26 Cal.App.4th at pp. 1744–1745; People v. Perez (2010) 182 Cal.App.4th
231, 245.)
Because we discern no error by the trial court in admitting Dr. Carmichael’s
testimony about CSAAS generally, we need not address Torres’s related argument that
that testimony was prejudicial under Watson.11 Moreover, we decide that
Dr. Carmichael’s testimony about CSAAS did not violate Torres’s or Garcia’s
constitutional right to due process. (See Lapenias, supra, 67 Cal.App.5th at p. 174;
Patino, supra, 26 Cal.App.4th at pp. 1746–1747.)
3. Challenge to Case-Specific Hypothetical Questions
Garcia and Torres each contend that the trial court erred by allowing
Dr. Carmichael to opine on the hypothetical questions posed by the prosecutor.12 Garcia
argues that the hypotheticals exceeded the proper scope of CSAAS expert testimony,
violated Garcia’s constitutional right to be convicted based on reliable evidence, and was
prejudicial under any standard of prejudice. Similarly, Torres argues that even if the
CSAAS evidence was generally admissible, the hypothetical questions and Dr.
Carmichael’s responses were not admissible, violated Torres’s constitutional right to a
fair trial, and were prejudicial regardless of the applicable harmlessness standard. As
they did in the trial court, Garcia and Torres rely in part on Jeff, supra, 204 Cal.App.3d
309 as support for their arguments.
“ ‘Generally, an expert may render opinion testimony on the basis of facts given
“in a hypothetical question that asks the expert to assume their truth.” ’ ” (People v.
11
Neither Torres’s defense counsel nor Garcia’s defense counsel argued at trial
that the trial court should preclude Dr. Carmichael’s testimony under Evidence Code
section 352. We do not understand Torres’s argument on appeal regarding the prejudice
resulting from the purportedly erroneous admission of Dr. Carmichael’s testimony to
include a separate claim that the prosecutor committed error when discussing the CSAAS
evidence in her closing arguments.
12
In her briefing, Torres also joins Garcia’s argument on this claim.
22
Vang (2011) 52 Cal.4th 1038, 1045; see also People v. Sanchez (2011) 63 Cal.4th
665, 676–677.) On the other hand, it is improper for an expert to testify about CSAAS in
a manner that directly coincides with the facts of the case. (See People v. Gilbert (1992)
5 Cal.App.4th 1372, 1384; People v. Bowker (1988) 203 Cal.App.3d 385, 394; People v.
Roscoe (1985) 168 Cal.App.3d 1093, 1099–1100.) A trial court has broad discretion with
respect to the admission of expert testimony, and we review a trial court’s rulings for
abuse of discretion. (See People v. Duong (2020) 10 Cal.5th 36, 60; People v. Moore
(2011) 51 Cal.4th 386, 419 (conc. opn. of Kennard, J.).)
In Jeff, two experts for the prosecution testified: The first described the victim’s
symptoms based on interviews with the victim, and the second described child molest
syndrome. The prosecution prefaced the expert testimony in opening statement by saying
that the second expert would tell the jury “ ‘what these symptoms mean.’ ” (Jeff, supra,
204 Cal.App.3d at p. 338.) The prosecution ultimately asked the second expert a series
of hypothetical questions that incorporated “the exact same facts and details” as those in
the allegations against the defendant. (Ibid.) The expert explained that the victim’s
“emotions, fears, and reactions to others are symptoms exhibited by a child molest
victim.” (Ibid.) On appeal, the Jeff court held this evidence was inadmissible because
the expert’s testimony “told the jury that they should accept” as true the victim’s version
of events. (Ibid.)
The expert testimony presented in this case is distinguishable from that in Jeff.
The prosecution did not present any expert testimony based on interviews or
examinations of A. In fact, Dr. Carmichael testified that he did not know any
circumstances of the present case. Although the prosecutor’s hypothetical questions bore
similarities to A.’s behavior as established by prosecution evidence, neither the questions
nor Dr. Carmichael’s responses tracked A.’s conduct so closely that the testimony “told
the jury” it should believe her allegations. (Jeff, supra, 204 Cal.App.3d at p. 338.) By
contrast, Dr. Carmichael testified specifically that CSAAS is “absolutely not” used to
23
diagnose children or determine whether they are telling the truth about sexual abuse. He
further said, “There’s no method to determine whether or not a child was sexually
abused.” Additionally, the trial court instructed the juries on the limited permissible use
of Dr. Carmichael’s testimony. We presume the juries here understood and followed
these instructions. (See People v. Hinton (2006) 37 Cal.4th 839, 871.)
Under these circumstances, we are not persuaded that the prosecutor’s
hypothetical questions and Dr. Carmichael’s responses were impermissible under Jeff or
any other binding precedent. We thus conclude that the trial court did not abuse its
discretion by allowing Dr. Carmichael to opine in response to the hypothetical questions.
Given our conclusion that this testimony was properly admitted, we further decide that
there was no violation of Garcia’s or Torres’s constitutional rights. (See People v. Jones
(2013) 57 Cal.4th 899, 949; Lapenias, supra, 67 Cal.App.5th at p. 174.)
4. Challenge to CALCRIM 1193
Garcia and Torres each contend that the trial court erred by instructing with
CALCRIM 1193.13 Garcia acknowledges that his defense counsel failed to object to this
instruction and described it as a “step in the right direction.” Nevertheless, Garcia urges
us to address the merits of his appellate claim based on several exceptions to forfeiture
and argues alternatively that we should consider the merits of his challenge under the
rubric of ineffective assistance of counsel. As for CALCRIM 1193 itself, Garcia
contends that the instruction misstates California law by effectively allowing the jurors to
consider the CSAAS evidence as circumstantial proof of molestation. He argues further
that CALCRIM 1193 violated his constitutional rights to a jury trial and due process.
Lastly, he asserts that the error was prejudicial under Chapman v. California (1967) 386
U.S. 18 (Chapman) and Watson.
13
In her briefing, Torres also joins Garcia’s argument on this claim.
24
Torres similarly acknowledges that her defense counsel did not object to the trial
court instructing her jury with CALCRIM 1193. She argues, however, that we should
consider her challenge to CALCRIM 1193 based on exceptions to forfeiture and,
alternatively, because her counsel was ineffective for failing to object. Regarding the
merits of her challenge to CALCRIM 1193, Torres claims that the instruction improperly
allowed her jury to consider the “CSAAS evidence to diagnose or profile [A.] as a
molestation victim,” misled the jury by allowing it to use the evidence when considering
A.’s believability, and “offer[ed] only the option to find [A.]’s conduct consistent with
that of a molestation victim.” Torres also contends the flawed instruction was not
otherwise cured by any other instruction. Lastly, Torres argues that CALCRIM 1193
violated her constitutional rights to a jury trial and due process, and the error was not
harmless under Chapman or Watson.
The Attorney General counters that Garcia and Torres forfeited their appellate
claims by failing to object to CALCRIM 1193 at trial, their defense counsel were not
constitutionally ineffective, and there was no violation of Garcia’s or Torres’s
constitutional rights.
Regarding forfeiture, we decide that we can consider the merits of Garcia’s and
Torres’s claims despite their failure to object at trial because they contend the challenged
instruction was an incorrect statement of law and affected their substantial rights under
section 1259.14 (See People v. Grandberry (2019) 35 Cal.App.5th 599, 604; People v.
Gomez (2018) 6 Cal.5th 243, 312; People v. Townsel (2016) 63 Cal.4th 25, 59–60.)
Turning to the merits of the challenge to CALCRIM 1193, “[w]e review a claim of
instructional error de novo. [Citation.] The challenged instruction is considered ‘in the
context of the instructions as a whole and the trial record to determine whether there is a
reasonable likelihood the jury applied the instruction in an impermissible manner.’ ”
14
Because we will address the merits of the challenge to CALCRIM 1193, we
need not address the alternative ineffective assistance of counsel claims.
25
(People v. Rivera (2019) 7 Cal.5th 306, 326.) “We of course presume ‘that jurors
understand and follow the court’s instructions.’ ” (People v. Wilson (2008) 44 Cal.4th
758, 803.)
As Garcia and Torres acknowledge, California courts have upheld CALCRIM
1193 as accurately informing jurors about the limited use of CSAAS evidence and have
rejected various attacks on the instruction’s propriety. (See Lapenias, supra, 67
Cal.App.5th at pp. 175–176 [citing People v. Gonzales (2017) 16 Cal.App.5th 494, 503–
504 & People v. Munch (2020) 52 Cal.App.5th 464, 473–474].) Nevertheless, Garcia
and Torres argue that those decisions did not fully address the alleged flaws in
CALCRIM 1193, specifically the language in the third sentence of the instruction
concerning the victim’s conduct being “ ‘not inconsistent with’ ” that of a molestation
victim.15
We are not persuaded by Garcia’s and Torres’s arguments that the existing
precedent falls short in analyzing the correctness of CALCRIM 1193. We also disagree
with Garcia’s and Torres’s reading of the third sentence of the instruction. As a matter of
logic, that particular conduct by an alleged victim is not inconsistent with having been a
victim of sexual abuse and does not necessarily mean the alleged victim’s conduct is
inevitably consistent with such victimization.
Furthermore, assessing the instruction in light of the entire record, we are not
convinced that there is a reasonable likelihood the juries here applied the instruction in an
impermissible manner. CALCRIM 1193 told the jurors that the CSAAS evidence could
not be considered as evidence that Garcia and Torres “committed any of the crimes
charged against [them].” Thus, the instruction explicitly precluded the use of the CSAAS
evidence to conclude inferentially from A.’s conduct and Dr. Carmichael’s testimony that
15
That sentence reads: “You may consider this evidence only in deciding whether
or not [A.] Doe’s conduct was not inconsistent with the conduct of someone who has
been molested, and in evaluating the believability of her testimony.”
26
Garcia and Torres committed the charged crimes. Relatedly, Dr. Carmichael testified
that CSAAS was not a test to determine the truth of a sexual abuse allegation. In
addition, as discussed, the third sentence of the instruction did not compel a conclusion
that A.’s conduct was consistent with being a victim. Moreover, we are not convinced
that the prosecutor’s comments in closing argument would have caused the juries to
consider the CSAAS in a manner contrary to the trial court’s instruction. The court
instructed the jurors (with CALCRIM No. 200) that they “must follow the law” as the
court explained it, and if the jurors “believe[d] the attorneys’ comments on the law
conflict with [the court’s] instructions, [the jurors] must follow [the court’s] instructions.”
We acknowledge there is a fine line between the impermissible use of CSAAS
testimony to determine guilt and the permissible use of the evidence to evaluate a
victim’s credibility as described in CALCRIM 1193, but California courts have upheld
this distinction. We decline to depart from that precedent under the present
circumstances. In sum, we conclude that the trial court properly instructed the juries with
CALCRIM 1193, and Garcia’s and Torres’s constitutional rights were not violated by
that instruction.
B. Testimony that Torres “ ‘Liked It’ ”
Maria testified that A. said she had told Torres to stop touching her. But Torres
“didn’t want to” stop. When Maria asked A., “ ‘Why didn’t [Torres] stop? What do you
mean?’ ” A. responded “ ‘because [Torres] liked it.’ ” Maria replied by saying
something like “ ‘Okay. We’re just -- we’re gonna go to sleep.’ [¶] And I just -- I was,
like --”
At that point, Torres’s defense counsel interrupted Maria’s testimony saying,
“Your honor, I want to ask the latter part of the previous answer be stricken. It’s
speculation.” The trial court responded, “It will be accepted not for the truth of what was
said but just to explain the conduct of the witness.”
27
The prosecutor next asked if Maria had tried to clarify with A. if Torres had
touched her when “ ‘wiping’ ” her in the bath “or anything like that.” Maria responded,
“I asked [A.] . . . ‘Did she shower you or did she clean you?’ [¶] And [A.] said, ‘No,
[Torres] . . . touched me because she liked it.’ ” Torres’s defense counsel objected
saying, “Again, same objection.” The trial court responded, “Ladies and Gentlemen, the
last part of that answer about ‘she liked it’ is being admitted not for the truth of the words
that were said, but just to explain what the witness then did after that. You are not to
accept it for the truth of the matter, just to explain the witness’s subsequent conduct.”16
On appeal, Torres contends that the trial court abused its discretion by not
excluding the “ ‘she liked it’ ” statements entirely. She argues that the statements were
A.’s inadmissible lay opinion about Torres’s state of mind and were prejudicial under
Watson with regard to the four lewd or lascivious act convictions (§ 288, subd. (b)(1);
counts 5–8).
An out-of-court statement admitted to show its effect on the listener is “not
hearsay because it [is] not admitted for [its] truth.” (People v. Jablonski (2006) 37
Cal.4th 774, 820; see also Evid. Code, § 1200, subd. (a).) Nonetheless, the nonhearsay
purpose of the statement must be relevant to an issue in dispute. (Jablonski, at pp. 820–
821; see also Evid. Code, § 350.) “ ‘Relevant evidence’ means evidence, including
evidence relevant to the credibility of a witness or hearsay declarant, having any tendency
in reason to prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) “A trial court’s decision to admit or
exclude evidence is reviewed for abuse of discretion, and it will not be disturbed unless
there is a showing that the trial court acted in an arbitrary, capricious, or absurd manner
resulting in a miscarriage of justice.” (People v. Wall (2017) 3 Cal.5th 1048, 1069.)
16
Relatedly, after the close of evidence, the trial court instructed Torres’s jury as
follows: “During the trial, certain evidence was admitted for a limited purpose. You
may consider that evidence only for that purpose and for no other.”
28
We discern no abuse of discretion in the trial court’s rulings to allow the jurors to
hear Maria’s testimony about A.’s description of Torres’s behavior. In defending against
the charges, Torres disputed the circumstances of the interaction between Maria and A. at
the time of the disclosure and further challenged Maria’s credibility. In her pretrial in
limine motion, Torres asserted that “[A.] may have been influenced by her mother’s
questioning.” At trial, and in the same vein, Torres asserted that Maria aggressively
questioned A. when she first disclosed the abuse, was, at that time, “thinking about what
happened to her[self] when she was young,” “obviously ha[d] concluded that [Torres]
and [Garcia] ha[d] harmed [A.],” and testified “with her mind set already.” Further,
Torres’s defense counsel urged the jurors to “keep [Maria’s mentality] in mind as you
think about her testimony, and how that may have influenced [A.]”
Given the disputed nature and centrality of A.’s initial disclosure, Maria’s role in
that disclosure, and Maria’s credibility, the trial court acted properly when it overruled
Torres’s objections, rejected her request to strike the “ ‘because she liked it’ ” statements,
and limited the jury’s consideration of those statements. The statements provided
relevant context for the conversation between Maria and A. and had probative value on
the issue of why Maria would act the way she did in the face of A.’s answers and whether
Maria was a believable witness. The statements informed the jury’s analysis of Maria’s
conduct both during the disclosure itself and later when she contacted the police about
what A. had told her. Further, by limiting the jury’s use of the statements to an
assessment of Maria’s subsequent conduct, the trial court’s ruling rendered immaterial
Torres’s current assertion that the statements are inadmissible lay opinion testimony
under Evidence Code section 800. Under these circumstances, we conclude the trial
court acted within its discretion when admitting the challenged statements for a limited
purpose.
29
C. Prosecutor’s Rebuttal Argument on Reasonable Doubt
Garcia contends that in rebuttal argument to his jury, the prosecutor improperly
argued that he failed to create a reasonable doubt (“burden-shifting” claim) and
mischaracterized the reasonable doubt standard by suggesting it could be satisfied by a
reasonable account of the evidence (“mischaracterization” claim). Garcia asserts the
prosecutor’s errors violated California state law and his constitutional right to due
process. He claims further that the errors were prejudicial under any applicable standard,
because the prosecution’s case was not overwhelming and the prosecutor repeatedly
misstated the law just before jury deliberation.17
The Attorney General responds that Garcia forfeited his claims by failing to object
at trial and, regardless, his claims lack merit because the prosecutor did not misstate or
diminish the reasonable doubt standard.
1. Background
Immediately preceding closing arguments, the trial court instructed Garcia’s jury
with the standard instructions on reasonable doubt (CALCRIM No. 220), circumstantial
evidence (CALCRIM No. 224), and adherence to the law as explained by the court
(CALCRIM No. 200).18 The court also reiterated the People’s burden to prove Garcia’s
guilt beyond a reasonable doubt when providing other jury instructions.
17
We do not understand Torres’s statement of joinder in “all other issues and
arguments applicable to her that are raised in the briefs of co-appellant Garcia” as
including this particular claim of error. Torres’s and Garcia’s juries heard separate
closing arguments, and Torres made no argument regarding this issue in her briefing.
18
The reasonable doubt instruction read in part: “A defendant in a criminal case is
presumed to be innocent. This presumption requires that the People prove a defendant
guilty beyond a reasonable doubt. Whenever I tell you the People must prove something,
I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable
doubt is proof that leaves you with an abiding conviction that the charge is true. The
evidence need not eliminate all possible doubt because everything in life is open to some
possible or imaginary doubt. [¶] In deciding whether the People have proved their case
beyond a reasonable doubt, you must impartially compare and consider all the evidence
30
During her initial closing argument, the prosecutor argued that the prosecution had
proven its case beyond a reasonable doubt on all counts.
In response, Garcia’s defense counsel challenged the reliability of A.’s testimony,
argued that the CSAAS evidence was insignificant, noted that Dr. Malinek said Garcia
was not a pedophile, and asserted that Garcia’s statement to police was consistent with
other evidence, including A.’s preliminary hearing testimony. Counsel discussed the
prosecution’s burden of proof and argued that only one count of the lesser included
offense of lewd or lascivious act under section 288, subdivision (a), had been proved
beyond a reasonable doubt. Alternatively, counsel argued that if the jurors believed
duress had been proved, then they should find Garcia guilty of a single count of violating
the greater offense charged under section 288, subdivision (b)(1). Counsel urged the
jurors to return not guilty verdicts on the remaining counts and said “this is one of those
cases that turns on reasonable doubt, where reasonable doubt is really important,
reasonable doubt matters more than anything else in the world.”
In rebuttal, the prosecutor began by saying, “Now is my opportunity to discuss the
defense in this case and explain to you why they have not created reasonable doubt. [¶]
First, I’m going to talk about the red herring in this case and then I’m going to address
the defense[’s] arguments to the People’s case and why they did not create reasonable
doubt.” The prosecutor then read a portion of the trial court’s reasonable doubt
instruction, including that “[t]he evidence need not eliminate all possible doubt because
that was received throughout the entire trial. Unless the evidence proves the defendant
guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not
guilty.” (CALCRIM No. 220.)
The circumstantial evidence instruction told the jurors that before they could rely
on circumstantial evidence to conclude a necessary fact had been proved, they had to be
“convinced that the People have proved each fact essential to that conclusion beyond a
reasonable doubt.” (CALCRIM No. 220.) The instruction stated further: “Also, before
you may rely on circumstantial evidence to find the defendant guilty, you must be
convinced that the only reasonable conclusion supported by the circumstantial evidence
is that the defendant is guilty.” (Ibid.)
31
everything in life is open to some possible or imaginary doubt.” The prosecutor said that
although it was possible that A. simply saw Garcia and Torres having sex and Garcia
only touched A. one time, “possible” is “not the standard in this case. Anything is
possible. [¶] What is reasonable? That is the standard in this case and it’s the standard
in every courtroom across America. This is not this crazy unattainable standard. What is
reasonable? That’s what you have to ask yourself.”
The prosecutor urged the jurors not to be “thrown off by the defense’s red
herrings. They do not create reasonable doubt.” After arguing why Dr. Malinek was the
“biggest red herring,” the prosecutor reiterated that she would address “the defense’s
arguments to the People’s case and why did they [] not create reasonable doubt.” The
prosecutor then discussed the differences and consistencies in A.’s statements and her
preliminary hearing testimony, and stated “that does not create reasonable doubt.”
The prosecutor then cited a number of disputed evidentiary points and argued they
do “not create reasonable doubt” and stated, “What is reasonable? There’s no way that
[A.] is making this up and can keep up this lie.”
The prosecutor then said: “The defense did not create reasonable doubt in this
case. All of their defense, sure, it’s possible. That’s not the standard. You saw [A.] and
what she went through and what she told you. [Garcia] even admitted it, but we know
from his personality test that he can’t get himself there.” At that point, Garcia’s defense
counsel objected “to the use of the term ‘create reasonable doubt.’ ” The trial court
overruled the objection. When defense counsel attempted to elaborate on his objection,
the court immediately reiterated its ruling.
The prosecutor continued, stating that Garcia had admitted to touching A. in two
places and the lesser included offense (under section 288, subdivision (a)) did not apply
given the evidence supporting the greater offense. The prosecutor then concluded her
rebuttal argument by saying: “The defense did not create reasonable doubt. And [A.]
alone, her testimony alone shows that [Garcia] is guilty beyond a reasonable doubt, but
32
all of the other evidence -- his admission, [Torres]’s coverup, [A.]’s demeanor, the way
she disclosed it -- all of that shows you that he’s guilty beyond a reasonable doubt. [¶]
And I ask that you hold him accountable for making her go through what no four-year-
old should ever go through.”
2. Legal Principles
The prosecution has the burden to prove the charged crimes beyond a reasonable
doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5; People v. Centeno (2014) 60 Cal.4th
659, 672 (Centeno); § 1096.) Although a defendant may present evidence to suggest a
failure of proof (see, e.g., People v. Hendrix (2022) 13 Cal.5th 933, 940) or to raise a
reasonable doubt (see, e.g., People v. Gutierrez (2002) 28 Cal.4th 1083, 1136), the
defendant is not required to present any evidence and may simply rely on the state of the
prosecution’s evidence. (See People v. Hill (1998) 17 Cal.4th 800, 831–832 (Hill);
People v. Bradford (1997) 15 Cal.4th 1229, 1340.) The jury, “[s]etting aside the
incredible and unreasonable, . . . evaluates the evidence it deems worthy of consideration.
It determines just what that evidence establishes and how much confidence it has in that
determination. The standard of proof is a measure of the jury’s level of confidence. It is
not sufficient that the jury simply believe that a conclusion is reasonable. It must be
convinced that all necessary facts have been proven beyond a reasonable doubt.”
(Centeno, at p. 672.)
“It is considered misconduct to misstate the law to the jury, and bad faith is not
required. [Citation.] But a prosecutor is allowed to vigorously argue the case and is
afforded ‘significant leeway’ in discussing the facts and the law in closing argument.”
(People v. Azcona (2020) 58 Cal.App.5th 504, 516.)
“Generally, ‘ “[t]o preserve a claim of prosecutorial misconduct for appeal, a
defendant must make a timely and specific objection and ask the trial court to admonish
the jury to disregard the improper argument.” ’ [Citation.] A failure to ‘object and
request an admonition will be excused if doing either would have been futile, or if an
33
admonition would not have cured the harm.’ [Citation.] ‘[T]he absence of a request for a
curative admonition does not forfeit the issue for appeal if “the court immediately
overrules an objection to alleged prosecutorial misconduct [and as a consequence] the
defendant has no opportunity to make such a request.” ’ ” (People v. Mendoza (2016) 62
Cal.4th 856, 905.)
“When attacking the prosecutor’s remarks to the jury, the defendant must show
that, ‘[i]n the context of the whole argument and the instructions’ [citation], there was ‘a
reasonable likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner. [Citations.] In conducting this inquiry, we “do not
lightly infer” that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.’ ” (Centeno, supra, 60 Cal.4th at p. 667.)
“ ‘Prosecutorial misconduct requires reversal when it “so infect[s] a trial with
unfairness [as to] create a denial of due process. [Citations.] Conduct by a prosecutor
that does not reach that level nevertheless constitutes misconduct under state law, but
only if it involves the use of deceptive or reprehensible methods to persuade the court or
jury.” ’ ” (People v. Peterson (2020) 10 Cal.5th 409, 464.)
Prosecutorial misconduct that violates state law is harmless unless it is reasonably
probable that a result more favorable to the defendant would have been reached in the
absence of the error. (People v. Wallace (2008) 44 Cal.4th 1032, 1070–1071; see also
Watson, supra, 46 Cal.2d at p. 836.) Federal constitutional error is harmless if, beyond a
reasonable doubt, the error did not affect the outcome of the trial. (People v. Cook (2006)
39 Cal.4th 566, 608; see also Chapman, supra, 386 U.S. at p. 24.)
“[A]n appellate court reviews a trial court’s ruling on prosecutorial misconduct for
abuse of discretion.” (People v. Alvarez (1996) 14 Cal.4th 155, 213; People v. Peoples
(2016) 62 Cal.4th 718, 792–793.)
34
3. Analysis
Regarding forfeiture, Garcia acknowledges that his defense counsel objected only
once (late in the rebuttal argument) to the prosecutor’s statements about the defense not
having created a reasonable doubt. Nevertheless, Garcia asserts that his challenge to the
prosecutor’s use of the alleged burden-shifting language throughout the rebuttal argument
should be excepted from forfeiture because any earlier objection would have been futile
given the trial court’s ruling when his counsel finally objected. Under the present
circumstances, we agree. Given the similarity of the prosecutor’s statements throughout
her rebuttal argument, we can presume the trial court would have overruled any earlier
objection by Garcia’s counsel. (See People v. Zambrano (2004) 124 Cal.App.4th 228,
237.)
Garcia similarly acknowledges that his defense counsel failed to object to the
alleged mischaracterization of the reasonable doubt standard. He nonetheless urges us to
address the merits of his claim because we have the discretion to do so and can eschew
forfeiture to forestall a claim of ineffective assistance of counsel. Alternatively, he
argues that we should consider the merits of his claim under the rubric of ineffective
assistance of counsel. By contrast to Garcia’s burden-shifting claim, we decide that his
mischaracterization claim is forfeited by the failure to object to the prosecutor’s “[w]hat
is reasonable” statements and request an admonition. (See People v. Morales (2001) 25
Cal.4th 34, 43–44; Centeno, supra, 60 Cal.4th at p. 674.) Nevertheless, given that both
parties have addressed the merits of the mischaracterization claim in their briefing, we
will assume arguendo that the claim was preserved for our review and decide whether
any relief is warranted.
Turning to the merits of Garcia’s claims, section 1096 “expressly provides that a
‘reasonable’ doubt is not a mere ‘ “possible” ’ or ‘ “imaginary” ’ doubt.” (Centeno,
supra, 60 Cal.4th at p. 672.) However, “it is error for the prosecutor to suggest that a
‘reasonable’ account of the evidence satisfies the prosecutor’s burden of proof.” (Ibid.,
35
italics omitted.) “It is likewise error to state that ‘a defendant has a duty or burden to
produce evidence, or a duty or burden to prove his or her innocence.’ [Citations.] It is,
and remains, the prosecutor’s burden to prove the case. If the defense chooses to produce
evidence, the jury must, of course, consider it as part of the complete record before it. To
that end, the prosecution can surely point out that interpretations proffered by the defense
are neither reasonable nor credible. Nevertheless, even if the jury rejects the defense
evidence as unreasonable or unbelievable, that conclusion does not relieve or mitigate the
prosecutorial burden. The prosecution cannot suggest that deficiencies in the defense
case can make up for shortcomings in its own.” (Id. at p. 673; see also Hill, supra, 17
Cal.4th at pp. 831–832.)
“To determine whether a prosecutor has committed reversible misconduct in this
context, we examine (1) whether it was reasonably likely that the prosecutor’s statements
misled the jury on reasonable doubt and (2) whether there is ‘a reasonable probability that
the prosecutor’s argument caused one or more jurors to convict defendant based on a
lesser standard than proof beyond a reasonable doubt.’ ” (People v. Johnsen (2021) 10
Cal.5th 1116, 1165–1166 (Johnsen).)
Here, the prosecutor’s statements asserting the defense had failed to create a
reasonable doubt and explaining the difference between a possible doubt and a reasonable
doubt are somewhat ambiguous. Additionally, the prosecutor did not clearly articulate
that the burden to prove the charges beyond a reasonable doubt is always on the People
and that the defense does not have to prove anything. Given the ambiguity in the
prosecutor’s rebuttal statements, we will assume arguendo that the statements were
reasonably likely to have misled the jurors to think that the defense had a duty to
establish a reasonable doubt and the prosecution’s burden turned on whether its proof
was reasonable.
Notwithstanding this assumption, we are not convinced that there is a reasonable
probability the prosecutor’s statements caused a juror to convict Garcia on a standard
36
lower than beyond a reasonable doubt. On the same day as the rebuttal argument, the
trial court correctly instructed the jury on the reasonable doubt standard and directed the
jury to follow the court’s instructions in the event of any conflicting statements by the
attorneys. We presume, absent contrary indications, that the jurors followed the
instructions given by the court. (See People v. Fayed (2020) 9 Cal.5th 147, 192; see also
People v. Mayfield (1993) 5 Cal.4th 142, 179.)
Further, the prosecutor’s statements were principally directed at the relative
weakness of the defense’s evidence and argument when considered in light of the entire
record, rather than expressly suggesting that the defense bore a burden to show
reasonable doubt to obtain an acquittal or that the prosecution did not have to prove every
element of the charged crimes beyond a reasonable doubt. Additionally, the prosecutor
stated in both the initial closing argument and the rebuttal argument that the evidence
proved Garcia’s guilt of the charges beyond a reasonable doubt. Thus, this is not a case
where the prosecutor’s arguments consistently attempted to shift or reduce the People’s
burden of proof. Furthermore, we do not consider the case against Garcia to be a
particularly close one. Although Garcia denied sexually abusing or penetrating A., he
admitted touching her at Torres’s urging and described A. as wanting to kiss him and
touch his penis. When viewed along with A.’s statements about what transpired and the
rest of the prosecution’s evidence, the case against Garcia was strong.
On this record, we conclude that there is no reasonable probability the
prosecutor’s erroneous statements caused any jurors to convict Garcia based on a lesser
standard of proof than proof beyond a reasonable doubt. (See Johnsen, supra, 10 Cal.5th
at p. 1168.) Moreover, the prosecutor’s statements did not infect the trial with such
unfairness that Garcia’s constitutional rights were violated. (See People v. Seumanu
(2015) 61 Cal.4th 1293, 1345.) Hence, we will not reverse the judgment against Garcia
because of the prosecutor’s statements in rebuttal argument.
37
D. Cumulative Error
Having concluded ante that Torres’s claims challenging her convictions are
without merit, we in turn reject her claim of cumulative prejudice resulting from the
asserted errors. There is no prejudicial error to cumulate. (See People v. Hensley (2014)
59 Cal.4th 788, 818 (Hensley).)
We similarly reject Garcia’s claim of cumulative error and prejudice. Although
we assumed error regarding the prosecutor’s statements in rebuttal argument, we have
determined that Garcia was not prejudiced and discerned no other error with regard to
Garcia’s convictions. Thus, there is no prejudicial error to cumulate for Garcia. (See
Hensley, supra, 59 Cal.4th at p. 818.)
E. Claims Related to Sentencing
As described in the introduction to part II. of this opinion, ante, Torres and Garcia
raise multiple claims on appeal related to their sentencings. We will address their
requests (set forth in supplemental briefing) for remand based on recent changes to
section 654 made by Assembly Bill 518. Because we decide that a remand for full
resentencing under current section 654 is appropriate for both Garcia and Torres, we do
not address Garcia’s or Torres’s other sentencing claims. Garcia and Torres may raise
any of their remaining sentencing claims in the trial court during resentencing, including
any issues regarding the applicability of Senate Bill 567 and Assembly Bill 1869, the trial
court’s order requiring Torres to submit to an HIV test, and the imposition of fines, fees,
or assessments.
Furthermore, because we vacate both Garcia’s and Torres’s sentence, we will not
order any correction to the abstracts of judgment or clerk’s sentencing minutes, although
we agree with the parties that there are a number of errors in those documents. On
remand, the trial court will generate new abstracts of judgment and minute orders based
on its resentencing and will exercise its usual prerogative to ensure that the abstract of
38
judgment and sentencing minutes comport with the sentence pronounced. (See People v.
Mitchell (2001) 26 Cal.4th 181, 185.)
1. Background
During the jury instruction conference, the trial court explained its understanding
that the prosecution had decided to charge counts 5 through 8 (§ 288, subd. (b)(1)) as
“alternative,” “lesser-related offenses” for the acts charged in counts 1 and 2 (§ 288.7,
subd. (a) [sexual intercourse or sodomy]) and counts 3 and 4 (§ 288.7, subd. (b) [oral
copulation or sexual penetration]). None of the parties disputed this summary. Further,
the parties and the court agreed that both juries would be instructed on lesser included
offenses for counts 5 through 8 but no lesser included offenses would be provided to the
juries for counts 1 through 4.
The trial court instructed both juries on lesser offenses only as to the crimes
charged in counts 5 through 8. The court did not provide either jury any instruction
regarding the “alternative” nature of counts 1 through 4 and counts 5 through 8, and the
verdict forms permitted the juries to return verdicts on all of the counts. In addition, the
court’s instructions for counts 1 and 2 told the jurors that the People had to prove “[t]he
defendant engaged in an act of sexual intercourse with [A.] Doe.” Similarly, the
instructions for counts 3 and 4 told the jurors that the People had to prove “[t]he
defendant engaged in an act of oral copulation or sexual penetration with [A.] Doe.”
Neither these instructions nor the related verdict forms specified what particular act
committed by Garcia and/or Torres had to be proved by the prosecution to satisfy counts
1 through 4. Likewise, the instructions and verdict forms for counts 5 through 8 did not
specify the relevant lewd or lascivious act that had to be proved by the prosecution.
During closing argument to Garcia’s jury, the prosecutor argued that Garcia was
guilty of counts 1 through 4 and then stated that, for counts 5 through 8, if the jurors “find
that something happened, there was touching, but if you don’t find that it rises to the level
of legal penetration, then you can find [Garcia] not guilty of counts 1 through 4 and still
39
find him guilty of counts 5 through 8. Or if you find there is a legal penetration by a
penis, oral copulation, and digital penetration, he’s also guilty of touching and molesting,
because naturally, if you are having a four-year-old hump your penis, you’re also guilty
of counts 5 through 8.”
Similarly, during closing argument to Torres’s jury, the prosecutor argued that
Torres was guilty of counts 1 through 4 and said that counts 5 through 8 involved sexual
touching without any requirement of penetration. The prosecutor further explained that if
the jurors “think [Torres] is guilty of count 1 through 4, the legal penetration, sexual
penetration, digital penetration and oral cop[ulation], she’s also guilty of counts 5 through
8, because the penetration is also a sexual touching. Guilty of counts 1 through 4, also
guilty of counts 5 through 8 automatically. But if you think that there’s no penetration
but you think that there is a sexual touching or oral copulation then she could be not
guilty of counts 1 and 4, and still be guilty of counts 5 through 8, and that’s because you
just didn’t think there was a legal penetration. And again, that it has to be oral copulation
or touching for a sexual purpose. And again, we know it happened twice. Once in the
apartment; once in the RV. And there’s different things going on. It’s legal penetration,
digital penetration, copulation and legal penetration in both places. She is guilty of
counts 5 through 8.”
As discussed ante (see part II.C.1.), Garcia’s defense counsel urged the jury to
find Garcia guilty of only one count for counts 5 through 8 and not guilty on all
remaining counts.
Torres’s defense counsel urged Torres’s jury to “say not guilty on the penetration”
and contended that there was no evidence of sexual arousal as to Torres having put
Desitin cream on A. Counsel also asserted that if the jurors felt Torres “went out of
bounds by putting Desitin on [A.], then hold her accountable for the battery, which is one
of the less[e]rs that you have been instructed [on], but she did not molest [A.] All she did
was put [on] cream.”
40
Garcia’s jury found him guilty on all counts. Torres’s jury found her guilty on
count 1 and counts 3 through 8. The jury failed to reach a unanimous verdict on count 2
(one of the two sexual intercourse counts), and the trial court dismissed it. Neither
Garcia nor Torres has claimed (either at trial or on appeal) that their convictions on
counts 5 through 8 are improper multiple convictions under section 954. (See People v.
Aguayo (2022) 13 Cal.5th 974, 981–982; see also People v. White (2017) 2 Cal.5th 349,
355.)
At Garcia’s December 2018 sentencing, defense counsel stated that he had
“explained to Mr. Garcia that consecutive sentencing is mandatory on Counts One
through Four.” The trial court did not correct this statement.19 Counsel also said that he
agreed with the probation officer’s report that the punishments on counts 5 through 8
should be stayed pursuant to section 654.20
In accord with the probation officer’s recommendation, the trial court imposed on
Garcia a total sentence of 80 years to life comprising consecutive terms of 25 years to life
on counts 1 and 2 (§ 288.7, subd. (a)), plus consecutive terms of 15 years to life on counts
3 and 4 (§ 288.7, subd. (b)). The court also imposed stayed terms of 10 years on each of
counts 5 through 8 (§ 288, subd. (b)(1)), pursuant to section 654. The trial court did not
19
Counts 1 through 4 (charged under section 288.7, subdivisions (a) and (b)) are
not offenses specified in subdivision (e) of section 667.6, for which mandatory
consecutive sentencing is required.
20
The probation officer’s report for Garcia stated the following: “[W]hile noting
Counts Five, Six, Seven and Eight (violent sex crimes requiring consecutive sentencing
pursuant to Section 667.6[, subdivision] (d) []) were filed as alternate Counts as to Counts
One, Two, Three, and Four, punishments in the former Counts are recommended stayed
pursuant to Section 654 of the Penal Code.” The probation report also said: “In view of
the case being aggravated, as the conduct was committed against a young vulnerable
victim, and involved behavior where force was used, with the assaults having occurred on
multiple dates, it is recommended Counts One, Two, Three, and Four be consecutive to
one another, for a total indeterminate term of 80 years to life.”
41
state any reasons for imposing the consecutive sentences on counts 1 through 4 or the
upper term of 10 years on counts 5 through 8.
At Torres’s December 2018 sentencing, a probation department representative
acknowledged that, contrary to a statement in the probation officer’s report, the fact that
the “assaults [against A.] occurred on multiple dates [] is actually not an
aggravator . . . just a reason to go consecutive.” The representative also stated that the
listed aggravating factor noting “force” as an element of the offense “should be deleted
[from the probation report] as well.”21 Furthermore, the representative explained: “So
the [section] 288.7[, subdivision] (a) and [subdivision] (b) counts are not specifically
listed under [section] 667.6. But based on the alternate charges of Counts Five, Seven,
and Eight being listed, it appears that those counts could be sentenced pursuant to
[section] 667.6. [¶] However, to stay on the safe side, I would recommend that they all
be sentenced, including Count Six, all be sentenced under [section] 1170.”
21
Torres’s probation report stated the following: “[W]hile noting Counts Five,
Seven and Eight were filed as alternate Counts as to Counts One, Three, and Four,
punishments in the former Counts are recommended stayed pursuant to Section 654 of
the Penal Code. In view of the case being aggravated due to the vulnerability of the
victim, that the assaults occurred on multiple dates, and with behavior that involved
force, the aggravated term of 10 years is selected as to Count Six. It is further
recommended the indeterminate term of 25 years to life as to Count One be consecutive
to Count Six, along with Counts Three and Four (each 15 years to life) also consecutive,
in view of the above, for a total term of 55 years to life consecutive to 10 years. Should
the Court decide to impose a different sentence, it is noted Count Six is a violent sex
offense, and pursuant to Section 667.6[, subdivision] (d) of the Penal Code, the term (10
years) ‘shall be served consecutively to any other term of imprisonment’ and
additionally, ‘any other term imposed subsequent to that term (10 years) shall not be
merged.’ ” Additionally, in a list of circumstances in aggravation attached to the
probation report, the probation officer further noted that Torres took advantage of a
position of trust or confidence to commit the offense (Cal. Rules of Court, rule
4.421(a)(11)) and that Torres’s “prior convictions . . . are numerous or of increasing
seriousness.” (Id., rule 4.421(b)(2).) However, the probation report also stated that
Torres had no prior felony convictions and only one prior misdemeanor conviction for
petty theft in 2004.
42
Torres’s defense counsel asserted that section 654 applied to counts 5 through 8,
“given how the case was charged and argued,” as well as to counts 3 and 4 (relative to
count 1), “given the lack of specific findings or anything like that with regards to what
occurred.” Counsel summed up his position by saying “it’s 25 to life [on count 1] and
everything else is either [section] 654 or concurrent.” The prosecutor responded, “The
jury did find [Torres] guilty of all of the lessers [(i.e., counts 5 through 8)]. So she could
be sentenced consecutively as to one of them, which would replace Count Two” (on
which the jury could not reach a unanimous verdict and which had been dismissed at the
district attorney’s request).
The trial court said “the jury was instructed [] that Counts Five, Six, Seven, and
Eight were lesser offenses to Counts One, Two, Three and Four . . . . And so I do think
Count Six is a lesser offense.”22 After holding an unreported bench conference, the court
stated further: “The jury was instructed with regard to the lessers, the charge of lessers.
Given that the jury did not acquit [Torres] of the greater in Count Two, I think it was
more appropriate to assume that the charge of Count Six was [section] 654 with regard to
Counts One, Three and Four.”
The court imposed on Torres a total sentence of 55 years to life comprising 25
years to life on count 1 (§ 288.7, subd. (a)), plus consecutive terms of 15 years to life on
counts 3 and 4 (§ 288.7, subd. (b)). The court also imposed stayed terms of 10 years on
each of counts 5 through 8 (§ 288, subd. (b)(1)), pursuant to section 654. The trial court
did not state any reasons for imposing the consecutive sentences on counts 1, 3, and 4 or
the upper term of 10 years on counts 5 through 8.
22
This statement by the trial court does not accurately reflect the jury instructions.
As discussed above, although counts 5 through 8 were deemed “alternative,” lesser
related offenses to counts 1 through 4, the trial court only instructed Torres’s jury on
lesser offenses for counts 5 through 8, not for counts 1 through 4.
43
On appeal, the Attorney General raises (for the first time in his supplemental
respondent’s brief) a “problem” with Torres’s sentencing. The Attorney General
contends “the court imposed and stayed four terms under Penal Code section 654, when it
should have imposed and stayed only three of them because Torres was being doubly
punished on only three rather than on four of the [c]ounts. Under the sentencing as it
currently exists, Torres is not being punished at all for one of the [c]ounts of forcible
lewd and lascivious conduct.” Torres has not addressed this issue in her briefing.
2. Analysis
As described above, there appear to have been a number of misconceptions held
by the parties and/or the trial court at the sentencings for both Garcia and Torres. For
example, Garcia’s counsel stated that counts 1 through 4 were required to be sentenced
consecutively, the probation reports included uncorrected errors regarding aggravation,
and the trial court described counts 5 through 8 as having been presented to the jury as
“lesser offenses” to counts 1 through 4. Nevertheless, for the reasons stated below, we
conclude that both Garcia and Torres must be resentenced in full. Therefore any errors in
the previous sentencings can be remedied at resentencing.
Effective January 1, 2022, section 654 was amended by Assembly Bill 518.
(Stats. 2021, ch. 441, § 1.) As amended, section 654, subdivision (a), provides in
relevant part, “An act or omission that is punishable in different ways by different
provisions of law may be punished under either of such provisions, but in no case shall
the act or omission be punished under more than one provision.” (Italics added.)
Previously, where section 654 applied, the sentencing court was required to impose the
term that “provides for the longest potential term of imprisonment” and stay execution of
the other term. (§ 654, former subd. (a).)
The Attorney General concedes that the recent legislative changes to sections 654
apply to Garcia and Torres because their judgments are not yet final. We agree. (See
44
People v. Mani (2022) 74 Cal.App.5th 343, 379; People v. Sek (2022) 74 Cal.App.5th
657, 673.)
Regarding Garcia’s request for a remand for resentencing under current section
654, the Attorney General argues that remand is not necessary because “[t]here is simply
no reasonable basis for the court to have exercised discretion to impose sentence on
Counts 5 through 8 and stay the terms on Counts 1 through 4, when Garcia’s conduct far
exceeded what would be required for a forcible lewd touching.”
Regarding Torres’s request for a remand under current section 654, the Attorney
General states no position. Instead, the Attorney General notes his unrelated position that
Torres’s case should be remanded for resentencing because the trial court committed an
error by imposing two fines under section 290.3. The Attorney General also sets out the
potential error in failing to impose any sentence on Torres for one of the lewd act
convictions caused by the trial court having stayed all punishment on counts 5 through 8.
At the time the trial court sentenced Garcia and Torres, it had no discretion to
choose which counts to stay under section 654. (§ 654, former subd. (a).) Generally,
when a change in the law confers previously unavailable discretion on a trial court, “the
appropriate remedy is to remand for resentencing unless the record ‘clearly indicate[s]’
that the trial court would have reached the same conclusion ‘even if it had been aware
that it had such discretion.’ ” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see also
People v. Jones (2019) 32 Cal.App.5th 267, 273; People v. McVey (2018) 24 Cal.App.5th
405, 418.) We review the sentencing court’s statements and sentencing decisions to infer
what its intent would have been. (Jones, at p. 273.)
Under the present circumstances, we decide that a remand for resentencing is
proper for both Garcia and Torres. Although the probation reports noted a few
circumstances in aggravation for Garcia and Torres, the trial court did not detail any
specific aggravating circumstances supporting its imposition of the upper term on counts
5 through 8. Likewise, the court did not provide any explanation for its imposition of
45
consecutive sentences on counts 1 through 4 for Garcia or on counts 1, 3, and 4 for
Torres.
It is, of course, understandable that the trial court gave no indication of how it
would exercise its discretion under current section 654, which had not yet been enacted.
Although the court’s imposition of consecutive and upper term sentences for Garcia and
Torres provides some indication that the trial court might choose to exercise its newly
conferred discretion under section 654 by electing to stay the counts with the shorter
terms of imprisonment, the sparse record here does not clearly indicate that the court
would take that approach at a resentencing.
Accordingly, we agree with Garcia and Torres that remand is appropriate so the
trial court may fully resentence each of them anew under the new law. (See People v.
Buycks (2018) 5 Cal.5th 857, 893.) At resentencing the trial court will have the
opportunity to exercise its discretion to apply current section 654. In addition, the People
may raise any argument regarding the impropriety of staying the punishment for all of
Torres’s convictions on counts 5 through 8. We express no opinion on how the court
should exercise its sentencing discretion.
Furthermore, upon remand the trial court may revisit all its prior sentencing
decisions, including the application of section 1170, subdivision (b), as amended by
Senate Bill 567. (See People v. Valenzuela (2019) 7 Cal.5th 415, 424–425; People v.
Jones (2022) 79 Cal.App.5th 37, 46.)
Garcia and Torres may raise in the trial court their arguments challenging their
sentences which this court has not addressed in light of its decision to vacate their
sentences.
III. DISPOSITION
The judgment against Garcia is reversed, his sentence is vacated, and the matter is
remanded to the trial court solely for resentencing under current law and consistent with
this opinion. Garcia’s convictions are affirmed.
46
The judgment against Torres is reversed, her sentence is vacated, and the matter is
remanded to the trial court solely for resentencing under current law and consistent with
this opinion. Torres’s convictions are affirmed.
47
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Bamattre-Manoukian, Acting P.J.
____________________________________
Lie, J.
H046635
People v. Garcia et al. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482614/ | Filed 11/9/22 McDaniel v. FlashCo Manufacturing CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JEREMY MCDANIEL, B314274
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 20STCV09497)
v.
FLASHCO MANUFACTURING,
INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Michael P. Linfield, Judge. Affirmed in
part, reversed in part, and remanded with directions.
Eldessouky Law and Mohamed Eldessouky; Bove Law
Group and Brooke L. Bove for Plaintiff and Appellant.
Kahana & Feld, Ron S. Brand, Avi M. Attal and Alexa P.
Stephenson for Defendants and Respondents.
____________________________
Plaintiff and appellant Jeremy McDaniel appeals a
summary judgment entered against him on his claims that he
was discharged from his employment by defendants and
respondents FlashCo Manufacturing, Inc. (FlashCo) and
Insperity PEO Services, L.P. (Insperity) in violation of the
California Fair Employment and Housing Act, Government Code
section 12900 et seq. (FEHA), the Moore-Brown-Roberti Family
Rights Act, commonly referred to as the California Family Rights
Act (CFRA), and public policy.1
McDaniel claims FlashCo and Insperity discharged him
“because of” his disability—an injury to his neck and back. As we
shall explain, to prevail on his FEHA causes of action, McDaniel
must prove that defendants knew about his alleged disability
before they discharged him. We affirm the trial court’s summary
adjudication of McDaniel’s FEHA claims because he failed to
raise a triable issue of fact as to whether defendants knew of his
disability.
Our analysis of McDaniel’s CFRA and wrongful
termination in violation of public policy causes of action is
different. To prevail on these claims, McDaniel need not prove
that defendants knew he was disabled. The trial court’s
determination that McDaniel was required to make that showing
was error. We thus reverse the trial court’s judgment in part and
remand the matter for the trial court to address in the first
1
Unless otherwise stated, all further statutory
references are to the Government Code. The CFRA is an
amendment to the FEHA codified in section 12945.2 in Part 2.8 of
Division 3 of Title 2 to the Government Code. For clarity and
convenience, we shall refer to the FEHA and CFRA as separate
statutory schemes.
2
instance defendants’ other arguments regarding McDaniel’s
surviving causes of action.
BACKGROUND
FlashCo is in the business of manufacturing and selling
prefabricated roof flashings. Insperity is a professional employer
organization that provides administrative and consulting services
to small companies. Under a Client Service Agreement with
FlashCo, Insperity administered payroll and employee benefits
for FlashCo and served as an off-site full-service human
resources department for the company.
In 2010, FlashCo hired McDaniel as a production worker.
In 2013, after FlashCo and Insperity executed the Client Service
Agreement, McDaniel signed an employment agreement with
Insperity. This contract provides that FlashCo and Insperity
have a “co-employment relationship” with McDaniel.
In March 2016, McDaniel was hired as the plant manager
for FlashCo’s Downey, California plant. Beginning in November
2016, FlashCo’s Director of Operations, Eric Compton, was
McDaniel’s direct supervisor. Compton reported directly to
FlashCo’s president, Greg Morrow, and did not work for
Insperity.
At his deposition, Morrow testified that when McDaniel
was hired as a plant manager, he was concerned McDaniel was
“over his head” due to his limited experience and management
skills and lack of a college degree. Morrow further testified that
he hoped McDaniel would develop into a competent plant
manager, but McDaniel never did so.
In his declaration in support of FlashCo’s motion for
summary judgment, Compton provided similar testimony.
Compton stated that when he began supervising McDaniel, he
3
advised Morrow that McDaniel was not qualified for the plant
manager position, but with hard work and additional training
McDaniel could be successful. Compton further stated that
McDaniel did not progress as fast or as well as he expected,
especially with respect to producing enough product to meet
customer demand. According to Compton, in 2016 and 2017, the
Downey plant managed by McDaniel did not have the product
output levels expected of a plant of its maturity and was
struggling to meet customer demand.
In performance reviews in 2016 and 2017, McDaniel
received an overall rating of 3 out of 5, and a rating of 2 out of 5
in two categories—labor expense and on-time shipments.
According to FlashCo’s policies, a rating of 3 means the employee
“Achieves Standard,” while a rating of 2 means an employee
“Needs Improvement.”
On Thursday, February 22, 2018, outside of work,
McDaniel sustained neck and back injuries in an automobile
accident. On that day McDaniel and Compton communicated
about the accident by text and telephone.
McDaniel did not work on Friday, February 23, 2018.
Compton and McDaniel exchanged the following text messages:
McDaniel: “Good morning, they put me on muscle relaxers,
steroids, naproxen. They gave me a shot of steroids, and a shot
for the pain last night. I have back spasms from my neck down to
my hip on the right side. Needless to say I won’t be going in this
morning. . . . Wanted to keep you in the loop.”
Compton: “Ok, thanks.”
McDaniel: “P.S. I hate shots, and muscle relaxers. Guess
I have to man up though.”
4
Compton: “I usually tough it out. I don’t like the fogginess
that comes with it.”
McDaniel: “Me neither. I don’t do any pills well, but these
things absolutely knock me out.”
On Monday, February 26, 2018, Compton texted McDaniel,
asking him how he was feeling. McDaniel responded, “Hurting
pretty good. Just leaving work now to go to the doctor.”
On March 23, 2018, Compton received an email from
McDaniel, stating: “I’m having issues with my back today. It
froze up on me last night, and isn’t much better today. I’m not
going to be able to go in today.” Compton did not object to
McDaniel taking the day off and responded with an email stating,
“I hope you feel better.”
On March 26, 2018, McDaniel emailed Compton a note
from his chiropractor. The note stated McDaniel was “[t]otally
incapacitated” due to lumbar myalgia “from 3/23/18 to 3/23/18.”
In response, Compton told McDaniel that he did not need to
submit a doctor’s note in the future if he was feeling unwell or
took the day off of work.
On March 28, 2018, McDaniel emailed Compton stating his
“back and neck are out again,” and that he planned on taking the
day off. Compton replied via email, “Okay, I hope you feel
better.” McDaniel did not request any time off after March 28,
2018.
On April 17, 2018, Compton spoke to McDaniel and advised
him that “the sales team was concerned about the plant
performance, especially given that the plant was not yet in the
year’s busy season.” Around this time—the record is not clear
exactly when—Compton sent Morrow a summary of his
inspections of the Downey plant and McDaniel’s alleged poor
5
work performance. On April 18, 2018, Morrow responded by
directing Compton to prepare a short-term performance
improvement plan (PIP).
Compton prepared a PIP and on April 19, 2018, sent it via
email to Cindy Bailey, a senior human resource specialist at
Insperity. In his email, Compton asked Bailey to “look this pip
over” and call him. Although Bailey did not have authority to
approve or disapprove the PIP, she reviewed the document and
advised Compton that “the contents of the PIP did not present
any obvious human resource problems.”
On April 20, 2018, Compton sent McDaniel the PIP. The
document set specific goals for the period of April 20 to May 21,
2018. For example, the PIP stated: “The plant needs to meet its
speed goals of 90% shipped within 3 days of purchase order.”
McDaniel believed the PIP set “unrealistic” expectations.
In a telephone conference with McDaniel on April 20, 2018,
Compton advised McDaniel he had three options: (1) abide by
the PIP and improve his performance; (2) accept the position of
operations supervisor (one step below the plant manager
position) at FlashCo’s South Carolina plant; or (3) voluntarily
resign. Compton told McDaniel that he felt the operations
supervisor position was the “right job” for him, commensurate
with his skills and education level. Compton also informed
McDaniel that if he chose to resign, FlashCo would offer him
$10,000.
On April 24, 2018, McDaniel sent Compton an email
advising him that he would take the “severance option.”
McDaniel’s employment was terminated on that date.
6
On March 9, 2020, McDaniel commenced this action by
filing a complaint against FlashCo and Insperity in superior
court.
In his operative first amended complaint, McDaniel set
forth nine causes of action, six of which were for violation of the
FEHA based on (1) disability discrimination, (2) failure to
accommodate, (3) failure to engage in the interactive process, (4)
retaliation, (5) failure to prevent harassment and discrimination,
and (6) hostile work environment. McDaniel also stated two
causes of action for violation of the CFRA, one for interference
and another for retaliation. Finally, McDaniel asserted a
wrongful termination in violation of public policy cause of action
based on defendants’ alleged FEHA and CFRA violations.
FlashCo and Insperity filed separate motions for summary
judgment or, in the alternative, summary adjudication of each of
McDaniel’s nine causes of action. After a hearing, the trial court
entered an order granting both defendants summary judgment.
On June 7, 2021, the trial court entered judgment against
McDaniel and in favor of FlashCo and Insperity. McDaniel
timely appealed the judgment.
DISCUSSION
I. Standard of Review
A defendant moving for summary adjudication of a cause of
action bears the burden of showing there is no triable issue of
material fact and that it is entitled to prevail as a matter of law.
(Johnson & Johnson v. Superior Court (2011) 192 Cal.App.4th
757, 761.) If the defendant shows the plaintiff cannot establish
an element of a cause of action or does not possess the needed
evidence to establish that element, the court shall summarily
7
adjudicate the cause of action in its favor. (Leyva v. Garcia
(2018) 20 Cal.App.5th 1095, 1102.) If the defendant makes this
showing with respect to all the plaintiff’s causes of action, it is
entitled to summary judgment. (Code Civ. Proc., § 437c, subd.
(c).)
In determining whether there is a triable issue of material
fact, the court must make all reasonable inferences in favor of the
party opposing summary judgment or summary adjudication.
(Kaney v. Custance (2022) 74 Cal.App.5th 201, 213.) “There is a
triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor
of the party opposing the motion in accordance with the
applicable standard of proof.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.)
We examine the record de novo to determine whether
triable issues of material fact exist. (Saelzler v. Advanced Group
400 (2001) 25 Cal.4th 763, 767.)
II. McDaniel’s FEHA Causes of Action
A. McDaniel’s Alleged Disability
McDaniel claims he had a physical disability. Under the
FEHA, a “physical disability” includes having any “physiological
disease, disorder, condition, cosmetic disfigurement, or
anatomical loss” that (A) affects one or more of certain body
systems, including the musculoskeletal system, and (B) “[l]imits a
major life activity.” (§ 12926, subd. (m)(1).) A “major life
activity” includes “physical, mental, and social activities and
working.” (§ 12926, subd. (m)(1)(B)(iii).) “[P]ain alone without
some corresponding limitation on activity is insufficient to
8
establish a disabling impairment.” (Arteaga v. Brink’s, Inc.
(2008) 163 Cal.App.4th 327, 348 (Arteaga).)
A “disability” does not include conditions with “little or no
residual effects, such as the common cold; seasonal or common
influenza; minor cuts, sprains, muscle aches, soreness, bruises, or
abrasions; non-migraine headaches, and minor and non-chronic
gastrointestinal disorders.” (Cal. Code Regs., tit. 2, § 11065,
subd. (d)(9)(B), italics added.) Accordingly, if a person suffers
short-term pain arising from a back sprain, he or she is not
“disabled” for purposes the FEHA.
In their motions for summary judgment, defendants argued
that McDaniel did not have a disability because there is no
evidence that he had a chronic back injury. The trial court did
not decide this issue. We shall assume, without deciding, that
there is sufficient evidence in the record for a trier of fact to
conclude that McDaniel had a physical disability, namely a
chronic back injury.
B. McDaniel Cannot Prevail on His FEHA Causes of
Action Unless He Shows Defendants Knew of His
Alleged Disability
Each of McDaniel’s FEHA causes of action have a common
requirement: McDaniel must show that defendants knew of his
alleged physical disability.
In his first, fourth, fifth, and eighth causes of action,
McDaniel alleges defendants engaged in wrongful conduct
“because of” his disability:
• Plaintiff’s first cause of action is for disability
discrimination in violation of section 12940, subdivision (a),
which prohibits “an employer, because of . . . physical
disability” from discharging any person from employment.
9
• In McDaniel’s fourth cause of action for retaliation, he
alleges defendants retaliated against him in violation of
2
section 12940, subdivision (h) “because of disability.”
• McDaniel’s eighth cause of action is for hostile work
environment harassment pursuant to section 12940,
subdivision (j)(1), which prohibits an employer from
harassing an employee “because of . . . physical disability.”
• McDaniel’s fifth cause of action is for failure to prevent
harassment and discrimination. The discrimination
McDaniel complains of allegedly occurred because of his
disability. Although the first amended complaint does not
state any facts regarding harassment, McDaniel testified at
his deposition that Compton harassed him by firing him
“because of disability” and giving him the PIP.
“An adverse employment decision cannot be made ‘because
of’ a disability, when the disability is not known to the employer.”
(Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236; accord Avila
v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1247
(Avila).)
2
Section 12940, subdivision (h) provides that it is
unlawful for an employer to take adverse employment action
against “any person because the person has opposed any
practices forbidden [by the FEHA] or because the person has filed
a complaint, testified, or assisted in any proceeding under [the
FEHA].” In his first amended complaint and in opposition to
defendants’ motion for summary judgment, McDaniel did not
allege that prior to his termination, he, or anyone else, filed a
complaint, testified, or assisted in any FEHA proceeding.
McDaniel does not argue on appeal that his FEHA retaliation
cause of action rests on any basis other than defendants’ alleged
discrimination against him because of his disability.
10
McDaniel’s second and third causes of action are for failure
to accommodate and failure to engage in the interactive process.
Section 12940, subdivision (m) requires an employer “to make
reasonable accommodation for the known” physical disability.
(Italics added.) Likewise, section 12940, subdivision (n) requires
an employer who receives a request for an accommodation to
“engage in a timely, good faith, interactive process” with an
employee “with a known” physical disability. (Italics added.)
C. McDaniel Does Not Have Evidence That FlashCo
or Insperity Knew of His Alleged Disability
“ ‘An employee cannot demand clairvoyance of his
employer.’ ” (Doe v. Department of Corrections & Rehabilitation
(2019) 43 Cal.App.5th 721, 738 (Doe).) “ ‘It is an employee’s
responsibility to understand his or her own physical or mental
condition well enough to present the employer at the earliest
opportunity with a concise list of restrictions which must be met
to accommodate the employee.’ ” (King v. United Parcel Service,
Inc. (2007) 152 Cal.App.4th 426, 443.)
“ ‘Where the disability, resulting limitations, and necessary
reasonable accommodations, are not open, obvious, and apparent
to the employer, . . . the initial burden rests primarily upon the
employee . . . to specifically identify the disability and resulting
limitations, and to suggest the reasonable accommodations.’ ”
(Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986,
1013.) “ ‘Reliance on medical opinion and an individualized
assessment is especially important when the symptoms are
subjective and the disease is of a type that varies widely between
people.’ ” (Doe, supra, 43 Cal.App.5th at p. 739.)
“ ‘While knowledge of the disability can be inferred from
the circumstances, knowledge will only be imputed to the
11
employer when the fact of disability is the only reasonable
interpretation of the known facts. “Vague or conclusory
statements revealing an unspecified incapacity are not sufficient
to put an employer on notice of its obligations under the [FEHA].”
[Citation.]’ ” (Avila, supra, 165 Cal.App.4th at p. 1248.)
McDaniel argues that he did not need to show that FlashCo
knew he was actually disabled. Rather, McDaniel contends, he
“need only show that it is reasonable to infer that FlashCo . . .
regarded him as potentially disabled to defeat a motion for
summary judgment.” (Italics added.) For FEHA purposes,
“physical disability” includes being “regarded” by the employer as
having a condition “that has no present disabling effect but may
become a physical disability.” (§ 12926, subd. (m)(5).)
“[E]vidence that a discharged employee had non disabling
symptoms—pain and numbness—during his employment does
not support an inference that the employer discharged him
because of a potential disability. Something more must be
shown. Otherwise, every headache would give rise to a triable
claim.” (Arteaga, supra, 163 Cal.App.4th at pp. 350–351.)
An employee is potentially disabled only if he or she has a
physical or mental condition that creates “a greater than normal
risk of disability or death.” (Arteaga, supra, 163 Cal.App.4th at
p. 351.) Examples of such conditions include high blood pressure
(American National Ins. Co. v. Fair Employment & Housing Com.
(1982) 32 Cal.3d 603, 610), acquired immunodeficiency syndrome,
better known as AIDS (Raytheon Co. v. Fair Employment &
Housing Com. (1989) 212 Cal.App.3d 1242, 1249), and diagnosed
psychiatric disorders (Goldman v. Standard Ins. Co. (9th Cir.
2003) 341 F.3d 1023).
12
Here, there is no evidence FlashCo knew that McDaniel
was actually or potentially disabled. Before his discharge,
McDaniel did not inform FlashCo that he had a chronic back or
neck injury or that he had a history of such injuries. Apart from
requesting three days off in his last two months at work,
McDaniel never indicated that his pain affected his work
performance, prevented him from completing his work duties, or
interfered with his major life activities.
McDaniel also did not inform FlashCo that the back pain
that caused him to take two days off at the end of March 2018
was related to his automobile accident in February. McDaniel’s
supervisor, Compton, never observed McDaniel’s alleged injury
affecting his work, or McDaniel showing signs of distress or a
need for an accommodation. There is no evidence that anyone
else at FlashCo made such observations.
FlashCo only knew of McDaniel’s sporadic, subjective
complaints of pain, which itself is not an actual or potential
disability. The sole document FlashCo received from a health
care provider, the note from McDaniel’s chiropractor, indicated
that McDaniel could not work on one day—beginning and ending
on March 23, 2018—due to “lumbar myalgia” (pain in the lower
back). No doctor ever informed FlashCo that McDaniel had a
chronic back condition or some other disability.
After McDaniel took March 28, 2018, off from work,
FlashCo had no reason believe McDaniel would take more time
off from work due to back pain. As there are many potential
causes of sporadic, short-term subjective back pain and McDaniel
only asked for a few days off, FlashCo was not notified that
McDaniel had, or claimed to have, an actual disability.
13
The same is true for any potential disability. An employer’s
knowledge of sporadic back pain, without more, is not analogous
to an employer’s knowledge of high blood pressure, AIDS, a
diagnosed psychiatric disorder, or other condition that creates a
greater than normal risk of an actual disability. McDaniel thus
did not notify FlashCo that he had a potential disability.
McDaniel argues that “any ignorance on the part of
[FlashCo] as to the severity of [his] injuries was due in large part
to Mr. Compton’s response to [his] initial communications.” He
does not, however, articulate any legal theory for this argument
or cite any authorities to support it.
In any case, Compton’s response to McDaniel’s
communications does not change our analysis. In response to
McDaniel’s statement that he did not like taking pain
medication, Compton stated that he would “usually tough it out”
to avoid the fogginess that comes with such medication. Compton
also told McDaniel that he did not need to present a doctor’s note
if he needed to take a day off because he was unwell. These
statements did not relate to any disability claim by McDaniel or
prevent McDaniel from informing FlashCo of an alleged
disability.
Insperity had even less information than FlashCo. On or
before April 24, 2018, when McDaniel’s employment was
terminated, Insperity had no knowledge that he allegedly injured
his back or neck. While FlashCo’s records show McDaniel took a
total of three days off from work for back pain, McDaniel did not
ask Insperity to take this time off or inform Insperity he would be
taking this time off. Neither McDaniel nor FlashCo forwarded to
Insperity any medical documentation regarding McDaniel’s
14
absences, his condition, or any need for time off or any other
accommodation.
FlashCo and Insperity could not have taken adverse
employment action against McDaniel “because of” his disability
because they did not know of McDaniel’s alleged disability. For
this reason, defendants are entitled to summary adjudication in
their favor on all of McDaniel’s FEHA causes of action.
The cases McDaniel cites do not support his position. In
Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34 (Gelfo),
the court held that an employee could maintain a FEHA action
against an employer who “regarded” him as disabled, even
though he was not actually disabled. (Id. at p. 50.) Here, by
contrast, there is no evidence that FlashCo or Insperity regarded
McDaniel as disabled. Gelfo is distinguishable from the present
case.
In Taylor v. Phoenixville School District (3rd Cir. 1999) 184
F.3d 296 (Taylor), the defendant employer knew the plaintiff
employee was hospitalized after becoming psychotic at work.
Plaintiff’s physicians also advised defendant that plaintiff needed
to continue her mediation to avoid future psychotic episodes. (Id.
at pp. 313−314.) No analogous facts exist here. Taylor, too, is
distinguishable.
III. McDaniel’s CFRA Causes of Action
Under the CFRA, an employer is prohibited from refusing
an eligible employee’s3 request for medical leave. (§ 12945.2,
3
To be eligible, the employee must meet certain
criteria, including working for the employer at least 12 months.
(§ 12945.2, subd. (a).) It is undisputed that McDaniel is an
eligible employee protected by the CFRA.
15
subd. (a).) “Medical leave” includes leave “because of an
employee’s own serious health condition that makes the employee
unable to perform the functions of the position of that employee.”
(§ 12945.2, subd. (b)(4)(C).) A “serious health condition” includes
an “an illness, injury, impairment, or physical or mental
condition” that involves “[c]ontinuing treatment or continuing
supervision by a health care provider.” (§ 12945.2, subd.
(b)(12)(B).)
“CFRA ‘is intended to give employees an opportunity to
take leave from work for certain personal or family medical
reasons without jeopardizing job security.’ ” (Bareno v. San Diego
Community College Dist. (2017) 7 Cal.App.5th 546, 558.)
Violations of the CFRA generally fall into two types of claims: (1)
interference claims (2) retaliation claims. (Id. at pp. 558–559.)
McDaniel’s sixth cause of action is for CFRA interference.
It is unlawful for an employer “to interfere with, restrain, or deny
the exercise of, or attempt to exercise, any right provided” under
the CFRA. (§ 12945.2, subd. (q).) The elements of a CFRA
interference cause of action are “ ‘(1) the employee’s entitlement
to CFRA leave rights; and (2) the employer’s interference with or
denial of those rights.’ ” (Moore v. Regents of University of
California (2016) 248 Cal.App.4th 216, 250.) To prevail on this
cause of action, the plaintiff does not need to show the defendant
took an adverse employment action against the plaintiff “because
of” the plaintiff’s “disability.”
McDaniel’s seventh cause of action is for CFRA retaliation.
It is unlawful for an employer to discharge any individual
“because of” the individual’s “exercise of the right to . . . medical
leave.” (§ 12945.2, subd. (k)(1).) The elements of a CFRA
retaliation cause of action are “(1) the defendant was an employer
16
covered by CFRA; (2) the plaintiff was an employee eligible to
take CFRA leave; (3) the plaintiff exercised her right to take
leave for a qualifying CFRA purpose; and (4) the plaintiff suffered
an adverse employment action, such as termination, fine, or
suspension, because of her exercise of her right to CFRA leave.”
(Dudley v. Department of Transportation (2001) 90 Cal.App.4th
255, 261, italics added.)
In contrast to his FEHA causes of action, McDaniel does
not need to prove defendants discharged him “because of
disability” to prevail on his CFRA retaliation cause of action.
“The ‘because of’ language in section 12945.2, subdivision [(k)]
requires only proof of a causal connection between the employee’s
protected status or conduct and the adverse employment action
taken by the employer. [Citations.] The decision maker must
have knowledge, but just knowledge of the protected conduct—
the absences.”4 (Avila, supra, 165 Cal.App.4th at p. 1258.)
In its order granting defendants’ motions for summary
judgment, the trial court did not address the elements of
McDaniel’s CFRA causes of action, including the “because of”
language in the CFRA. Instead, it assumed McDaniel’s CFRA
interference and retaliation claims are “based on adverse
employment decisions that were made because of a disability.”
(Italics added.) As explained, that assumption is incorrect. The
trial court therefore erred in summarily adjudicating McDaniel’s
CFRA causes of action in defendants’ favor on the grounds stated
in its order.
4
When Avila was decided, the “because of” language in
the CFRA was in section 12945.2, subdivision (l). (Avilia, supra,
165 Cal.App.4th at p. 1253.)
17
This conclusion does not end our analysis. We generally
review “the correctness of the trial court’s ruling, not its
reasoning.” (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1049.)
In their motions for summary judgment, FlashCo and
Insperity did not argue McDaniel’s CFRA claims fail for the
reasons stated by the trial court. Rather, FlashCo argued that it
was not an “employer” subject to the 2018 version of the CFRA
because it “did not have 50 or more employees within 75 miles of
the plant Plaintiff worked at in April 2018.” Insperity argued
that McDaniel’s CFRA causes of action failed because it was not
his “employer” under the factors set forth in Vernon v. State of
California (2004) 116 Cal.App.4th 114, 125, including the extent
of Insperity’s right to control the means and manner of
McDaniel’s work.
The trial court did not address whether FlashCo or
Insperity were “employers” for purposes of the CFRA. On appeal,
McDaniel only discussed the issue in his briefs in passing. While
FlashCo and Insperity discussed the issue in their background
section on their brief, they did not make legal arguments or cite
authorities regarding the matter.
After the case was fully briefed, pursuant to Government
Code section 68081, the court advised the parties they could file
letters concerning the effect, if any, of the holding and discussion
in Avila regarding the CFRA on the issues raised by McDaniel on
appeal. The court did not ask the parties to brief the issue of
whether FlashCo and/or Insperity were employers for purposes of
the CFRA.
In their responsive letter, FlashCo and Insperity argued
Avila was “irrelevant” because they were not employers subject to
the CFRA, and Insperity was not a joint employer. For the first
18
time in this appeal, defendants cited legal authorities and made
legal arguments on these issues. FlashCo and Insperity also
argued that Avila was factually distinguishable from the present
case, though they made no attempt to argue Avila’s analysis of
the CFRA was erroneous.
In our discretion, we exercise judicial restraint and refrain
from adjudicating whether FlashCo or Insperity were employers
for purposes of McDaniel’s CFRA causes of action. The better
course is for the trial court to first adjudicate the issue on
remand.
IV. McDaniel’s Tameny Cause of Action
McDaniel’s ninth cause of action is for wrongful
termination in violation of public policy. In Tameny v. Atlantic
Richfield Co. (1980) 27 Cal.3d 167 (Tameny), the California
Supreme Court “recognized that although employers have the
power to terminate employees at will, they may not terminate an
employee for a reason that is contrary to public policy.” (Little v.
Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1076.) “[E]mployees
who assert Tameny claims must show that the important public
interests they seek to protect are ‘tethered to fundamental
policies that are delineated in constitutional or statutory
provisions.’ ” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th
66, 71.)
Here, McDaniel bases his Tameny cause of action on
defendants’ alleged violations of both the FEHA and the CFRA.
To the extent McDaniel’s Tameny cause of action is based on the
FEHA, it fails for the reasons stated above. Likewise, to the
extent McDaniel’s Tameny cause of action is based on the CFRA,
the trial court’s order was erroneous.
19
In its motion for summary judgment, FlashCo argued that
McDaniel could not prevail on his Tameny claim because he
“voluntarily resigned” from the company. Insperity argued in its
motion that McDaniel’s Tameny cause of action failed because,
among other things, Insperity was not McDaniel’s “employer” and
Insperity was not responsible for “terminating” McDaniel.
The trial court did not address these arguments. On
appeal, the parties only mention these issues in their briefs in
passing, without legal analysis and citation to authorities. We
therefore remand the matter to the trial court to adjudicate in the
first instance defendants’ arguments regarding McDaniel’s
Tameny claim not discussed in this opinion.
20
DISPOSITION
The judgment is affirmed with respect to McDaniel’s first,
second, third, fourth, fifth, and eighth causes of action. The
judgment is reversed with respect to McDaniel’s sixth, seventh,
and ninth causes of action and the matter is remanded to the
trial court for further proceedings consistent with this opinion.
The motion for sanctions of respondents FlashCo and Insperity,
dated June 8, 2022, is denied. All parties are to bear their own
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TAMZARIAN, J. *
We concur:
RUBIN, P.J.
BAKER, J.
*
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
21 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482612/ | Filed 11/9/22 P. v. Price CA4/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061372
v. (Super. Ct. No. 17WF2059)
KENNETH WAYNE PRICE, OPINION
Defendant and Appellant.
Appeal from a postjudgment order of the Superior Court of Orange County,
Michael J. Cassidy, Judge. Affirmed.
Sheila O’Connor, under appointment by the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
Defendant Kenneth Wayne Price appeals from a postjudgment order
denying his petition for resentencing under Penal Code section 1170.95 (now Pen. Code,
1
§ 1172.6). Appointed counsel filed a brief pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende), setting forth the facts of the case and requesting that we review the
entire record. Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), appointed
counsel identified an issue to assist us in conducting our independent review. Defendant
was granted 30 days to file written argument on his own behalf, but he has not done so.
We have examined the entire record but have not found an arguable
appellate issue. Accordingly, we affirm the postjudgment order.
FACTS
Defendant was charged by information with attempted murder, shooting at
an occupied motor vehicle, possession of firearm by a felon, possession of ammunition
by a prohibited person, as well as certain firearm-related enhancements. Defendant was
convicted by a jury only of attempted murder and was acquitted on the other counts; the
enhancements were found to be not true. Defendant was sentenced to nine years in
prison, along with two additional one-year terms arising from certain prior convictions.
On appeal, these term enhancements were struck down as a result of subsequent
enactments by the Legislature, but the conviction was affirmed. (People v. Price (Oct. 7,
2020, G057277) [nonpub. opn.].)
Defendant filed a petition for resentencing under section 1172.6, which
requires resentencing of defendants convicted of murder, manslaughter, or attempted
murder if the defendant could not today be convicted of that crime as a result of the
Legislature’s changes to Penal Code sections 188 and 189, dealing principally with the
1
Effective June 30, 2022, Penal Code section 1170.95 was renumbered
section 1172.6, with no change in text. (Stats. 2022, ch. 58, § 10.)
2
natural and probable consequences doctrine. The trial court appointed counsel and held a
hearing on the matter.
The trial court concluded defendant was not eligible for relief under section
1172.6. It noted the jury had not been instructed on the natural and probable
consequences doctrine, and that on appeal this court (in affirming the original conviction)
concluded the jury found the defendant aided and abetted the attempted murder with an
intent to kill. Defendant timely appealed.
DISCUSSION
We have examined the record in accordance with our obligations under
Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and we find no arguable
issues on appeal. Defendant himself has not filed a supplemental brief raising any issues
for our review. (People v. Kelly (2006) 40 Cal.4th 106, 110, 120, 124.) The issue
suggested by appointed counsel has no merit.
DISPOSITION
The postjudgment order is affirmed.
SANCHEZ, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
3 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482609/ | Filed 11/9/22 Selene Finance v. First Group Investments CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
SELENE FINANCE LP,
Plaintiff and Appellant, C092537
v. (Super. Ct. No. 34-2013-
00146947-CU-MC-GDS)
FIRST GROUP INVESTMENTS, LLC, et al.,
Defendants and Respondents.
Selene Finance, LP (Selene Finance) obtained a default judgment against Patricia
Wood, Michael Wood, Clinton Henson, and Roseville Telephone Company in a judicial
foreclosure action. First Group Investments, LLC (FGI) purchased real property
belonging to Patricia Wood and Clinton Henson at an execution sale conducted by the
Sacramento County Sheriff (Sheriff) pursuant to a writ to satisfy the judgment in favor of
Selene Finance. Although Selene Finance informed the Sheriff that it wanted to set the
opening bid at $205,800.00, the Sheriff did not announce that amount as an opening bid
and FGI purchased the property for a penny. Selene Finance appeals from the trial court
order denying its motions to set aside the sale and the sheriff’s deed to FGI.
1
According to Selene Finance, (1) even though Code of Civil Procedure
section 701.6801 provides that an execution sale is absolute and shall not be set aside for
any reason, a trial court may grant a judgment creditor equitable relief by setting aside a
sale under the circumstances of this case; and (2) if section 701.680 precludes an
equitable remedy, its application violates Selene Finance’s right to due process.
Finding no merit in Selene Finance’s contentions, we will affirm the trial court’s
order.
BACKGROUND
Selene Finance obtained a judgment in the amount of $227,339.02, to be satisfied
from proceeds of the sale of a property. The judgment provided that a deed of trust was
foreclosed and a writ of sale would issue ordering the Sheriff to conduct a sale of the
property to satisfy the obligation owing on a note. Selene Finance could purchase the
property at the sale and use a credit bid up to the full amount of the judgment. Upon
completion of the sale, the Sheriff was authorized to execute and deliver a deed to the
purchaser. The trial court retained jurisdiction for issues relating to the judgment and
sale of the property.
On November 19, 2019, counsel for Selene Finance instructed the Sheriff, among
other things: “Per the client, please set the opening bid amount at $205,800.00.”
Sheriff’s representative Klarissa Esio informed Jimmy Tran, a law clerk at the office of
counsel for Selene Finance, “Your minimum bid request looks good. Please resubmit
with a signature.” Esio also stated, “Keep in mind that if the property is not sold, the levy
will be released. I just want to make that clear since your minimum bid is up there. If
there are potential bidders, they may not be able to beat this minimum bid you have set
for the property.” Tran replied that he had confirmed with counsel for Selene Finance
1 Undesignated statutory references are to the Code of Civil Procedure.
2
that Selene Finance would bid $205,800.00, so if there were no outside bidders then the
property would be sold to Selene Finance for the credit bid amount. Tran added, “The
last sale we had in California, the property was sold for $1.00, so please give me a call if
you still have any concerns or questions.”
The sale took place the next day. John Gill, manager of FGI, attended the sale.
He was the only bidder present. He asked the deputy conducting the sale whether there
was an opening bid and was told the opening bid was $0. Gill bid a penny. He did not
know about the written instructions from Selene Finance setting the opening bid at
$205,800.00. The property was sold to FGI for a penny, and the Sheriff executed a
Sheriff’s deed under writ of sale to FGI.
The following day, Sheriff’s representative Jami Wright told Tran, “We started the
bid at the requested price but nobody bid. Therefore, we had to open it up to the highest
bidder who bid $0.01. Since there were no further bids, it was sold to the highest bidder
for $0.01. This sale had no minimum bid as there were no superior state tax liens.”
Sheriff’s representative Esio then followed up, stating: “We did receive the signed
opening bid; however, as it is not codified that we have to follow such instructions, your
opening bid was not announced at the sale. [¶] In my early communication with you on
11/7/19 at 9:58 a.m., we recommended that you submit additional instructions by
November 18th at the least, so that we would have everything reviewed thoroughly and
ready to go by the sale date.”
Charles Nunley, counsel for Selene Finance, spoke with Gill the day after the sale.
According to Nunley, he told Gill the Sheriff had conducted the sale in contravention of
the bidding instructions and Selene Finance would record a lis pendens pending a formal
agreement to set aside the sale; and Gill was willing to consider voluntarily setting aside
the sale on terms to be agreed upon, but did not respond to Nunley’s further
communications. But according to Gill, although he received a call from Nunley on
November 21, 2019, Nunley did not say he would record a lis pendens, Gill did not
3
indicate he would set aside the sale, and Gill received no other communication from
Nunley other than a voicemail message on April 14, 2020.
Upon the request of Selene Finance and with the belief that the sale would be set
aside, the Sacramento County Counsel put the recording of the Sheriff’s deed on hold.
However, the Sheriff recorded the deed on January 28, 2020, believing it had a statutory
duty to record the sale within a certain time frame. Selene Finance recorded a lis pendens
on February 7, 2020.
Selene Finance filed a motion in the foreclosure action to set aside the sale and
Sheriff’s deed, and separately moved to set aside the sale and deed pursuant to
section 473. Sacramento County did not oppose the motions, but FGI intervened and
opposed them.
The trial court denied the motions. Interpreting section 701.680, the trial court
ruled that the sale was absolute and may not be set aside except by a judgment debtor
when the purchaser was a judgment creditor and there were irregularities in the sale,
circumstances that did not apply in this case. The trial court said there was no room in
the statutory scheme for a judgment creditor to deprive a third party purchaser at a
judicial foreclosure sale of his interest in the property by bringing an action to set aside
the sale. The trial court rejected Selene Finance’s due process claim, finding the case
Selene Finance cited inapposite and that Selene Finance had notice and an opportunity to
appear at the sale but elected not to do so. Selene Finance appeals from the order
denying its motions.
We granted the application of California Mortgage Association to file an amicus
curiae brief in support of Selene Finance, and we have considered the brief.
DISCUSSION
I
According to Selene Finance, even though section 701.680 provides that an
execution sale is absolute and shall not be set aside for any reason, a trial court may grant
4
a judgment creditor equitable relief by setting aside an execution sale when the levying
officer fails to follow the bid instructions and a third party purchaser takes advantage of
the levying officer’s error, obtains the property for a nominal sum, and refuses to unwind
the sale when notified of the error. FGI counters by citing Amalgamated Bank v.
Superior Court (2007) 149 Cal.App.4th 1003 (Amalgamated Bank) for the proposition
that under section 701.680, Selene Finance lacks standing to set aside the sale.
“ ‘After obtaining a money judgment, the judgment creditor creates a judgment
lien by recording an abstract or certified copy of the judgment with the county recorder.
[Citation.] Subject to certain exceptions, the lien attaches to all real property interests
owned by the judgment debtor in that county. [Citation.] After obtaining a judgment
lien, the creditor must take additional steps to collect on the judgment, and the usual
method is to levy on specific property by writ of execution. [Citation.]’ [Citation.]
A levy in the context of execution on real property is the act by which property to be
taken and sold is designated or set aside. [Citation.] ‘The judgment creditor obtains from
the county clerk a writ of execution, directing the sheriff or other levying officer to
enforce the judgment. [Citation.] The creditor delivers the writ to the levying officer
with instructions including a description of the property to be levied upon. [Citation.]
The officer levies on real property by recording a copy of the writ and a notice of levy
with the county recorder. [Citation.] The levy creates an execution lien on the property.
[Citation.] Service of a copy of the writ and notice of levy on the judgment debtor
triggers a 120-day grace period during which the debtor may redeem the property from
the lien. [Citation.] Only after this period expires may the levying officer then proceed
to notice the property for sale. [Citation.]’ ” Wells Fargo Financial Leasing, Inc. v. D &
M Cabinets (2009) 177 Cal.App.4th 59, 69.)
Division 2, chapter 3 of the Enforcement of Judgments Law (§ 680.010 et seq.)
governs the enforcement of a money judgment by writ of execution. (§ 699.010; Lee v.
Rich (2016) 6 Cal.App.5th 270, 278.) Section 701.510 et seq., part of chapter 3, governs
5
sales conducted by a levying officer of property that has been levied upon. (§ 716.020.)
When the purchaser of an interest in real property at a sale conducted under a writ of
execution pays the amount due to the levying officer, the levying officer conducting the
sale must execute and deliver a deed of sale to the purchaser. (§ 701.660.) A sale of
property pursuant to section 701.510 et seq. is absolute and shall not be set aside for any
reason, except in the circumstances set forth in section 701.680, subdivision (c)(1).
(§ 701.680, subd. (a).) Section 701.680, subdivision (c)(1) provides that if a sale was
improper due to irregularities in the proceedings, the judgment debtor may commence an
action within 90 days to set aside the sale if the purchaser was the judgment creditor. In
addition, section 701.680 does not affect a judgment debtor’s equitable right of
redemption. (§ 701.680, subd. (e).) But section 701.680 does not provide any other
exceptions to the rule that a sale of a property pursuant to section 701.510 et seq. is
absolute and shall not be set aside for any reason. (See Lee, at pp. 273, 277-279.)
Section 701.680 was added in 1982. (Stats. 1982, ch. 1364, § 2.) Subdivision
(c)(1) was amended in 1985, and the statute was amended again in 2014. (Stats. 2014,
ch. 183, § 1.) The Law Revision Commission comments regarding section 701.680,
which we may consider in construing the Enforcement of Judgments Law (Lang v. Roché
(2011) 201 Cal.App.4th 354, 263-264 & fn. 8 (Lang)), have indicated that a set-aside
action may only be brought by the judgment debtor or the judgment debtor’s successor
and only if the sale was made to the judgment creditor and the action is brought within a
specified period of time. (16 Cal. Law Revision Com. Rep. (1982) p. 1371; 18 Cal. Law
Revision Com. Rep. (1985) p. 362.) Although the statute indicates it does not eliminate a
judgment debtor’s equitable right of redemption (§ 701.680, subd. (e)), there is no
statutory mention of a judgment creditor’s equitable right to set aside a sale.
Amicus curiae argues there is no statutory mention of a judgment creditor’s
equitable rights because the focus of section 701.680 is on limiting the ability of
judgment debtors to undo a judicial sale and the Legislature did not consider the
6
possibility of a judgment creditor seeking to set aside a sale. But the Law Revision
Commission sought to achieve, among other things, a more equitable balance between
the interests of the judgment debtor and the judgment creditor in execution sales.
(16 Cal. Law Revision Com. Rep. (1982) p. 1121.) The Law Revision Commission
considered the interests of debtors and creditors and determined that an execution sale
should be absolute except in specified circumstances. (Id. at pp. 1122, 1371.) And the
Legislature adopted the Enforcement of Judgments Law based on the Law Revision
Commission’s recommendations. (Lang, supra, 201 Cal.App.4th at p. 263.)
The circumstances referenced in section 701.680, subdivisions (c)(1) or (e) are not
present in this case. The set-aside motion was not brought by a judgment debtor and the
judgment creditor did not purchase the property. Subdivision (e) only references a
judgment debtor’s equitable redemption.
In Amalgamated Bank, supra, 149 Cal.App.4th 1003, the judgment creditor
obtained a judgment against the judgment debtor when the latter stopped making
payments on certain real property. (Id. at pp. 1008-1009.) The real property, worth
about $6.5 million, was to be sold by the Sheriff pursuant to a writ of execution. (Id. at
p. 1009.) Representatives of the judgment creditor intended to place an opening bid of
$6 million at the sale but did not arrive on time. (Id. at p. 1009.) A third party purchaser
was the only bidder at the sale and bought the property for $2,000. (Ibid.) The judgment
creditor filed an action to set aside the Sheriff’s deed based on irregularities in the
conduct of the sale and on equitable grounds. (Id. at pp. 1008-1009, 1018.) This court
held that under section 701.680, upon payment of the purchase price, the Sheriff's sale to
the third party purchaser was absolute and could not be set aside, and the judgment debtor
had not exercised a right of redemption. (Amalgamated Bank, at p. 1018.) This court
explained “[t]here is simply no room in the statutory scheme for a judgment creditor (for
whose benefit the foreclosure sale was held in the first place) to deprive a third party
purchaser at a judicial foreclosure sale of his interest in the property by bringing an action
7
to set aside the sale.” (Ibid.; see Gonzalez v. Toews (2003) 111 Cal.App.4th 977, 981-
983 [section 701.680 is “crystal clear”].)
Section 701.680 encourages the finality of execution sales. (Amalgamated Bank,
supra, 149 Cal.App.4th at p. 1018.) It precludes the motion by Selene Finance to set
aside the Sheriff’s sale and deed. (18 Cal. Law Revision Com. Rep. (1985) p. 362;
Amalgamated Bank, at p. 1018; 12 Miller & Starr, California Real Estate (4th ed. 2015)
§ 42:79 [judgment creditor has no standing to attack the validity of a judicial foreclosure
sale conducted by sheriff's auction on the ground of irregularities in the conduct of the
sale]; 5 Miller & Starr, California Real Estate (4th ed. 2015) § 13:281 [on the payment of
the purchase price the sale is absolute, subject only to the right of redemption].)
Selene Finance nevertheless urges that it is entitled to relief under a court’s broad
equitable powers. But the Legislature has limited the circumstances under which an
execution sale may be set aside. (§ 701.680, subds. (c), (e).) The court’s inherent
equitable power may not be exercised in a manner inconsistent with a statute. (Kraus v.
Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 131, fn. 14, superseded by
statute on another point as stated in Arias v. Superior Court (2009) 46 Cal.4th 969, 977.)
Except where legislative action impinges on the exercise of fundamental judicial powers
and violates the separation of powers, a statute may specify the relief available and limit
the equitable relief a court may grant. (Krause, at p. 131, fn. 14; Bloniarz v. Roloson
(1969) 70 Cal.2d 143, 147; Olivera v. Grace (1942) 19 Cal.2d 570, 575.)
Moreover, even if the balance of equities favored Selene Finance in relation to the
Sheriff (a matter we need not and do not decide), there is no evidence the balance of
equities favored Selene Finance in relation to FGI. Selene Finance claims FGI seized on
the Sheriff’s error to purchase the property for a penny, but there is no indication FGI or
Gill knew the Sheriff had made an error. Selene Finance fails to show that FGI did
anything to deny Selene Finance a regular course of judicial proceedings. (Hagar v.
8
Reclamation Dist. No. 108 (1884) 111 U.S. 701, 708 [28 L.Ed. 569] [due process requires
a regular course of judicial proceedings].)
Selene Finance asserts for the first time in its appellate reply brief that the
execution sale was not conducted pursuant to section 701.510 et seq. because the Sheriff
did not recognize the highest bid as required by section 701.570, subdivision (b). We do
not consider late claims. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10;
Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
II
Selene Finance also asserts that if section 701.680 precludes equitable relief to a
judgment creditor, its application in this case violates Selene Finance’s constitutional
right to due process of law.
We review de novo whether a statute is constitutional. (Stuard v. Stuard (2016)
244 Cal.App.4th 768, 781.) We presume the statute is valid unless a clear conflict with
the state or federal Constitution is established. (Ibid.) When considering whether a
facially valid statute has been applied in a constitutionally impermissible manner, we
evaluate the facts of to determine whether application of the statute resulted in
deprivation of a protected right. (Ibid.) The party challenging the statute bears the
burden of establishing that it was unconstitutional as applied. (Coffman Specialties, Inc.
v. Department of Transportation (2009) 176 Cal.App.4th 1135, 1145.)
Selene Finance relies on Lang, supra, 201 Cal.App.4th 254, but the facts of that
case are nothing like the circumstances here. (See id. at pp. 257, 264-265 & fn. 9 [use of
void default judgment to seize property violated due process].) Here, Selene Finance
does not contend the judgment was void, and it had notice of the execution sale. Selene
Finance argues notice of the sale is not the issue, the issue is lack of notice of what
occurred at the auction. But nothing in the record shows that Selene Finance did not have
an opportunity to attend the sale. Selene Finance also does not demonstrate that it is
9
without a remedy. (§ 687.040, subd. (a); Gov. Code, § 26664.) It fails to demonstrate
that section 701.680, as applied to it, violated due process.
Selene Finance contends, without analysis, that the Sheriff’s actions constitute a
governmental taking without just compensation. We do not consider claims not
supported by legal analysis. (Okasaki v. City of Elk Grove (2012) 203 Cal.App.4th 1043,
1045, fn. 1; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672, fn. 3.)
DISPOSITION
The trial court’s order denying Selene Finance’s motion to set aside the judicial
foreclosure sale and sheriff’s deed is affirmed. Respondents shall recover their costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/S/
MAURO, J.
We concur:
/S/
ROBIE, Acting P. J.
/S/
DUARTE, J.
10 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482608/ | Appellate Case: 22-3000 Document: 010110766276 Date Filed: 11/09/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 9, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
TAMATHA HENNESSEY,
Plaintiff - Appellant,
v. No. 22-3000
UNIVERSITY OF KANSAS HOSPITAL
AUTHORITY,
Defendant - Appellee.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 2:21-CV-02231-EFM-TJJ)
_________________________________
Mary Beth Beasley and April Fortner, University of Colorado Law School Appellate
Advocacy Practicum (Matthew Cushing on the briefs), Boulder, Colorado, for Plaintiff –
Appellant.
J. Wesley Smith, Simpson, Logback, Lynch, Norris, P.A. (Trevin E. Wray with him on
the brief), Overland Park, Kansas, for Defendant – Appellee.
_________________________________
Before BACHARACH, McHUGH, and MORITZ, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
Appellate Case: 22-3000 Document: 010110766276 Date Filed: 11/09/2022 Page: 2
Tamatha Hennessey alleges a radiology technician sexually assaulted her during
her visit to the University of Kansas hospital for emergency medical care. Proceeding pro
se, Ms. Hennessey brought a civil action for negligent supervision against the University
of Kansas Hospital Authority (“UKHA”), which oversees operation of the hospital.
UKHA moved to dismiss the action, arguing Ms. Hennessey failed to plead facts
supporting subject matter/diversity jurisdiction and that it is entitled to sovereign
immunity. UKHA premised both arguments on it being an arm of the state of Kansas and
therefore entitled to the same immunities as the state. But UKHA failed to support its
motion with any evidence demonstrating it is an arm of the state or any analysis of the
factors governing whether a state-created entity is an arm of the state. The district court,
relying on the statutory scheme creating UKHA, Kan. Stat. Ann. §§ 76-3301–3323 (the
“University of Kansas Hospital Authority Act” or the “Act”), took it upon itself to
analyze whether UKHA is an arm of the state. Finding the Act characterizes UKHA as an
entity of the state, UKHA is not autonomous from the state, and UKHA is concerned
with state-wide rather than local functions, the district court concluded UKHA is an arm
of the state and, therefore, dismissed Ms. Hennessey’s action.
Ms. Hennessey appeals, raising three arguments: (1) a procedural argument that
the burden is on UKHA to demonstrate it is an arm of the state and it failed to meet this
burden by not presenting any evidence and not arguing the factors governing the arm-of-
the-state analysis; (2) a substantive argument that, regardless of the burden, the
University of Kansas Hospital Authority Act supports the conclusion that UKHA is not
2
Appellate Case: 22-3000 Document: 010110766276 Date Filed: 11/09/2022 Page: 3
an arm of the state; and (3) a fallback argument that a remand for limited discovery and
presentation of evidence is appropriate.
We now join every other circuit to consider the issue and hold the burden falls on
the entity asserting it is an arm of the state. UKHA did not meet its burden. Furthermore,
while our precedent permits a district court to raise the arm-of-the-state issue sua sponte,
the district court erred in concluding that UKHA is not autonomous under the language of
the University of Kansas Hospital Authority Act. Accordingly, we vacate the district
court’s order granting UKHA’s motion to dismiss and remand for further proceedings.
I. BACKGROUND
A. Factual Allegations
Ms. Hennessey alleges the following facts in her pro se complaint.1 See Moore v.
Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006) (“[A]ll well-pleaded factual allegations in
the complaint are accepted as true and viewed in the light most favorable to the
nonmoving party.” (quotation marks and ellipsis omitted)).
After suffering from right shoulder and left jaw pain for a few weeks,
Ms. Hennessey sought treatment at the University of Kansas Hospital Emergency
Room. A nurse ordered an MRI and CT scan. Jonathan McIntire, a radiology
technician, was assigned to perform the tests. Mr. McIntire took Ms. Hennessey to a
1
Although Ms. Hennessey is represented by counsel on appeal, she proceeded
pro se in the district court. Thus, we liberally construe her complaint and response to
UKHA’s motion to dismiss, and hold these pleadings “to a less stringent standard
than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
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radiology room in a new part of the hospital far removed from the ER. Once there,
Mr. McIntire instructed Ms. Hennessey to change into a different hospital gown and
then strapped Ms. Hennessey’s arms and legs to the MRI board. Mr. McIntire
commenced the MRI.
During the MRI, Ms. Hennessey fell asleep, possibly from Ativan medication
administered by ER staff. Ms. Hennessey awoke to Mr. McIntire “pinching her
nipples.” ROA at 12. Mr. McIntire then “groped one breast” and “put his mouth over
[Ms. Hennessey’s] breasts.” Id. at 13.
It was not until four hours after the nurse ordered the MRI and CT scan that
Mr. McIntire completed the tests and returned Ms. Hennessey to the ER.
Ms. Hennessey contends a radiology technician could complete the tests in an hour
and alleges hospital personnel were unaware she was out of the ER for a longer
period than necessary to complete the tests.
B. Procedural History
Ms. Hennessey, through counsel, initially filed a civil suit in a Wyandotte
County, Kansas district court, naming UKHA and Mr. McIntire as defendants.
UKHA moved for judgment on the pleadings, raising various immunity and failure-
to-state-a-claim defenses. Before the state district court ruled on the motion,
Ms. Hennessey and UKHA stipulated to the voluntary dismissal of the action without
prejudice.
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Proceeding pro se, Ms. Hennessey turned to federal court, filing the action
underlying this appeal in the United States District Court for the District of Kansas.2
In describing the parties, Ms. Hennessey alleged she was “a resident of the State of
Missouri residing [in] Belton, MO.” Id. at 6. And Ms. Hennessey alleged UKHA “is
and was a corporate entity established by law that operates the hospital located at
4000 Cambridge Street, Kansas City, Kansas 66106.” Id. In a section labeled
“Jurisdiction and Venue,” Ms. Hennessey pleaded that “[j]urisdiction is proper
because Defendant is a Kansas corporation and/or entity operating a hospital located
in Kansas City, Wyandotte County, Kansas.” Id. at 7. Ms. Hennessey’s filing raised a
single claim against UKHA for negligent supervision.
Supported by a three-page memorandum of law, UKHA moved to dismiss for
lack of subject matter jurisdiction and based on sovereign immunity. In pertinent
part, the memorandum of law read:
While the Petition generally states that Plaintiff is a citizen of Missouri,
she does not explicitly assert diversity jurisdiction. If she did assert
diversity jurisdiction, however, sovereign immunity would similarly
prevent the Court from allowing the case to proceed. The University of
Kansas Hospital Authority is an instrumentality of the State of Kansas,
and Eleventh Amendment immunity would prohibit a federal exercise of
personal jurisdiction as to this Defendant. See K.S.A. 76-3304(a);
Perkins v. Univ. of Kan. Med. Ctr., 2014 U.S. Dist. LEXIS 47491, *9-10
(D. Kan. Apr. 7, 2014), citing Ellis v. University of Kansas Medical
Center, 163 F.3d 1186, 1196 (10th Cir. 1998).
2
Although Ms. Hennessey filed her action in the District of Kansas, the
caption of her filing identified the court as “In The District Court of Wyandotte
County Kansas.” ROA at 6. Ms. Hennessey subsequently moved to amend or correct
the caption to identify the District of Kansas as the court in which she filed the
action, and the district court granted the motion.
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Id. at 26–27. UKHA neither submitted any evidence in support of its motion nor
identified or analyzed the factors governing whether an entity is an arm of the state.
Ms. Hennessey responded to UKHA’s motion to dismiss by arguing she (1) pleaded
the elements of diversity jurisdiction by identifying the state of residence of each
party and (2) could overcome sovereign immunity because UKHA was a corporate
entity and a political subdivision of the state. Ms. Hennessey, however, did not
request any discovery on the arm-of-the-state issue underlying UKHA’s subject
matter jurisdiction and sovereign immunity defenses.
UKHA filed a reply. On the issue of subject matter jurisdiction, UKHA
contended it was an instrumentality and arm of the state such that it was therefore not
a citizen of any state for purposes of diversity jurisdiction. But, once again, UKHA
provided no factual support and no real analysis on this point, stating only:
Plaintiff argues she invoked the jurisdiction of the United States District
Court based upon diversity of citizenship as provided for in 28 U.S.C.
§ 1332. “To sustain diversity jurisdiction there must exist an ‘actual’,
‘substantial’, controversy between citizens of different states from all
parties on the other side.” City of Indianapolis v. Chase Nat’l Bank of
City of N.Y., 314 U.S. 63, 69 (1941). First and foremost, a state is not a
citizen for purposes of diversity jurisdiction. Moor v. Cty. of Alameda,
411 U.S. 693, 717, 93 S. Ct. 1785, 1800 (1973). Defendant University
of Kansas Hospital Authority is an instrumentality of the State of
Kansas; therefore, it is not a citizen of the State for diversity purposes.
See Wilkins v. Kan. Dep’t of Labor, No. 6:12-CV-01363-JAR-KMH,
2013 U.S. Dist. LEXIS 19912, at *5 (D. Kan. Feb. 14, 2013); Perkins v.
Univ. of Kan. Med. Ctr., No. 13-2530-JTM, 2014 U.S. Dist. LEXIS
47491, at *6 (D. Kan. Apr. 7, 2014). Therefore, this Court lacks
diversity jurisdiction over Plaintiff’s claims.
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Id. at 89. As to sovereign immunity, UKHA argued (1) entities created by and
serving as alter egos of the state are entitled to sovereign immunity; and (2) it had not
waived its right to sovereign immunity. UKHA supported the former argument with
the following passage:
The University of Kansas Hospital Authority . . . was created by the
University of Kansas Hospital Act . . . in 1998. K.S.A. 76-3304(a). The
act established the Authority as “a body politic and corporate, with
corporate succession” whose exercise of rights, powers, and privileges
are “deemed and held to be the performance of an essential government
function.” Id. A nineteen-member board of directors, thirteen of which
are appointed by the governor and subject to confirmation by the senate,
governs the Authority. K.S.A. 77-3304(b). Additionally, the Act grants
the Authority the “duties, privileges, immunities, rights, liabilities, and
disabilities of a body corporate and a political instrumentality of the
state.” K.S.A 77-3308(a)(1). Therefore, the immunity to suit in federal
court granted to the State of Kansas by the Eleventh Amendment to the
United States Constitution has been bestowed upon the Authority.
Id. at 90.
The district court undertook the heavy lifting that UKHA did not undertake in
its motion to dismiss. The district court began by identifying the four factors from
Steadfast Ins. Co. v. Agriculture Ins. Co., 507 F.3d 1250, 1253 (10th Cir. 2007), that
govern the initial inquiry in the arm-of-the-state analysis—(1) state law
characterization of the entity, (2) the entity’s autonomy from the state, (3) the entity’s
finances and financial independence from the state, and (4) whether the entity
addresses matters of local or state-wide concern. Although recognizing UKHA failed
to present any evidence, the district court attempted to sua sponte analyze the four
Steadfast factors by turning to the language of the University of Kansas Hospital
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Authority Act. The district court concluded the Act characterized UKHA as an arm of
the state, entitled to the “privileges” and “immunities” of a “body corporate and a
political instrumentality of the state.” Id. at 112 (quoting Kan. Stat. Ann. § 76-
3308(a)(1)). The district court, for purposes of the fourth factor, also concluded
UKHA served the goals of the citizens of Kansas such that it addressed matters of
state-wide concern. The district court further found that the autonomy factor favored
an arm-of-the-state conclusion, looking at (1) the appointment process for UKHA’s
Board of Directors; (2) the state’s ownership of buildings in which UKHA operates;
and (3) the requirement that UKHA obtain approval from the state before repairing or
constructing any building. As for the finances factor, the district court indicated the
factor was “difficult” to analyze in the absence of evidence but observed UKHA
could not levy taxes and surmised that UKHA receives some state funding. Id. at 114.
Concluding that at least three of the Steadfast factors favored an arm-of-the-state
conclusion, the district court determined it could overlook the uncertainty on the
finances factor and that UKHA was an arm of the state. From this determination, the
district court concluded UKHA (1) was not a citizen of any state for purposes of
diversity jurisdiction such that diversity of citizenship and subject matter jurisdiction
were lacking, and (2) was entitled to sovereign immunity. Accordingly, the district
court granted UKHA’s motion to dismiss.
On appeal, Ms. Hennessey is now represented by the University of Colorado
Law School Appellate Advocacy Practicum. In her opening brief, Ms. Hennessey
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raises three arguments. First, Ms. Hennessey advances a procedural argument,
contending the burden is on UKHA to prove it is an arm of the state and it could not
have met its burden where it never identified, analyzed, or presented any evidence on
the Steadfast factors. Second, Ms. Hennessey argues an analysis of the University of
Kansas Hospital Authority Act under the Steadfast factors favors the conclusion that
UKHA is not an arm of the state. Third, and in the alternative, Ms. Hennessey
contends that if we are unsure whether UKHA is an arm of the state, we could
remand for limited discovery on the Steadfast factors, particularly the factors
regarding UKHA’s autonomy from the state and its finances.
II. DISCUSSION
We start by providing the standard of review. Then we discuss sovereign
immunity and the analytical framework and factors governing the arm-of-the-state
analysis. Next, we consider the legal question of whether a plaintiff or the entity asserting
it is an arm of the state has the burden of proof relative to the arm-of-the-state factors.
Finally, after concluding this burden falls on the entity asserting it is an arm of the state,
we assess whether UKHA met its burden.
A. Standard of Review
We review a district court’s grant of a motion to dismiss de novo. Albers v. Bd.
of Cnty. Comm’rs, 771 F.3d 697, 700 (10th Cir. 2014). Specific to a dismissal for
lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure
12(b)(1), we review the dismissal de novo but review any factual findings underlying
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the dismissal for clear error. Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1225
(10th Cir. 2001). We also “review de novo the district court’s dismissal based on
sovereign immunity.” Mojsilovic v. Okla. ex rel. Bd. of Regents for Univ. of Okla.,
841 F.3d 1129, 1131 (10th Cir. 2016).
B. Sovereign Immunity and Legal Framework for Arm-of-the-State Analysis
The Eleventh Amendment states that “[t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State.” U.S. Const. Amend. XI. Derived from this language “is the privilege
of the sovereign not to be sued without its consent.” Va. Office of Protection & Advocacy
v. Stewart, 563 U.S. 247, 253 (2011). But although the Eleventh Amendment imposes a
jurisdictional limitation on a court’s ability to hear a case against a state once raised by
the state, Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000), it “does not automatically
destroy original jurisdiction” because a “[s]tate can waive the defense,” Wisc. Dep’t of
Corrs. v. Schacht, 524 U.S. 381, 389 (1998).
“In terms of scope, Eleventh Amendment immunity extends to states and state
entities but not to counties, municipalities, or other local government entities.”
Steadfast Ins. Co., 507 F.3d at 1253; see also Sturdevant v. Paulsen, 218 F.3d 1160,
1164 (10th Cir. 2000) (“[T]he arm-of-the-state doctrine bestows immunity on entities
created by state governments that operate as alter egos or instrumentalities of the
states.” (quotation marks omitted)). “If a state entity is more like a political
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subdivision—such as a county or city—than it is like an instrumentality of the state,
that entity is not entitled to Eleventh Amendment immunity.” Steadfast Ins. Co., 507
F.3d at 1253. “Although ultimately a matter of federal law, arm-of-the-state status
must be determined in each case by reference to the particular state laws
characterizing the entity.” Sturdevant, 218 F.3d at 1164; see also Duke v. Grady
Mun. Schls., 127 F.3d 972, 975 (10th Cir. 1997) (“[T]hat federal question can be
answered only after considering the provisions of state law that define the agency’s
character.” (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 n.5
(1997))).
In assessing whether an entity is an arm of the state, we employ a two-step
process. Duke, 127 F.3d at 978; see also Hess v. Port Auth. Trans-Hudson Corp., 513
U.S. 30, 47 (1994) (“When indicators of immunity point in different directions, the
Eleventh Amendment’s twin reasons for being remain our prime guide.”).3 As an
initial, sometimes dispositive, step, we evaluate four “primary factors”:
3
Hess v. Port Authority Trans-Hudson Corp. involved an entity created by an
interstate compact with Congressional approval rather than an entity created by a
single state. 513 U.S. 30, 40–41 (1994). The Supreme Court, however, has cited
Hess, without qualification, in subsequent cases featuring arm-of-the-state analyses
involving entities created by a single state. See Auer v. Robbins, 519 U.S. 452, 456
n.1 (1997); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430 (1997). Thus,
circuit courts have presumed principles set forth in Hess are applicable to the analysis
of an intrastate entity created by a single state. Fresenius Med. Care Cardiovascular
Res., Inc. v. Puerto Rico & Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 64–
68 (1st Cir. 2003); see also Takle v. Univ. of Wis. Hosp. & Clinics Auth., 402 F.3d
768, 769–72 (7th Cir. 2005) (citing Hess while conducting analysis of entity created
by a single state).
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First, we assess the character ascribed to the entity under state law.
Simply stated, we conduct a formalistic survey of state law to ascertain
whether the entity is identified as an agency of the state. Second, we
consider the autonomy accorded the entity under state law. This
determination hinges upon the degree of control the state exercises over
the entity. Third, we study the entity’s finances. Here, we look to the
amount of state funding the entity receives and consider whether the
entity has the ability to issue bonds or levy taxes on its own behalf.
Fourth, we ask whether the entity in question is concerned primarily
with local or state affairs. In answering this question, we examine the
agency’s function, composition, and purpose.
Steadfast Ins. Co., 507 F.3d at 1253 (double emphasis added).
If these factors are in conflict and point in different directions, a court should
proceed to the second step and consider the “twin reasons” underlying the Eleventh
Amendment—avoiding an afront to the dignity of the state and the impact of a
judgment on the state treasury. Duke, 127 F.3d at 978 (quoting Hess, 513 U.S. at 47);
see also Fresenius Med. Care Cardiovascular Res., Inc. v. Puerto Rico & Caribbean
Cardiovascular Ctr. Corp., 322 F.3d 56, 65 (1st Cir. 2003) (“If the structural
indicators point in different directions, then the second stage of analysis comes into
play.”). Of these twin reasons, the “foremost” reason for sovereign immunity is
avoiding state liability for any judgment against the entity. U.S. ex rel. Sikkenga v.
Regence Bluecross Blueshield of Utah, 472 F.3d 702, 718 (10th Cir. 2006),
abrogated on other grounds by Cochise Consultancy, Inc. v. U.S. ex rel. Hunt, 139 S.
Ct. 1507, 1511 n.* (2019); see also Fresenius Med. Care Cardiovascular Res., Inc.,
322 F.3d at 66 (“[T]he circuits almost uniformly find that, when there is an ambiguity
about the direction in which the structural analysis points, the potential payment from
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the state treasury is the most critical factor in determining whether an entity is
operating as an arm of the state.” (citing 17A J.W. Moore, Moore’s Federal Practice
§ 123.23(4)(b), a 123–60 & n.51 (3d ed. 2000))); Duke, 127 F.3d at 974 (“The
Supreme Court has indicated more recently that ‘the vulnerability of the State’s purse
is the most salient factor in Eleventh Amendment determinations’” (brackets omitted)
(quoting Hess, 513 U.S. at 48)).
The focus of this judgment liability issue is on direct legal liability and not on
any indirect or practical loss of funds to the state. Sikkenga, 472 F.3d at 718; see also
Duke, 127 F.3d at 981 (“We interpret Doe to require us to focus on legal liability for
a judgment, rather than practical, or indirect, impact a judgment would have on a
state’s treasury.” (citing Doe, 519 U.S. at 429–30)). While focusing on legal liability
rather than practical effect may “ignore[] economic reality,” it “provides a clear and
workable test in this very confused area of the law. It directs courts away from
having to make case-by-case fact-specific determinations of the practical impact on
state treasuries.” Duke, 127 F.3d at 981. “Where it is clear that the state treasury is
not at risk, then the control exercised by the state over the entity does not entitle the
entity to Eleventh Amendment immunity.” Fresenius Med. Care Cardiovascular
Res., Inc., 322 F.3d at 65.
As to the dignity of the state, a court must remember that where “the state has
not clearly demarcated the entity as sharing its sovereignty, there is great reason for
caution” because “[i]t would be every bit as much an affront to the state’s dignity and
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fiscal interests were a federal court to find erroneously that an entity was an arm of
the state, when the state did not structure the entity to share its sovereignty.” Id. at
63. To this point, “[n]ot all entities created by states are meant to share state
sovereignty. Some entities may be part of an effort at privatization, representing an
assessment by the state that the private sector may perform a function better than the
state.” Id. at 64. In fact, incorrectly designating an entity as an arm of the state may
have negative consequences on the state’s goal of creating an entity with better
commercial and employee hiring bargaining power based on its independent
structure. Id.
C. Burden on Entity Asserting Arm-of-the-State Status
Before analyzing whether UKHA is an arm of the state, it is necessary to
determine whether Ms. Hennessey or UKHA bore the burden on this matter. This
question is a matter of first impression for our circuit. See Patterson v. Rural Water Dist.
2, 438 F. Supp. 3d 1258, 1268 (W.D. Okla. 2020) (“Neither the Supreme Court nor the
Tenth Circuit has decided who carries the burden of persuasion regarding Eleventh
Amendment immunity.”); see also Ross v. Colo. Dep’t of Transp., No. 11-cv-02603-
REB-KMT, 2012 WL 5975086, at *5 (D. Colo. Nov. 14, 2012). Other circuits, however,
unanimously agree that the burden falls on the entity asserting it is an arm of the state
when the issue arises solely in the context of sovereign immunity.4 See Woods v. Rondout
4
District court decisions both within our circuit and in other circuits without
precedent on the issue also advance the position that the burden falls on the entity
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Valley Central Sch. Dist. Bd. of Educ., 466 F.3d 232, 237 (2d Cir. 2006) (collecting cases
from Third, Fifth, Sixth, Seventh, and Ninth Circuits and stating, “[w]e now join these
sister courts in holding that the governmental entity invoking the Eleventh Amendment
bears the burden of demonstrating that it qualifies as an arm of the state entitled to share
in its immunity”); Fresenius Med. Care Cardiovascular Res., Inc. v. Puerto Rico &
Caribbean Cardiovascular Ctr. Corp., 322 F.3d 56, 61 (1st Cir. 2003) (“[T]he entity
asserting Eleventh Amendment immunity[] bears the burden of showing it is an arm of
the state.”). For four reasons, we adopt the position advanced by this persuasive
authority.
First, we have described sovereign immunity as a “defense” that a state or a state-
formed entity may assert. Steadfast Ins. Co., 507 F.3d at 1252. Although some exceptions
exist, the defendant typically bears the burden when asserting a defense.
Second, in assigning the burden, we are cognizant of which party possesses the
evidence on the issue. As stated by the Ninth Circuit when assigning the burden to the
asserting arm-of-the-state status. See Brady v. Office of the Cnty. Prosecutor, No. 19-
16348 (ES) (SCM), 2020 WL 5088634, at *2–3 (D. N.J. Aug. 28, 2020); Robinson v.
Paulhus, No. 19-12572 (MAS) (TJB), 2020 WL 2732132, at *2 (D. N.J. May 22,
2020); Patterson v. Rural Water Dist. 2, 438 F. Supp. 3d 1258, 1268 (W.D. Okla.
2020);Giddings v. Utah Transit Auth., 107 F. Supp. 3d 1205, 1208 (D. Utah 2015);
Ross v. Colo. Dep’t of Transp., No. 11-cv-02603-REB-KMT, 2012 WL 5975086 at
*5 (D. Colo. Nov. 14, 2012); Thomas v. Guffy, No. Civ-07-823-W, 2008 WL
2884368, at *1, *4 (W.D. Okla. July 25, 2008) (order adopting report and
recommendation with report and recommendation attached to order); Teichgreaeber
v. Memorial Union Corp. of the Emporia State Univ., 946 F. Supp. 900, 903 (D. Kan.
1996); see also Reynolds v. Flynn, No. 21-cv-01154-RM-NYM, 2022 WL 252327, at
*6 (D. Colo. Jan. 27, 2022) (placing burden on sheriff sued in official capacity to
establish county was an arm of the state).
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entity asserting arm-of-the-state status, it is a “familiar principle that, ‘when the true facts
relating to a disputed issue lie peculiarly within the knowledge of’ one party, the burden
of proof may properly be assigned to that party ‘in the interest of fairness.’” ITSI T.V.
Prods., Inc. v. Agric. Assocs., 3 F.3d 1289, 1292 (9th Cir. 1993) (brackets omitted)
(quoting United States v. Hayes, 369 F.2d 671, 676 (9th Cir. 1966)). Here, while the text
of the University of Kansas Hospital Authority Act is readily available to a would-be
plaintiff, UKHA is in possession of key evidence regarding its finances, day-to-day
operations, and operating procedures. Accordingly, it makes sense to assign the burden to
UKHA.5
Third, placing the burden on the party asserting sovereign immunity indirectly
advances one of the primary purposes of sovereign immunity. “Sovereign immunity does
not merely constitute a defense to monetary liability or even to all types of liability.
Rather, it provides an immunity from suit.” Fed. Maritime Comm’n v. S.C. State Ports
Auth., 535 U.S. 743, 766 (2002). If the burden is placed on the plaintiff to rebut a blanket
and cursory assertion of sovereign immunity like the one advanced by UKHA, the
plaintiff will need to seek limited discovery to obtain the evidence necessary to sustain
her burden. But if the burden is placed on the defendant, the defendant will put forth its
5
At oral argument, UKHA contended a plaintiff could obtain evidence on
these matters through an open records request. Aside from whether the average pro se
litigant could successfully navigate the open records request process, we doubt a
plaintiff, counseled or pro se, would pursue an open records request for information
the party could obtain through limited discovery. And, as discussed next, placing the
burden on the entity asserting arm-of-the-state status, rather than requiring limited
discovery, advances one of the primary goals of sovereign immunity.
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evidence with its motion, potentially obviating the need for discovery. And if discovery is
avoided, the district court may resolve the motion raising the sovereign immunity issue
more quickly, giving an entity entitled to sovereign immunity the benefits of immunity
sooner.
Fourth, assigning the burden to the entity asserting it is an arm of the state is
consistent with our precedent assigning the burden in a similar sovereign immunity
context. Within the context of the Foreign Sovereign Immunities Act (“FSIA”) and the
right of a foreign sovereign to assert immunity from suit, we have held the foreign
sovereign bears the initial burden of making a prima facie showing of immunity, and a
burden of rebutting evidence presented by a plaintiff to overcome that prima facie
showing. Southway v. Cent. Bank of Nigeria, 328 F.3d 1267, 1271 (10th Cir. 2003).
Indeed, other courts have found the assignment of the burden in the foreign sovereign
immunity context instructive when placing the burden on the entity asserting sovereign
immunity under the Eleventh Amendment. Woods, 466 F.3d at 238; ITSI T.V. Prods.,
Inc., 3 F.3d at 1292.
For these four reasons, and given the weight of persuasive authority, we conclude
the burden falls on UKHA to establish it is an arm of the state and, therefore, entitled to
sovereign immunity. In concluding the burden in this case falls on UKHA, we recognize
but dispel two countervailing points.
First, our precedent allows a district court to raise Eleventh Amendment sovereign
immunity sua sponte. U.S. ex rel. Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th Cir.
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2008); see also Colby v. Herrick, 849 F.3d 1273, 1276–78 (10th Cir. 2017) (raising arm-
of-the-state issue within sovereign immunity sua sponte); Elam Const., Inc. v. Reg.
Transp. Dist., 129 F.3d 1343, 1345 (10th Cir. 1997) (raising sovereign immunity sua
sponte where defendant contended it was an arm of the state and not a citizen for
purposes of 42 U.S.C. § 1983 action). On the surface, the ability of a court to raise an
issue sua sponte cuts against placing a burden on the party who might raise a defense of
entitlement to immunity. However, although a district court may raise the issue sua
sponte, “it is not obligated to do so.” Burlbaw, 548 F.3d at 942. Consistent with this
discretion, a district court may properly raise and resolve the sovereign immunity issue
sua sponte where judicially noticeable evidence clearly resolves an entity’s arm-of-the-
state status and entitlement to sovereign immunity. But a district court should refrain
from resolving the sovereign immunity issue, without evidence from the parties, where
judicially noticeable evidence on the Steadfast factors points in different directions.
Further, in instances of conflicting evidence from judicially noticeable sources, if the
district court opts to raise the sovereign immunity issue sua sponte, the burden remains
with the entity that would benefit from arm-of-the-state status. Under this framework, a
court’s ability to sua sponte raise sovereign immunity where an arm-of-the-state analysis
is required is preserved and operates in harmony with the burden falling on the entity
where the Steadfast factors point in conflicting directions based solely on judicially
noticeable evidence.
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Second, an arm-of-the-state determination not only implicates sovereign immunity
but may also impact whether the district court has subject matter jurisdiction over the
cause of action. Ms. Hennessey, in advancing only a state law claim for negligent
supervision, relied exclusively on diversity jurisdiction to bring her action in federal
court. “The district courts shall have original jurisdiction of all civil actions where the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and
costs, and is between . . . citizens of different States.” 28 U.S.C. § 1332(a). Meanwhile,
“a State is not a ‘citizen’ for purposes of diversity jurisdiction” and, by extension, an
“arm or alter ego of the State” is also not a citizen of a state. Moor v. Alameda Cnty., 411
U.S. 693, 717 (1973). Thus, if UKHA is an arm of the state, then it is not a citizen of
Kansas for purposes of diversity jurisdiction and Ms. Hennessey cannot satisfy the
“citizens of different States” requirement of § 1332(a).
It is well established that “[i]t is incumbent upon the plaintiff properly to allege the
jurisdictional facts, according to the nature of the case.” McNutt v. Gen. Motors
Acceptance Corp. of Ind., Inc., 298 U.S. 178, 182 (1936). This includes the “party
invoking diversity jurisdiction bear[ing] the burden of proving its existence.” Middleton
v. Stephenson, 749 F.3d 1197, 1200 (10th Cir. 2014). From this, one might conclude that
even though the burden is on UKHA to prove it is an arm of the state for purposes of
sovereign immunity, the burden is on Ms. Hennessey to establish UKHA is not an arm of
the state for purposes of subject matter jurisdiction. But the burden on the plaintiff to
establish jurisdiction does not extend this far. Rather, once the plaintiff sufficiently
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alleges and adequately supports that an entity was created in and principally operates
within a state, the plaintiff has met her burden and the burden shifts to the entity to
demonstrate it is an arm of the state. We reach this conclusion in part because, like in the
sovereign immunity context, it is the defendant, not the plaintiff, that possesses the
evidence essential to the arm-of-the-state inquiry. Cf. ITSI T.V. Prods., Inc., 3 F.3d at
1292. Furthermore, although the Supreme Court has stated sovereign immunity “partakes
of the nature of a jurisdictional bar,” Welch v. Tex. Dep’t of Highways & Pub. Transp.,
483 U.S. 468, 476 n.6 (1987) (quoting Edelman v. Jordan, 415 U.S. 651, 678 (1974)),
courts have already shifted the burden to the defendant on the arm-of-the-state inquiry in
the sovereign immunity context such that it is natural to also do so where the identical
inquiry impacts the diversity-of-citizenship basis for subject matter jurisdiction. Finally,
placing a burden on the entity claiming arm-of-the-state status is similar to the placement
of burdens in the foreign sovereign context, where the FSIA provides the “exclusive
source of jurisdiction for claims against foreign states or their instrumentalities,” but the
“‘foreign state [must] make[] a prima facie showing of immunity’” and may be required
to “meet its ultimate burden of proving that [an exception allowing for suit] does not
apply.” Southway, 328 F.3d at 1271 (quoting Gen. Elec. Capital Corp. v. Grossman, 991
F.2d 1376, 1382 (8th Cir. 1993)).
For these reasons, we conclude the burden is on the entity asserting it is an arm of
the state, both for purposes of sovereign immunity and for purposes of an attack on a
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prima facie showing of diversity jurisdiction. We now turn to whether UKHA met its
burden.
D. UKHA did not Meet its Burden and Remand is Required
Review of UKHA’s memorandum in support of its motion to dismiss and its reply
brief on its motion to dismiss clearly demonstrates UKHA did not even attempt to meet
its burden. Neither document so much as identified the four Steadfast factors, no less
cited evidence relevant to the factors or analyzed the factors. All UKHA did before the
district court was cite to the University of Kansas Hospital Authority Act.
Under the framework discussed earlier, a district court may sua sponte raise and
resolve the arm-of-the-state inquiry only where judicially noticeable evidence clearly
resolves the inquiry. This is not such a case. While the Act may provide a sufficient basis
to resolve two of the Steadfast factors—the state’s characterization of UKHA and
UKHA’s focus on matters of state-wide concern—in favor of UKHA being an arm of the
state, it does not support such a conclusion on the finances factor or, as we discuss later,
the autonomy factor. Accordingly, we assume the state’s characterization of UKHA and
UKHA’s focus on state-wide concerns support the district court’s decision and address
only the Steadfast factors we conclude weigh against the district court’s ruling.
1. Finances Factor
In considering the finances factor a court must look to “the amount of state
funding the entity receives and consider whether the entity has the ability to issue bonds
or levy taxes on its own behalf.” Steadfast Ins. Co., 507 F.3d at 1253; see also Sikkenga,
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472 F.3d at 721 (considering whether the bulk of an entity’s operating funds come from
its own revenues or from the state). The inability of an entity to levy taxes, combined
with its receipt of all or most of its funding from the state, will serve as a strong indicator
that the entity is an arm of the state. Duke, 127 F.3d at 980. Likewise, if an entity cannot
levy taxes and its ability to issue bonds is subject to state review or state procedures, this
is also an indicator that the entity is an arm of the state. Sturdevant, 218 F.3d at 1170.
Conversely, an entity’s ability to generate its own revenue so as not to need financial
assistance from the state supports a finding that the entity is not an arm of the state. Hess,
513 U.S. at 45. Finally, we consider the existence, or lack thereof, of regulations on how
an entity may handle its finances and whether the entity’s funds are “classified as ‘public
funds.’” Steadfast Ins. Co., 507 F.3d at 1254 (quoting Okla. Stat. tit. 82, § 861A(A)).
Without evidence of UKHA’s financing and revenue streams we are unable to
fully assess the factor. But what we do know from the text of the University of
Kansas Hospital Authority Act supports the conclusion that UKHA is not an arm of
the state. The “Findings, purpose” provision of the Act indicates the hospital needed
to have a means of earning revenues necessary for operation so as “to remain
economically viable to earn revenues necessary for its operation and to engage in
arrangements with public and private entities” and to compete with private healthcare
providers. Kan. Stat. Ann. § 76-3302(a)(6). From a more concrete perspective, the
Act gives the board of UKHA authority to set the salary of employees, including the
president, and to decide whether to provide supplemental benefits for employees.
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Kan. Stat. Ann. §§ 76-3304(l), (m), 76-3308(a)(14), 76-3311(a). UKHA also has the
power to “borrow money . . . and pledge all or any part of [its] assets therefor.” Kan.
Stat. Ann. § 76-3308(a)(6). And UKHA may make loans to corporations,
partnerships, associations, joint ventures, and other entities. Kan. Stat. Ann. § 76-
3308(e).
The Act also gives UKHA wide authority to open and maintain bank accounts.
For instance, the Act, when describing UKHA’s powers and duties, instructs that
UKHA has the power to “deposit moneys of [UKHA] in any banking institution
within or without the state or in any depository authorized to receive such deposits,
one or more persons to act as custodians of the moneys of [UKHA].” Kan. Stat. Ann.
§ 76-3308(a)(12). Similarly, a later provision of the Act states:
all moneys of [UKHA] shall be deposited in one or more bank or trust
companies in one or more special accounts. All banks and trust
companies are authorized to give security for such deposits if required
by [UKHA]. The moneys in such accounts shall be paid out on a
warrant or other orders of the treasurer of [UKHA] or any such other
person or persons as [UKHA] may authorize to execute such warrants or
orders.
Kan. Stat. Ann. § 76-3308(f) (emphasis added). From these provisions, it is clear the
legislature envisioned that UKHA would have its own funds and would manage those
funds outside of the state treasury.
Evidencing the rather obvious fact that UKHA generates revenues, the Act
authorizes UKHA to hire one or more “collection services provider[s].” Kan. Stat. Ann.
§ 76-3308(h). And, UKHA has the ability to control the amount of revenue it generates in
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that it has the power to “fix, revise, charge and collect rates, rentals, fees and other
charges for services or facilities furnished by or on behalf of [UKHA],” without the
affixing of said rates being subject to supervision or regulation by the state. Kan. Stat.
Ann. § 76-3308(a)(15).
Even if UKHA’s ability to generate revenues and control those monies was
insufficient for the finance factor to counsel against an arm-of-the-state finding, UKHA
additionally has seemingly unconstrained authority to issue bonds. An entire section of
the University of Kansas Hospital Authority Act addresses the issuance of bonds, with
the lead provision stating that UKHA
has the power and is authorized to issue from time to time [UKHA’s]
bonds in such principal amounts as the authority determines to be
necessary to provide sufficient funds for achieving any of [UKHA’s]
corporate purposes, including the payment of interest on bonds of
[UKHA], the establishment of reserves to secure such bonds, refunding
any outstanding bonds and all other expenditures of [UKHA] incident to
and necessary or convenient to carry out its corporate purposes and
powers.
Kan. Stat. Ann. § 76-3312(a)(1) (emphasis added). In managing the bonds, the
UKHA board is tasked with (1) selecting a “bond financing team, including bond
counsel and bond underwriter . . . , to provide all professional services required to the
bond issuance,” Kan. Stat. Ann. § 76-3312(b)(2); (2) pledging any part of UKHA’s
revenues and/or assets to secure the bond, Kan. Stat. Ann. § 76-3312(c); (3) limiting
“the purpose to which the proceeds of sale of bonds may be applied and pledging
such proceeds to secure the payment of the bonds,” id.; (4) limiting “the issuance of
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additional bonds” or the terms of additional bonds, id.; and (5) limiting “the amount
of moneys to be expended by [UKHA],” id.
It is also abundantly clear that any bond issued by UKHA is the sole
responsibility of UKHA and not backed by the State of Kansas. Specifically, a
provision of the Act says that “every issue of [UKHA’s] bonds shall be obligations of
[UKHA] payable out of any revenues or moneys of [UKHA].” Kan. Stat. Ann. § 76-
3312(a)(2) (emphasis added). More explicitly showing a division between UKHA
and the state relative to bonds, the Act says that “[n]either the state of Kansas nor the
regents shall be liable for bonds of [UKHA], and such bonds shall not constitute a
debt of the state or of the regents.” Kan. Stat. Ann. § 76-3312(n). The same provision
requires that a statement to this effect be printed on the face of any bond issued by
UKHA. Id. Reciprocally, the state has pledged that it “will not limit or alter the rights
. . . vested in [UKHA] to fulfill the terms of any agreements made with [bond]
holders . . . or in any way impair the rights and remedies of such holders until such
bonds [are fully paid and discharged].” Kan. Stat. Ann. § 76-3312(q). And, somewhat
like with the state’s disclaimer of liability, the board is authorized to print language
to this effect on the face of any bond it issues. Id.
Against this weighty and voluminous evidence that UKHA generates revenue,
controls its own finances, and can issue bonds, UKHA presents two less persuasive
arguments. First, UKHA argues its financial structure supports an arm-of-the-state
finding because it cannot levy taxes. But, under our precedent, an entity’s inability to
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levy taxes is emblematic of it being an arm of the state only if the entity also cannot
issue bonds without state oversight and cannot generate its own revenue. Sturdevant,
218 F.3d at 1169–1170; Duke, 127 F.3d at 980. Accordingly, UKHA’s inability to
levy taxes is of minimal weight in the calculus.
Second, UKHA notes it is subject to reporting and review requirements. It is
true that an entity being subject to reporting and auditing requirements favors an arm-
of-the-state finding. Steadfast Ins. Co., 507 F.3d at 1254–55. And the Act does
require UKHA to submit financial information for review to various state actors, in
that UKHA
shall submit to the regents, the governor and the legislature within six
months after the end of the fiscal year a report which shall set forth a
complete and detailed operating and financial statement of [UKHA]
during such year. Also included in the report shall be comprehensive
information regarding all audit reports performed in such year.
Kan. Stat. Ann. § 76-3312(p). But we are unpersuaded this consideration is capable
of swinging the finance factor in favor of an arm-of-the-state finding given the
extensive latitude the Act provides UKHA regarding the management of its finances,
its ability to generate revenue, and its ability to issue bonds.6 This is particularly true
where local governmental entities that do not benefit from sovereign immunity, such
as counties, also must make their financial information available for public
6
Additionally, it is debatable whether the requirement that an entity report its
finances falls within the finances factor rather than the autonomy factor, which we
discuss next. See Steadfast Ins. Co., 507 F.3d at 1254–55 (discussing auditing and
reporting requirements as part of autonomy factor).
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inspection. See Kan. Stat. Ann. §§ 12-866(b); 19-26,105(c), (d); 19-228(b); 19-3521.
Thus, without any evidence in the record demonstrating UKHA receives subsidies,
not to be confused with revenue streams, from the State of Kansas, the finances
factor cuts against UKHA being an arm of the state.7 This conclusion alone is
sufficient to vacate the district court’s grant of UKHA’s motion to dismiss and
remand so the parties might submit evidence on the Steadfast factors.
2. UKHA’s Reliance on Sturdevant is Misplaced
To overcome this conclusion, UKHA attempts to rely upon Sturdevant. There,
we indicated a court may conclude an entity is an arm of the state where there is
ambiguity regarding the entity’s legal liability for judgment but other factors all favor
an arm-of-the-state conclusion. Sturdevant, 218 F.3d at 1166, 1171. Three things
distinguish the present case from Sturdevant. First, as discussed, the text of the
University of Hospital Kansas Authority Act supports the conclusion that the
finances factor favors a finding that UKHA is not an arm of the state.
Second, even if one were to determine the factor was neutral, such a
conclusion would still require remand. From an evidentiary standpoint, in Sturdevant,
7
In discussing the finances factor, the district court cited a provision of the
Act allowing UKHA to receive compensation for services it provided to the
University of Kansas Medical School in the training of medical students and for
patient care services to indigent Kansas citizens. It is not apparent how these revenue
streams differentiate UKHA from a private hospital that contracts with the state and
provides like services. The proper focus is on whether the state provides financial
assistance to and subsidizes the entity. See Hess, 513 U.S. at 45 (discussing the
financial solvency of an entity and its ability to generate its own revenue). Thus, the
ability to generate these revenues cuts in favor of financial autonomy, not against it.
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the ambiguity regarding the liability for any judgment arose from the presentation of
conflicting evidence, not from the absence of evidence. Id. at 1165–66. Thus, the
entity asserting it was an arm of the state attempted to meet its burden. Here, there is
no reason to conclude ambiguity exists regarding UKHA’s finances where UKHA
merely failed to present any evidence on the subject.8
Third, and most problematic for UKHA’s reliance on Sturdevant, exercising de
novo review, we are unable to concur with the district court’s assessment that, based
exclusively on the language of the University of Kansas Hospital Authority Act, the
autonomy factor favors UKHA being an arm of the state. We begin by providing a
brief overview of how to approach the autonomy factor. We then apply that analysis,
relying on six considerations apparent from the text of the Act.9
8
If the absence of evidence permitted a finding of ambiguity, we would
incentivize an entity that bore liability for any judgment against it and with finances
independent of a state to demur from presentation of evidence on these matters,
especially in situations where the entity is in possession of the evidence. To avoid
this perverse incentive, if the entity with the burden fails to present evidence of its
finances and legal liability, and the judicially noticed evidence is unclear, the factor
counts against the entity being an arm of the state.
9
The considerations we discuss are (1) control of the entity by the governor
and legislature, (2) classification of the entity’s employees, (3) the entity’s ownership
and control over property, (4) the entity’s ability to form contracts, (5) the entity’s
ability to set policies, and (6) the ability of the entity to sue and be sued. These
considerations are not an exhaustive list, just those that other courts have relied upon
when analyzing the autonomy factor and that are apparent from the present record
evidence.
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a. Autonomy factor basics
The autonomy factor is the most complex of the four factors because it spans a
broad range of considerations. In analyzing this factor, a court must remain cognizant
that some ties and oversight will always remain between the state and an entity
created by the state. Takle v. Univ. of Wis. Hosp. & Clinics Auth., 402 F.3d 768, 771
(7th Cir. 2005). This is true even where it was the state’s intent to privatize an entity.
See id. To this point, the Seventh Circuit, when considering a very similar set of
circumstances as those underlying the formation and operation of UKHA, pointedly
opined,
[t]he strings that tie the hospital to the state are found in many cases in
which a state decides to privatize a formerly state function. They do not
require the privatization be treated as a farce in which the privatized
entity enjoys the benefits both of not being the state and so being freed
from the regulations that constrain state agencies, and of being the state
and so being immune from suit in federal court.
Id.
b. Autonomy factor considerations
i. Control of entity by governor & legislature
Turning to specifics, a common consideration in analyzing the autonomy
factor is the role the state executive branch, specifically the governor, and the state
legislature play in the operations of the entity. See id. at 770; see also Steadfast Ins.
Co., 507 F.3d at 1254; Fresenius Med. Care Cardiovascular Res., Inc., 322 F.3d at
71–72; Sturdevant, 218 F.3d at 1168–69. In many cases involving entities asserting
arm-of-the-state status, the governor and legislature respectively appoint and confirm
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members of the board that oversees the entity, and this structure weighs against the
entity’s autonomy from the state. Steadfast Ins. Co., 507 F.3d at 1254; Fresenius
Med. Care Cardiovascular Res., Inc., 322 F.3d at 71–72; Sturdevant, 218 F.3d at
1169. However, “the power to appoint is not the power to control.” Takle, 402 F.3d at
770. As such, this is but one consideration and a governor’s appointment power is not
sufficient to establish that the autonomy factor favors an arm-of-the-state finding.
Fresenius Med. Care Cardiovascular Res., Inc., 322 F.3d at 71. Rather, courts also
look at (1) the ability of the governor to remove appointees, Steadfast Ins. Co., 507
F.3d at 1254; Fresenius Med. Care Cardiovascular Res., Inc., 322 F.3d at 71; and
(2) the governor’s power to block or veto action taken by the board of the entity,
Hess, 513 U.S. at 44; Fresenius Med. Care Cardiovascular Res., Inc., 322 F.3d at 72.
While the district court concluded this consideration favored UKHA not being
autonomous from the state, we conclude the consideration produces mixed results
that favor a finding of autonomy. The board governing UKHA is composed of
nineteen members, of which thirteen were appointed by the governor and confirmed
by the legislature at UKHA’s inception. Kan. Stat. Ann. § 76-3304(b). However, the
Act greatly curtails the governor’s discretion in appointments after selection of the
first board. This is because, upon a vacancy on the board, the appointment of a new
member is a two-step process, with the board identifying two or three candidates
from whom the governor must select when making an appointment to fill the
vacancy. Kan. Stat. Ann. § 76-3304(e). Thus, while the governor had wide-ranging
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appointment power at UKHA’s inception, that power contracted long ago.
Additionally, nothing in the Act gives the governor any authority to remove a
member of the board. Rather, that function is expressly left to the board itself. Kan.
Stat. Ann. § 76-3304(j). Furthermore, although the governor appoints the majority of
board members, the Act leaves it to the board to select its leadership and to form
committees. Kan. Stat. Ann. § 76-3304(g). Likewise, the Act tasks the board, not the
governor, with power to “appoint a president who shall serve at the pleasure of the
board” and “as the chief executive officer of [UKHA].” Kan. Stat. Ann. § 76-3304(l);
see also Kan. Stat. Ann. § 76-3308(a)(14). And, interestingly, taking the mantra of
“the power to appoint is not the power to control” a step further, Takle, 402 F.3d at
770, it is the president, not the board, who “shall direct and supervise administrative
affairs and the general management of [UKHA],” Kan. Stat. Ann. § 76-3304(l). Thus,
the governor determines neither who among the board members leads the board nor
the individual in charge of overseeing the day-to-day operations of UKHA.
Accordingly, we disagree with the district court’s conclusion that this consideration
supports a finding that UKHA is under the control of the state.
ii. Classification of employees
Another common consideration within the autonomy factor is how employees
of the entity are classified, including whether they are “state” employees, whether
they must partake in state retirement and benefit programs, and whether they are
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subject to a state merit system for purposes of hiring.10 Steadfast Ins. Co., 507 F.3d at
1254; see also Takle, 402 F.3d at 771 (noting that employees remained “state
employees” but not counting this consideration significantly against autonomy where
the structure was established only to permit employees to take part in retirement
system); cf. Fresenius Med. Care Cardiovascular Res., Inc., 322 F.3d at 64
(hypothesizing that entity might gain advantage in employment market if it is not an
arm of the state and subject to state regulations and systems on hiring and firing of
employees and benefits). This consideration favors a finding of autonomy.
In multiple places, the University of Kansas Hospital Authority Act explicitly
declares that employees of the hospital and UKHA “shall not be considered state
employees” both for purposes of the Act and for purposes of any other state law or
regulation. Kan. Stat. Ann. § 76-3303(h); see also Kan. Stat. Ann. § 76-3303(n) (“A
[UKHA] employee shall not be considered to be a state employee, as such term is
defined in this act or in any other statute or regulation.”). Likewise, the Act instructs
that “nothing . . . shall be construed as placing any officer or employee of [UKHA] in
the classified or unclassified service under the Kansas civil service act.” Kan. Stat.
Ann. § 76-3311(b). And rather than placing UKHA in existing state benefit programs
and subjecting them to the state merit hiring system, the Act leaves discretion to the
10
The district court never discussed the classification of employees when
analyzing the autonomy factor.
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UKHA board to create these programs and systems and to set the terms of
employment, stating that UKHA
may employ such employees as it may require and upon such terms and
conditions as it may establish. [UKHA] shall establish personnel,
payroll, benefit and other such systems as authorized by the board . . . .
[UKHA] shall determine the qualifications and duties of its employees
subject to any statutes concerning licensure, certification or registration
under state law. The board shall develop and adopt policies and
procedures that will afford its employees grievance rights, ensure that
employment decisions shall be based upon merit and fitness or
applicants and shall prohibit discrimination because of race, religion,
color, sex, or national origin.
Kan. Stat. Ann. § 76-3311(a) (emphasis added). The Act also delegates additional
discretion to the board relative to the establishment of retirement benefits for
employees hired after the transfer of the hospital from the regents to UKHA,
permitting the board to either (1) affiliate with the state retirement system or
(2) create an independent retirement system for UKHA employees. Kan. Stat. Ann.
§ 76-3322. Accordingly, the Act largely treats UKHA like a private hospital when it
comes to hiring, firing, managing, and providing benefits for its employees.
The Act’s classification and parameters for UKHA hiring and managing
employees have all the hallmarks of UKHA being autonomous. And, through its brief
on appeal, UKHA does not identify a single provision of the Act contradicting this
conclusion. Nor have we located any such provision. Accordingly, consideration of
the classification of employees strongly favors a finding of autonomy.
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iii. Ownership & control of property
A third consideration in the autonomy factor analysis is whether the entity has
ownership and control over property. Steadfast Ins. Co., 507 F.3d at 1254; Takle, 402
F.3d at 771. Unlike the prior two considerations, this consideration demonstrates a
degree of control by the state over UKHA and favors UKHA being an arm of the
state.
As a starting point, nothing in the University of Kansas Hospital Authority Act
transfers ownership of any of the buildings or facilities in which UKHA operates
from the University of Kansas to UKHA. This, on its own, might not be of great
significance, as “[m]any private entities operate on public land or in public
buildings,” including clearly private commercial entities like “concessionaires in
airports.” Takle, 402 F.3d at 771. However, UKHA also has no hope of ever owning
any new buildings or facilities because the Act instructs that even if UKHA finances
the construction of buildings and facilities, “the buildings and facilities constructed
shall become the property of Kansas upon completion and acceptance by the
secretary of administration.” Kan. Stat. Ann. § 76-3308a(a). Moreover, UKHA is not
free to undertake the construction of new buildings or facilities or to repair or
renovate existing buildings and facilities without first obtaining approval from the
state board of regents and the secretary of the administration at the University of
Kansas. Kan. Stat. Ann. § 76-3308a(a)–(b). To add to the web of oversight and state
control over buildings and facilities, the board of regents may not approve any capital
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improvement proposed by UKHA without consulting with the State Building
Construction Joint Committee. See id. Thus, when it comes to the most tangible and
valuable property, UKHA lacks autonomy.
Provisions of the Act governing UKHA’s control over intangible property and
over tangible and real properties that are not buildings or facilities take a generally
different tack. The Act envisioned properties of this nature might be transferred from
the University of Kansas to UKHA on the date that responsibility for operation of the
hospital was transferred from the regents to UKHA.11 Kan. Stat. Ann. § 76-3309(a).
Of more consequence and certainty, the Act gives UKHA the power to
purchase, lease, trade, exchange, or otherwise acquire, maintain, hold,
improve, mortgage, sell, lease and dispose of personal property,
whether tangible or intangible, and any interest therein; and to
purchase, lease, trade, exchange or otherwise acquire real property or
any interest therein, and to maintain, hold, improve, mortgage, lease
and otherwise transfer such real property, so long as such transactions
do not conflict with the mission of the authority as specified in th[e] act.
Kan. Stat. Ann. § 76-3308(a)(7) (emphasis added). Likewise, UKHA has the power
to “acquire space, equipment, services, supplies and insurance necessary to carry out
the purposes of th[e] act.” Kan. Stat. Ann. § 76-3308(a)(11). The board has additional
powers to regulate the use of property, in that the Act tasks it with “develop[ing]
policies and procedure generally applicable to the procurement of goods, services and
11
The Act goes on to say that “[a]ny disputes that arise in the transfer of
property from the university to [UKHA] shall be resolved by the governor.” Kan.
Stat. Ann. § 76-3309(d). This provision demonstrates a degree of control by the state,
indicating UKHA might be an arm of the state, as a typical dispute over property
would be resolved through judicial channels.
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construction.” Kan. Stat. Ann. § 76-3308(a)(9). And the board is tasked with the
power to “establish policies and procedures regarding . . . the use, occupancy or
operation of any [UKHA] facility,” with said policies and procedures “not . . . subject
to supervision or regulation by any commission, board, bureau or agency of the
state.” Kan. Stat. Ann. § 76-3308(a)(15) (emphasis added).
Overall, while the legislature’s decision not to transfer existing buildings and
facilities to UKHA may not be surprising, UKHA’s inability to own buildings and
facilities it constructs with funds from its revenues cuts against UKHA having
autonomy from the state. And while UKHA has authority over other types of
property, its authority here is not so vast as to swing the consideration against an
arm-of-the-state conclusion.
iv. Ability to form contracts
Another consideration, albeit one discussed with less frequency, is an entity’s
ability to form its own contracts with government entities and commercial
enterprises. Sikkenga, 472 F.3d at 719–20. This consideration overwhelmingly favors
UKHA having autonomy from the state because the University of Kansas Hospital
Authority Act contains at least five separate provisions giving the board and UKHA
power to form contracts without approval or oversight from the state or any state
agency. First, the “Findings, purpose” section of the Act indicates that, to provide the
desired level of care, the hospital needed freedom “to engage in arrangements with
public and private entities.” Kan. Stat. Ann. § 76-3302(a)(6). Second, the Act grants
36
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UKHA the power to “develop policies and procedures generally applicable to the
procurement of goods [and] services,” Kan. Stat. Ann. § 76-3308(a)(9), which
naturally implicates the formation of contracts with commercial entities. Third, the
Act delegates to UKHA the power to “contract for and to accept any gifts, grants and
loans of funds, property, or any other aid.” Kan. Stat. Ann. § 76-3308(a)(10)
(emphasis added). Fourth, the Act also delegates to UKHA the power to “participate
in joint ventures with individuals, corporations, governmental bodies or agencies,
partnerships, associations, insurers or other entities to facilitate any activities or
programs.” Kan. Stat. Ann. § 76-3308(c). Fifth, and directly to the point, the Act
grants UKHA the broad and unregulated power to
make and execute contracts, guarantees or any other instruments and
agreements necessary or convenient for the exercise of its powers and
functions including, without limitation, to make and execute contracts
with hospitals or other health care businesses to operate and manage any
or all of the hospital facilities or operations and to incur liabilities and
secure the obligations of any entity or individual.
Kan. Stat. Ann. § 76-3308(a)(5) (emphasis added).
Similar to the classification-of-employees consideration, UKHA’s brief on
appeal does not identify a single statutory provision placing any direct limit or any
state oversight on UKHA’s ability to enter into contracts. And our review of the Act
identifies no such provision. Accordingly, consideration of UKHA’s ability to form
contracts strongly supports a finding that UKHA is autonomous from the state.
37
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v. Ability to set policies
An entity’s ability to set its own policies, without oversight and control from
the state or a state agency, is instrumental in the entity being autonomous from the
state. Sikkenga, 472 F.3d at 720. Conversely, if day-to-day operations of an entity
were controlled by the state, autonomy would almost certainly not exist. The
University of Kansas Hospital Authority Act unambiguously provides UKHA
unrestricted power to set policies governing its day-to-day operations. For instance,
UKHA has the power to “establish policies and procedures regarding any services
rendered for the use, occupancy or operation of any [UKHA] facility” and the
policies established are “not to be subject to supervision or regulation by any
commission board, bureau or agency of the state.” Kan. Stat. Ann. § 76-3308(a)(15).
Similarly, the Act grants to the board of UKHA the power to “adopt, repeal and
amend such rules, procedures and bylaws, not contrary to law . . ., as it deems
expedient for its own governance and for the governance and management of
[UKHA].” Kan. Stat. Ann. § 76-3304(k). And, as noted earlier, the president, who is
selected by and serves at the pleasure of the board, is tasked with supervising and
managing UKHA’s affairs. Kan. Stat. Ann. § 76-3304(l). If these three provisions do
not demonstrate UKHA’s control over its own affairs free of state oversight, a fourth
provision definitively does. Under the provision of the Act entitled “Cessation of
regents’ authority of hospital operations,” UKHA assumed full control of the hospital
upon its creation, with the provision stating, “[f]ollowing the creation of [UKHA]
38
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and on the transfer date under th[e] act, the regents shall have no further control over,
or responsibility for the operation of the university of Kansas hospital.” Kan. Stat.
Ann. § 76-3310. In sum, the consideration regarding the power to set policies and
control the day-to-day operation of the hospital strongly favors UKHA being
autonomous.12
vi. Ability to bring suit on own behalf
A final consideration courts have looked at is the ability of the entity to sue
and be sued, with the existence of such ability supporting a finding that the entity is
autonomous. Sikkenga, 472 F.3d at 719; see also U.S. ex rel. Oberg v. Penn. Higher
Educ. Assistance Agency, 804 F.3d 646, 668 (4th Cir. 2015); cf. Daniel v. Univ. of
Tex. SW Med. Ctr., 960 F.3d 253, 259 (5th Cir. 2020) (considering whether an entity
can sue or be sued as a standalone fifth factor rather than as part of the autonomy
analysis). Here, the University of Kansas Hospital Authority Act directly speaks to
this consideration as UKHA “shall have all the powers necessary to carry out the
purposes and provision of th[e] act, including, without limitation, the [power] to . . .
sue and be sued in its own name.” Kan. Stat. Ann. § 76-3308(a). Indeed, UKHA has
12
The only limitation on UKHA’s ability to set its own policies involves the
performance of abortions in UKHA’s facilities as the Act instructs that “no abortion
shall be performed, except in the event of a medical emergency, in any medical
facility, hospital or clinic owned, leased or operated by [UKHA].” Kan. Stat. Ann.
§ 76-3308(i). Viewed in totality with the otherwise unlimited and unregulated control
vested in UKHA regarding use and operation of the hospital and associated facilities,
this one carveout carries little weight in the context of an autonomy and arm-of-the-
state analysis.
39
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been a party in over a dozen suits before the Kansas Court of Appeals. See e.g., Univ.
of Kan. Hosp. Auth. v. Bd. of Cnty. Comm’rs of Franklin Cnty., 469 P.3d 806 (Kan.
Ct. App. 2020); Clayton v. Univ. of Kan. Hosp. Auth., 388 P.3d 187 (Kan. Ct. App.
2017); Univ. of Kan. Hosp. Auth. v. Bd. of Cnty. Comm’rs of Wyandotte Cnty., 313
P.3d 60 (Kan. Ct. App. 2013); Univ. of Kan. Hosp. Auth. v. Yang, 293 P.3d 816 (Kan.
Ct. App. 2013) (unpublished table decision); Univ. of Kan. Hosp. Auth. v. Bd. of
Comm’rs of Cnty. of Wabaunsee, 251 P.3d 673 (Kan. Ct. App. 2011) (unpublished
table decision). Accordingly, this consideration favors a finding of autonomy.
vii. Totality of considerations
When viewing the considerations together, we conclude the autonomy factor,
based only on the language of the University of Kansas Hospital Authority Act,
favors concluding that UKHA is an autonomous entity and not an arm of the state.
Alternatively, at best, this factor is neutral for UKHA’s arm-of-the-state position.
The considerations surrounding the classification of employees, the ability to form
contracts, the ability to establish policies and govern day-to-day affairs without
interference from the state, and the ability to sue all unquestionably favor autonomy.
Meanwhile, the remaining two considerations—control by the governor and
legislature and ownership of property—have mixed analyses, with some aspects
favoring a finding of autonomy and other aspects countenancing against such a
finding. Furthermore, the aspects weighing against a finding of autonomy are ones on
which other courts, when analyzing whether a healthcare provider was an arm of the
40
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state, have placed limited importance. See Takle, 402 F.3d at 771 (observing that
there will always be strings between state and entity created by the state and
downplaying importance of state owning property used by entity); see also Oberg,
804 F.3d at 672 (placing minimal weight on annual reporting requirement placed on
entity); Fresenius Med. Care Cardiovascular Res., Inc., 322 F.3d at 71–72
(concluding entity autonomous and not arm of the state even though governor had
wide authority to appoint board members). Therefore, we conclude this is not a case
where an entity asserting arm-of-the-state status can overcome uncertainty regarding
its finances. As a result, the approach we employed in Sturdevant is inapplicable.
E. Summation & Disposition
As discussed above, we conclude the burden was on UKHA to present
evidence and argument demonstrating it is an arm of the state. UKHA failed to meet
this burden. Although the district court attempted to undertake that burden it erred in
conducting sua sponte review of the University of Kansas Hospital Authority Act
because, applying the Steadfast factors, (1) the finances factor appears to weigh
against an arm-of-the-state conclusion; (2) any uncertainty regarding UKHA’s
finances weighs against UKHA’s position given it bore the burden; and (3) de novo
review of the Act supports the conclusion UKHA is autonomous from the state such
that UKHA could not overcome any uncertainty regarding the finances factor.
41
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This leads us to the appropriate disposition and to how the litigation should
proceed on remand.13 We could reverse the district court’s grant of UKHA’s Federal
Rule of Civil Procedure 12(b) motion to dismiss and remand for UKHA to file an
answer. Instead, for two reasons, we take a slightly different approach and merely
vacate the district court’s order so it might receive evidence from UKHA on remand
and reevaluate whether UKHA is an arm of the state. First, such an approach is more
efficient where UKHA could renew the gist of its arm-of-the-state argument through
a Rule 12(c) motion. See Fed. R. Civ. P. 12(h) (providing that challenges to subject
matter jurisdiction may be raised at any time). Second, requiring UKHA to first file
an answer before being permitted to further pursue its arm-of-the-state argument
could subject UKHA to unnecessary litigation in the event it can muster evidence that
it is entitled to sovereign immunity. And delaying proceedings on UKHA’s arm-of-
the-state defense tilts against basic principles of fairness where we had not previously
held the burden fell on the entity asserting it is an arm of the state. Accordingly, on
remand, UKHA may opt to renew its Rule 12(b) motion or to file an answer so the
13
UKHA argues that even if we disagree with the district court’s arm-of-the-
state analysis, Ms. Hennessey failed to plead the elements of diversity of citizenship.
This argument is without merit, particularly in light of Ms. Hennessey’s pro se status
when filing her federal complaint. Ms. Hennessey alleged she is a citizen of Missouri
and UKHA is “a corporate entity established by law that operates the hospital located
at 4000 Cambridge Street, Kansas City, Kansas 66106” and “a Kansas corporation
and/or entity operating a hospital located in Kansas City, Wyandotte County,
Kansas.” ROA at 6–7. These allegations, taken as true and liberally construed, permit
the conclusion that UKHA is incorporated in and has a principal place of business in
Kansas, a state diverse from Ms. Hennessey’s residence in Missouri.
42
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case may proceed to the next step in litigation.14 If UKHA renews its Rule 12(b)
motion, the district court should employ the two-step process discussed earlier, first
considering the four structural factors from Steadfast and then, if those factors point
in different directions, considering the twin aims of sovereign immunity. See Hess,
513 U.S. at 47; Fresenius Med. Care Cardiovascular Res., Inc., 322 F.3d at 65;
Duke, 127 F.3d at 978.
III. CONCLUSION
We VACATE the district court’s order granting UKHA’s motion to dismiss and
REMAND for further proceedings consistent with this opinion.
14
If UKHA renews its Rule 12(b) motion, the motion shall be limited to the
subject matter jurisdiction and sovereign immunity grounds raised in the earlier Rule
12(b) motion. Our vacatur and remand does not provide UKHA the opportunity to
restart Rule 12(b) proceedings and advance new Rule 12(b) theories for dismissal.
43 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482611/ | Filed 11/9/22 P. v. Williams CA4/2
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072975
v. (Super.Ct.No. RIF088153)
CURTIS JOHN WILLIAMS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Reversed and remanded with directions.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland and Charles C. Ragland, Senior Assistant Attorneys
General, Eric A. Swenson, Felicity Senoski and Alan L. Amann, Deputy Attorneys General,
for Plaintiff and Respondent.
1
INTRODUCTION
Defendant and appellant Curtis John Williams filed a petition for resentencing
pursuant to Penal Code former section 1170.95,1 which the trial court denied. Defendant
appealed, arguing that his petition was improperly denied since he made a prima facie
showing that the provisions of former section 1170.95 applied to him. By opinion filed
October 8, 2020, we affirmed.
On September 28, 2022, the California Supreme Court transferred the matter back to
us with directions to vacate our decision and reconsider the cause in light of Strong, supra,
13 Cal.5th 698 and People v. Lewis (2021) 11 Cal.5th 952 (Lewis). On October 3, 2022, we
ordered our decision vacated and set a briefing schedule.
Defendant now contends the trial court almost certainly based its denial of his
petition on the felony-murder special-circumstance findings. He argues that pursuant to
Strong, the court erred in determining the jury’s true findings on the special circumstance
allegations rendered prior to the decisions in People v. Banks (2015) 61 Cal.4th 788 (Banks)
and People v. Clark (2016) 63 Cal.4th 522 (Clark), made him ineligible for relief.
Defendant maintains he made the requisite prima facie showing, and the matter should be
remanded for an order to show cause (OSC) hearing. The People concede that the matter
1 Effective June 30, 2022, the Legislature renumbered section 1170.95 as section
1172.6, without substantive change. (See People v. Strong (2022) 13 Cal.5th 698, 708, fn. 2
(Strong).) This opinion will use the statutory designation in effect at the time defendant
filed his petition where appropriate and the new statutory designation for events occurring
after the change in the law. All further statutory references will be to the Penal Code unless
otherwise indicated.
2
should be remanded for further proceedings. We reverse and remand the matter for a new
prima facie hearing.
PROCEDURAL BACKGROUND
A jury convicted defendant of second degree murder (§ 187, subd. (a), count 1), first
degree murder (§ 187, subd. (a), count 2), and rape by force in concert with another (§§ 261,
subd. (a)(2), 264.1, count 3). The jury also returned true findings on the special
circumstance allegations that the murder in count 2 was committed while defendant was
engaged in the commission of a kidnapping and a rape. (§ 190.2, subd. (a)(17)(B) & (C).)
(People v. Williams (Sept. 8, 2003, E031301) [nonpub. opn.].) The trial court sentenced
defendant to life without the possibility of parole on count 2, an indeterminate term of 15
years to life on count 1 to be served consecutively, and two years for the firearm
enhancements on counts 1 and 2 to be served consecutively. The court stayed the sentence
on count 3, pursuant to section 654.
In 2003, defendant appealed, and this court affirmed his convictions. (People v.
Williams, supra, E031301.)
On January 4, 2019, defendant filed a petition for resentencing pursuant to former
section 1170.95.
The trial court held a hearing on April 19, 2019. Defendant was represented by
counsel and said he was unsure whether the People had filed a reply to the petition. The
People stated that no reply had been filed and added: “[T]his was also a special
circumstance case, . . . It required the jury to find that the defendant aided and abetted with
3
intent to kill or was a major participant with reckless indifference. The appellate opinion is
also—its attached to our response. And found sufficient evidence of a major participant and
reckless indifference.” The court then summarily denied the petition.
DISCUSSION
Defendant argues that the court erred in denying his petition, and the matter should
be remanded for an OSC hearing. The People concede the matter should be remanded for
further proceedings. We reverse the court’s denial and remand the matter for a new prima
facie hearing.
“Senate Bill [No.] 1437 [(2017-2018 Reg. Sess.)] significantly limited the scope of
the felony-murder rule to effectuate the Legislature’s declared intent ‘to ensure that murder
liability is not imposed on a person who is not the actual killer, did not act with the intent to
kill, or was not a major participant in the underlying felony who acted with reckless
indifference to human life.’ ” (Strong, supra, 13 Cal.5th at pp. 707-708.) “Defendants who
were neither actual killers nor acted with the intent to kill can be held liable for murder only
if they were ‘major participant[s] in the underlying felony and acted with reckless
indifference to human life, as described in subdivision (d) of [Penal Code] Section 190.2’—
that is, the statute defining the felony-murder special circumstance.” (Id. at p. 708.)
“Senate Bill 1437 also created a special procedural mechanism for those convicted under the
former law to seek retroactive relief under the law as amended. [Citations.] Under newly
enacted section 1172.6, the process begins with the filing of a petition containing a
declaration that all requirements for eligibility are met [citations], including that ‘[t]he
4
petitioner could not presently be convicted of murder or attempted murder because of
changes to . . . Section 188 or 189 made effective January 1, 2019,’ the effective date of
Senate Bill 1437 [citation].” (Ibid., fn. omitted.)
“When the trial court receives a petition containing the necessary declaration and
other required information, the court must evaluate the petition ‘to determine whether the
petitioner has made a prima facie case for relief.’ [Citations.] If the petition and record in
the case establish conclusively that the defendant is ineligible for relief, the trial court may
dismiss the petition.” (Strong, supra, 13 Cal.5th at p. 708.)
“While the trial court may look at the record of conviction after the appointment of
counsel to determine whether a petitioner has made a prima facie case for . . . relief, the
prima facie inquiry . . . is limited. Like the analogous prima facie inquiry in habeas corpus
proceedings, ‘ “the court takes petitioner’s factual allegations as true and makes a
preliminary assessment regarding whether the petitioner would be entitled to relief if his or
her factual allegations were proved. If so, the court must issue an order to show cause.” ’
[Citation.] ‘[A] court should not reject the petitioner’s factual allegations on credibility
grounds without first conducting an evidentiary hearing.’ ” (Lewis, supra, 11 Cal.5th at
p. 971.) “In reviewing any part of the record of conviction at this preliminary juncture, a
trial court should not engage in ‘factfinding involving the weighing of evidence or the
exercise of discretion.’ ” (Id. at p. 972.) “[T]he ‘prima facie bar was intentionally and
correctly set very low.’ ” (Ibid.)
5
Where a defendant’s “case was tried before both Banks and Clark . . . special
circumstance findings do not preclude him from making out a prima facie case for
resentencing under section 1172.6.” (Strong, supra, 13 Cal.5th at p. 721.) A court “err[s] in
concluding otherwise.” (Ibid.)
If a defendant has made a prima facie showing of entitlement to relief, “ ‘the court
shall issue an order to show cause.’ ” (Strong, supra, 13 Cal.5th at p. 708.) “[T]he court
must [then] hold an evidentiary hearing at which the prosecution bears the burden of
proving, ‘beyond a reasonable doubt, that the petitioner is guilty of murder or attempted
murder’ under state law as amended by Senate Bill 1437. [Citation.] ‘A finding that there
is substantial evidence to support a conviction for murder, attempted murder, or
manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is
ineligible for resentencing.’ [Citation.] ‘If the prosecution fails to sustain its burden of
proof, the prior conviction, and any allegations and enhancements attached to the
conviction, shall be vacated and the petitioner shall be resentenced on the remaining
charges.’ ” (Id. at p. 709.)
“[E]ffective January 1, 2022, the Legislature limited use of prior appellate opinions,
allowing trial judges to [only] ‘consider the procedural history of the case recited.’
[Citation.] . . . [I]ts specificity indicates the Legislature has decided trial judges should not
rely on the factual summaries contained in prior appellate decisions when a section 1170.95
petition reaches the stage of a full-fledged evidentiary hearing.” (People v. Clements (2022)
75 Cal.App.5th 276, 292.)
6
Here, the jury rendered the special murder circumstance findings before both Banks
and Clark were decided. With respect to those findings, “no judge or jury has ever found
the currently required degree of culpability . . . .” (Strong, supra, 13 Cal.5th at p. 718,
italics added.) Thus, as we originally determined, the special murder circumstance findings
did not, alone, render defendant ineligible for relief. Therefore, the court below erred in
denying defendant’s petition on that basis.
However, we also determined, in reliance on this court’s prior opinion, that any error
was harmless since the record of conviction disclosed sufficient evidence to support a
finding that defendant was a major participant who acted with reckless indifference to
human life under Banks and Clark. “Neither the jury’s pre-Banks and Clark findings nor a
court’s later sufficiency of the evidence review amounts to the determination section 1172.6
requires, and neither set of findings supplies a basis to reject an otherwise adequate prima
facie showing and deny issuance of an order to show cause.” (Strong, supra, 13 Cal.5th at
p. 720.)
Since the felony-murder special-circumstance findings here were made before Banks
and Clark, those findings alone do not render defendant ineligible for resentencing.
Moreover, this court’s previous review for sufficiency of the evidence was also inadequate
to support denial of resentencing at the prima facie stage. Therefore, as the People concede,
we must reverse the court’s order summarily denying defendant’s petition and remand the
matter for a new prima facie hearing.
7
DISPOSITION
The order denying defendant's petition is reversed. The matter is remanded with
directions to hold a new prima facie hearing. We express no opinion on whether defendant
is entitled to relief following the hearing.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
RAMIREZ
P. J.
RAPHAEL
J.
8 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482607/ | NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 22-1086
___________
SANDRA LORENA ARIETA-LOPEZ;
DIEGO RODRIGO ARIETA-RODRIGUEZ,
Petitioners
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A099-663-559 and A208-885-625)
Immigration Judge: John B. Carle
____________________________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 7, 2022
Before: HARDIMAN, SHWARTZ, and NYGAARD, Circuit Judges
(Opinion filed: November 9, 2022)
___________
OPINION*
__________
NYGAARD, Circuit Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Sandra Arieta-Lopez and her minor son petition for review of the Board of
Immigration Appeals’ (BIA) final order of removal, arguing that the BIA erred by finding
that her proposed social group was not cognizable. Because Arieta-Lopez failed to
exhaust one claim and her other arguments lack merit, we will dismiss in part and deny in
part the petition for review.
I.
Arieta-Lopez, a native and citizen of El Salvador, entered the United States in
2006 and was subsequently removed pursuant to a removal order in January 2010. She
and her minor son, also a native and citizen of El Salvador, then entered the United States
again in January 2016. The Department of Homeland Security (DHS) reinstated Arieta-
Lopez’s 2010 removal order. After she claimed a fear of returning to El Salvador, an
asylum officer conducted a reasonable fear interview and determined that Arieta-Lopez
did not have a reasonable fear of persecution or torture. She requested review of that
determination before an Immigration Judge (IJ), who vacated the decision and placed
Arieta-Lopez in “withholding-only” proceedings. DHS also placed the minor son into
removal proceedings by filing a Notice to Appear, charging him with inadmissibility
under 8 U.S.C. § 1182(a)(6)(A)(i) as an alien present in the United States without being
admitted or paroled.
Although Arieta-Lopez was not eligible to seek asylum, see Cazun v. Att’y Gen.,
856 F.3d 249, 251 (3d Cir. 2017) (noncitizens “subject to reinstated removal orders are
ineligible to apply for asylum”), she sought withholding of removal and protection under
the Convention Against Torture (CAT). The minor son filed an application for asylum,
2
withholding of removal, and relief under CAT. The applications were denied, finding,
among other things, that Arieta-Lopez did not identify a cognizable particular social
group, and she and her son were ordered removed to El Salvador. They appealed to the
BIA.
The BIA affirmed the IJ’s decision. The BIA agreed that Arieta-Lopez’s proposed
particular social group lacked immutability, particularity, and social distinction, was not
persuaded that being a bank teller is fundamental to her identity in El Salvador, and
concluded that her proposed group is impermissibly circularly defined by the harm
experienced or feared. The BIA also concluded that even if the group were cognizable,
there was no clear error in the IJ’s finding that Arieta-Lopez did not establish a nexus
between the harm she feared and a protected ground. As she did not meet her burden for
withholding of removal, her appeal was dismissed.1 The BIA also dismissed the minor
son’s appeal, finding that he presented “no meaningful arguments” contesting the IJ’s
denial of his claims and as such “waived” those issues.2 Arieta-Lopez petitions for
review.
II.3
1
The BIA also concluded that Arieta-Lopez and her son waived any challenge to
the IJ’s denial of their claims for CAT protection because they presented “no meaningful
arguments” challenging the IJ’s denial of the claims. AR 3 n.2, 303. Their failure to raise
the issue before the BIA constituted a failure to exhaust the issue, so we lack jurisdiction
over the CAT claim. 8 U.S.C. § 1252(d)(1); Lin. v. Att’y Gen., 543 F.3d 114, 126 (3d Cir.
2008).
2
The minor son does not challenge the BIA’s conclusion that he waived his
challenge to the denial of his claims for asylum and withholding of removal.
3
We have jurisdiction to review the BIA’s decision under 8 U.S.C. § 1252(a)(1).
We may consider both the BIA and the IJ’s opinions “to the extent the BIA deferred to or
3
The BIA correctly concluded that Arieta-Lopez has not shown that she is a
member of a cognizable particular social group. The only substantive challenge before us
is to the BIA’s denial of Arieta-Lopez’s claim for withholding of removal. Arieta-Lopez
argues that the BIA overlooked the law and evidence by holding that her proposed
particular social group lacked immutability, particularity, and social distinction.
“[T]he Attorney General may not remove an alien to a country if the Attorney
General decides that the alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Arieta-Lopez argues that her particular
social group, “El Salvadoran professional women subjected to extortion who have access
to large sums of money and/or have perception of one who has access to large sums of
money,” entitles her to withholding of removal. To sustain a claim for withholding of
removal based on membership in a particular social group, Arieta-Lopez must show that
her proposed group is “(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3) socially distinct within the society in
question.” Chavez-Chilel v. Att’y Gen., 20 F.4th 138, 146 (3d Cir. 2021) (internal
quotation marks and citation omitted). She must “establish by a ‘clear probability’ that
[her] life or freedom would be threatened in the proposed country of deportation.”
adopted the [IJ’s] reasoning.” Mendoza-Ordonez v. Att’y Gen., 869 F.3d 164, 169 (3d Cir.
2017) (internal quotation marks and citation omitted). We review the BIA’s legal
conclusions de novo. Id. We “decide the petition only on the administrative record” and
“the administrative findings of fact are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252 (b)(4)(A)-(B).
4
Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003) (internal quotation marks and
citation omitted). Finally, she must prove that persecution would be “because of” her
group membership—the nexus requirement. See Gonzalez-Posadas v. Att’y Gen., 781
F.3d 677, 684–85 & n.6 (3d Cir. 2015).
Though her Arguments heading asserts that the BIA erred by finding a lack of
immutability, particularity, and social distinction, Arieta-Lopez’s brief focuses most
clearly on immutability. Of course, lack of particularity and social distinction, which
Arieta-Lopez does not meaningfully challenge, are dispositive of her claim. Regardless,
the argument that her proposed social group is immutable is not supported by the record
because she has not shown that her occupation is a fundamental aspect of her identity.
Compare Mwembie v. Gonzales, 443 F.3d 405, 415 (5th Cir. 2006) (“Because [petitioner]
can change her employment, which is not fundamental to her identity or conscience, she
does not belong to a ‘social group’ of government employees.”), with Plancarte Sauceda
v. Garland, 23 F.4th 824, 834 (9th Cir. 2022) (“[Petitioner] cannot avoid compulsion by
the cartel simply by changing jobs, because even if she ceased employment as a nurse,
she would still be a nurse. . . . The cartel targeted [petitioner] precisely because of her
specialized nursing skills.”). Thus, we are unable to conclude that the record compels
reversal of the BIA’s opinion. As a result, withholding of removal is not warranted.
We need not reach Arieta-Lopez’s additional arguments because her failure to
establish membership in a cognizable group is dispositive of her claim.
III.
5
For the foregoing reasons, we will dismiss in part and deny in part the petition for
review.
6 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482610/ | Filed 11/9/22 P. v. Woods CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080417
Plaintiff and Respondent,
v. (Super. Ct. No. CR83908)
EARNEST C. WOODS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Joan P. Weber, Judge. Affirmed.
Christine M. Aros, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Earnest C. Woods appeals from an order denying his petition to vacate
his murder conviction and for resentencing under former Penal Code section
1170.95 (now section 1172.6).1 His appointed appellate counsel filed an
1 Section 1170.95 was amended effective January 1, 2022 and then
renumbered as section 1172.6 without substantive change on June 30, 2022.
(See Stats. 2022, ch. 58, § 10, (Assem. Bill No. 200).) We refer to the subject
opening brief raising no arguable issues. (People v. Wende (1979) 25 Cal.3d
436 (Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) Woods also
filed a supplemental brief on his own behalf.
We have independently reviewed the record and find no arguable issue
that would result in a modification or reversal of the trial court’s order.2
Accordingly, we affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
During a dispute in a parking lot outside of a dance club, Woods aimed
and fired a gun into a man’s chest, killing him. A jury convicted Woods in
1987 of second degree murder (§ 187) and found true an allegation that he
personally used a firearm (§ 12022.5). The court sentenced Woods to a term
of 15 years to life for second degree murder plus two consecutive years for the
firearm enhancement. We affirmed the conviction on direct appeal in an
unpublished opinion. (People v. Woods (Dec. 23, 1988, D06442) [nonpub.
opn.].) We concluded the trial court erroneously instructed the jury on the
law of implied malice under CALJIC No. 8.11, but that the error was
harmless beyond a reasonable doubt “given the parties’ approaches to the
case combined with the overwhelming evidence supporting the prosecution’s
statute by its current number throughout this opinion. All further statutory
references are to the Penal Code.
2 We recognize some courts have ruled that a defendant has no right to
Wende/Anders review in an appeal from the denial of a section 1172.6 petition
for resentencing. (See, e.g., People v. Figueras (2021) 61 Cal.App.5th 108,
110–113.) Other courts have concluded that Wende/Anders review is not
required, but that appellate courts have discretion to conduct such a review
in the interests of justice. (People v. Gallo (2020) 57 Cal.App.5th 594, 598–
599.) Because this issue is currently pending before the Supreme Court
(People v. Delgadillo (Nov. 18, 2020, No. B30441), review granted Feb. 17,
2021, S266305), we have opted to conduct a Wende/Anders review.
2
theory Woods intended to kill [the victim] or at minimum appreciated the
risk involved in his conduct . . . .”
In 2019, the trial court denied Woods’s petition for resentencing under
former section 1170.95 (now § 1172.6), finding Woods was not convicted of
murder based on felony murder or the natural and probable consequences
doctrine, but was convicted as the actual killer. We affirmed the order in an
unpublished opinion. (People v. Woods (Oct. 7, 2019, D075613) [nonpub.
opn.].)
Woods filed a second petition for resentencing in October 2021,
contending he was convicted of second degree murder under either the felony
murder rule or the natural and probable consequences doctrine and that he
was eligible for resentencing based on amendments to sections 188 and 189
that became effective in 2019. The People opposed the petition, contending
Woods failed to meet his prima facie burden. Woods’s appointed counsel
submitted a reply arguing he had made a prima facia showing that he may be
entitled to relief and the matter should proceed to a hearing where the People
would be required to show he is not entitled to relief.
The court considered the briefing and oral arguments. Woods’s counsel
argued the matter should proceed to an evidentiary hearing because the
record of conviction indicated the jury was instructed with language in
CALJIC No. 8.11 defining implied malice in terms of an intentional act “the
natural consequences of which are dangerous to life,”3 which Woods’s counsel
3 As given at trial, CALJIC No. 8.11 defined implied malice as follows:
“Malice is implied when the killing results from an intentional act involving a
high degree of probability that it will result in death, which act is done for a
base, antisocial purpose and with a wanton regard [sic] for human life, or
when the killing results from an intentional act, the natural consequences of
which are dangerous to life, which act was deliberately performed by a person
3
argued was similar to the natural and probable consequences doctrine. The
People argued that the court previously denied a petition for resentencing
after finding that he actually and intentionally killed the victim, which our
court affirmed on appeal. The People argued this second successive petition
should be denied based on collateral estoppel because he did not raise new
grounds for relief. Even if the petition was proper, the People argued he was
ineligible for relief based on the jury’s findings.
The court agreed the petition was successive and that Woods raised no
new issues. Nevertheless, the court found, after considering the record of
conviction and the arguments, that Woods was ineligible for relief. The court
concluded that Woods was not convicted under a theory of felony murder or
the natural and probable consequences doctrine. Instead, the jury found that
Woods shot the gun and he was the direct perpetrator of the homicide. There
was no evidence anyone else was present.
Woods filed a timely notice of appeal. His appointed appellate counsel
filed an opening brief raising no issues and asking us to review the record for
error under Wende and Anders. The opening brief identified two potential
issues to assist this court in conducting its independent review of the record:
(1) whether the trial court erred in denying appellant’s petition for
resentencing; and (2) whether the use of the phrase “natural and probable
consequences” in the definition of implied malice given at trial (CALJIC
No. 8.11) made Woods eligible for relief under section 1172.6.
Woods filed his own supplemental brief again arguing that he is eligible
for relief because the improper instruction of the jury with CALJIC No. 8.11
regarding implied malice permitted them to find him guilty under the
who knows that his conduct endangers the life of another and who acts with
conscious disregard for life.”
4
natural and probable consequences doctrine. He also argued he did not have
effective assistance of counsel and that his conviction violated his rights
under the United States Constitution and the Racial Justice Act (Stats. 2020,
ch. 317, § 3.5).
DISCUSSION
We have reviewed the entire record as required by Wende and Anders.
We have also considered the issues identified by counsel in the opening brief
and by Woods in his supplemental brief. We have not discovered any
arguable issue that would result in a reversal or modification of the trial
court’s ruling. Competent counsel has represented Woods in this appeal.
Accordingly, we affirm the trial court’s order.
DISPOSITION
The order denying Woods’s petition for resentencing under section
1172.6 is affirmed.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN, J.
5 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482615/ | Electronically Filed
Supreme Court
SCPW-XX-XXXXXXX
09-NOV-2022
08:01 AM
Dkt. 4 ODDP
SCPW-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
GEORGE NAOI RICHARDSON, NEIL MAUNAKEA RICHARDSON, and NINIA
RICHARDSON-ALDRICH, Petitioners,
vs.
THE HONORABLE KARIN HOLMA,
Judge of the Circuit Court of the First Circuit,
State of Hawaiʻi, Respondent Judge.
ORIGINAL PROCEEDING
(CASE NO. 1CTR-XX-XXXXXXX)
ORDER DENYING PETITION FOR WRIT OF MANDAMUS
AND FOR WRIT TO STAY THE SALE OF PROPERTY
(By: Recktenwald, C.J., Nakayama, McKenna, Wilson, and Eddins, JJ.)
Upon consideration of petitioners George Naoi Richardson,
Neil Maunakea Richardson, and Ninia Richardson-Aldrich’s
petition for writ of mandamus, and for writ to stay the sale of
property, filed on November 1, 2022, and the record, the
extraordinary writ requested by petitioners is not warranted.
Petitioners failed to demonstrate a clear and indisputable
right to the relief requested and a lack of other means to
redress adequately the alleged wrong or to obtain the requested
action. Kema v. Gaddis, 91 Hawaiʻi 200, 204, 982 P.2d 334, 338
(1999).
The decision of whether to enter the written order under
Rule 20(a) of the Hawaiʻi Probate Rules (HPR) is within the
discretion of the court. In re Est. of Kam, 110 Hawaiʻi 8, 24,
129 P.3d 511, 527 (2006). And, any purported error in the
court’s exercise of this discretion should be raised on appeal,
not mandamus. Moreover, the failure of the court to enter a
written order under HPR Rule 20(a) does not divest the court of
its statutory jurisdiction.
IT IS ORDERED that the petition for writ of mandamus and
for writ to stay the sale of property is denied.
DATED: Honolulu, Hawai‘i, November 9, 2022.
/s/ Mark E. Recktenwald
/s/ Paula A. Nakayama
/s/ Sabrina S. McKenna
/s/ Michael D. Wilson
/s/ Todd W. Eddins
2 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482626/ | 11/09/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0586
No. DA 21-0586
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JACOB CHRISTIAN PALMER,
Defendant and Appellant.
ORDER
Upon consideration of Appellant’s unopposed motion for extension
of time, and good cause appearing,
IT IS HEREBY ORDERED that Appellant is granted an extension
of time to and including December 26, 2022, within which to prepare,
file, and serve Appellant’s opening brief on appeal.
Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 9 2022 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482627/ | 11/09/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0255
No. DA 21-0255
STATE OF MONTANA,
Plaintiff and Appellee,
v.
CARL SANGREY,
Defendant and Appellant.
ORDER
Upon consideration of Appellee’s motion for a 30-day extension of time, and
good cause appearing therefor,
IT IS HEREBY ORDERED that Appellee is granted an extension of time to
and including December 20, 2022, within which to prepare, serve, and file its
response brief.
BG Electronically signed by:
Mike McGrath
Chief Justice, Montana Supreme Court
November 9 2022 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482617/ | USCA11 Case: 22-11223 Date Filed: 11/09/2022 Page: 1 of 4
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11223
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOMINIQUE WIMBLEY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:17-cr-00109-TJC-JBT-1
____________________
USCA11 Case: 22-11223 Date Filed: 11/09/2022 Page: 2 of 4
2 Opinion of the Court 22-11223
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Dominique Wimbley appeals his sentence. Wimbley re-
ceived 24 months’ imprisonment and 12 months’ supervised re-
lease after revocation of his initial supervised release.
Wimbley argues the district court failed to consider 18
U.S.C. § 3583(h)’s limitation on the imposition of supervised re-
lease. If the court had considered the limitation, according to
Wimbley, it would not have imposed the maximum statutory
term.
I.
We typically review de novo the legality of a sentence im-
posed upon revocation of supervised release. United States v. Cun-
ningham, 800 F.3d 1290, 1291 (11th Cir. 2015). However, when a
sentencing challenge is raised for the first time on appeal, we re-
view for plain error. United States v. Henderson, 409 F.3d 1293,
1307 (11th Cir. 2005). Under plain error, we may correct an error
if the defendant demonstrates that (1) there was an error; (2) the
error was plain; (3) the error affects the defendant’s substantial
rights; and (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v. Moore,
22 F.4th 1258, 1264–65 (11th Cir. 2022).
An error is plain if it violates the plain language of a statute
or rule, or where there is binding precedent directly resolving the
USCA11 Case: 22-11223 Date Filed: 11/09/2022 Page: 3 of 4
22-11223 Opinion of the Court 3
issue. United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.
2003). A plain error affects substantial rights if it was prejudicial,
meaning that the error “actually did make a difference” in the de-
fendant’s sentence. United States v. Rodriguez, 398 F.3d 1291, 1300
(11th Cir. 2005). A defendant has not met his burden of showing
that his substantial rights have been affected by an error where the
effect “is uncertain or indeterminate” and we “would have to spec-
ulate.” Id. at 1301.
Generally, a district court may revoke a term of supervised
release and require the defendant to serve in prison all or part of
the term of supervised release. 18 U.S.C. § 3583(e)(3). If the court
finds the offender violated supervised release by possessing a fire-
arm, however, the court must revoke the term of supervised re-
lease and impose a term of imprisonment not to exceed the maxi-
mum authorized under § 3583(e)(3). Id. § 3583(g)(2). Because the
offense that resulted in the term of supervised release was a class C
felony, the maximum imprisonment Wimbley faced upon revoca-
tion of supervised release was two years. Id. § 3583(e)(3); see also
18 U.S.C. § 3559(a)(3). The statutory maximum supervised release
term for a Class C felony is three years. 18 U.S.C. § 3583(b). The
court was authorized to impose a supervised release term to follow
the imprisonment, with the following limitations:
When a term of supervised release is revoked and the
defendant is required to serve a term of imprison-
ment, the court may include a requirement that the
defendant be placed on a term of supervised release
USCA11 Case: 22-11223 Date Filed: 11/09/2022 Page: 4 of 4
4 Opinion of the Court 22-11223
after imprisonment. The length of such a term of su-
pervised release shall not exceed the term of super-
vised release authorized by statute for the offense that
resulted in the original term of supervised release, less
any term of imprisonment that was imposed upon
revocation of supervised release.
Id. § 3583(h) (emphasis added). Under § 3583(h), the court was au-
thorized to impose a term of supervised release not to exceed three
years, less the two-year term of imprisonment it imposed upon su-
pervised release. Thus, the court was authorized to impose one
year of supervised release, which is exactly the term it imposed.
Wimbley has not shown plain error as there is no indication
in the record that the district court was unaware of § 3583(h) or
that the court was inclined to impose a more lenient supervised
release term. Moreover, Wimbley has not pointed to any instruc-
tive, binding precedent holding that a district court’s alleged mis-
understanding of the statutory maximum supervised release term
under § 3583(h) is reversible error where the sentence imposed was
within the statutory limits.
AFFIRMED. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482622/ | IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ESTATE OF MARTHA BAROTZ, by )
its Executor, Peter Barotz, )
)
Plaintiff/Counterclaim-Defendant, )
)
v. ) C.A. No. N20C-05-144 EMD CCLD
)
VIDA LONGEVITY FUND, L.P., )
)
Defendant/Counterclaim-Plaintiff. )
Submitted: October 17, 20221
Decided: November 9, 2022
Upon Plaintiff Estate of Martha Barotz’ Motion for Summary Judgment,
GRANTED
Upon Defendant Vida Longevity Fund, L.P.’s Motion for Summary Judgment,
DENIED
Donald L. Gouge, Jr., Esq., Donald L. Gouge, Jr., LLC, Wilmington, Delaware, Joseph M.
Kelleher, Esq., Cozen O’Connor, Philadelphia, Pennsylvania, Counsel for Plaintiff Estate of
Martha Barotz
David P. Primack, Esq., McElroy, Deutsch, Mulvaney & Carpenter, LLP, Wilmington,
Delaware, Eric A. Biderman, Esq., James M. Westerlind, Esq., Julius A. Rousseau, Esq., Arent
Fox LLP, New York, New York, Counsel for Defendant Vida Longevity Fund, L.P.
Davis, J.
I. INTRODUCTION
This civil action is assigned to the Complex Commercial Litigation Division of this
Court. The action concerns an $8 million life insurance policy (the “Policy”) issued by Pacific
Life Insurance Company insuring the life of Martha Barotz. When Martha Barotz passed away
in 2018, Defendant Vida Longevity Fund, L.P. (“VLF”) received the Policy’s death benefit. The
1
D.I. No. 214.
Estate of Martha Barotz (the “Estate”) claims it is entitled to recover the death benefit from VLF
under 18 Del. C. § 2704 (“Section 2704”) because the Policy is void for lack of insurable
interest. VLF claims the Policy is supported by a valid insurable interest and, alternatively, that
VLF is entitled to the payout based on various defenses and counterclaims.
Both parties moved for summary judgment on December 24, 2021. For the reasons
explained below, the Court GRANTS the Estate’s motion and DENIES VLF’s motion.
II. BACKGROUND
A. PARTIES
The Estate was established in New York after the death of Martha Barotz, a resident of
New York.2 The Executor of the Estate is Mrs. Barotz’s husband, Peter Barotz.3 Both the Estate
and Mr. Barotz are New York citizens.4 VLF is a Delaware limited partnership with its principal
place of business in Austin, Texas.5
B. THE POLICY
In 2006, the Barotz family became clients of Spalding Financial Group (“SFG”) through
Craig Stack, one of its insurance agents.6 The Court notes that the record contains no evidence
as to any discussions that may have occurred among the Barotz family and Mr. Stack regarding
the family’s insurance needs.
Lindsay Spalding—another insurance agent at SFG—offered testimony concerning the
business practices that SFG employed at the time. Although Ms. Spalding never met any
member of the Barotz family,7 she eventually signed the application for the Policy as the
2
Second Am. Compl. (“SAC”) ¶ 1 (D.I. 71).
3
Id.
4
Id.
5
Id. ¶ 2.
6
Estate’s Mot. for S.J., Ex. 10 at 13:22–14:17, 19:5–19:8.
7
Id., Ex. 10 at 11:2–11:13.
2
“Soliciting Agent.”8 Ms. Spalding also testified as a witness in Sun Life Assurance Co. Canada
v. U.S. Bank National Association (“Sol”), which concerned a life insurance policy that Ms.
Spalding brokered while working for SFG in late 2005.9 The policy in Sol was financed through
nonrecourse premium financing issued under Coventry Capital’s premium finance program (the
“PFP Program”).10
In the current case, Ms. Spalding testified that SFG maintained a “streamlined” process
under which SFG would contact various groups to secure financing for their clients’ insurance
needs.11 One such group was Coventry Capital.12 Although the record is silent as to any
discussions SFG may have had with the Barotz family, Ms. Spalding confirmed that SFG’s
internal records show that Coventry Capital provided financing for Mrs. Barotz’s Policy through
its PFP Program.13
The record indicates that, in March 2006, Coventry Capital provided Mrs. Barotz with a
“Loan Proposal” containing the “indicative terms and conditions upon which we may be able to
arrange [nonrecourse] financing” for her Policy.14 Mrs. Barotz was 71 year old at the time.15
According to Coventry Capital’s summary, Pacific Life Insurance Company would issue a life
insurance policy for Mrs. Barotz with a premium of $257,678 and a death benefit of $8 million.16
LaSalle Bank N.A. (“LaSalle”) would then issue a nonrecourse loan of $257,678 to pay the
premium.17 The loan’s term was to be 26 months with an annual interest of 9.50%.18 The
8
Id., Ex. 11 at 9.
9
369 F. Supp. 3d 601, 604–605 (D. Del. 2019).
10
Id. at 605.
11
Id., Ex. 10 at 25:22–26:23.
12
Id., Ex. 10 at 25:6–26:23.
13
Id., Ex. 10 at 25:6–25:21.
14
Estate’s Mot. for S.J., Ex. 14 at 1.
15
Id., Ex. 14 at 2.
16
Id., Ex. 14 at 3.
17
Id., Ex. 14 at 4.
18
Id., Ex. 14 at 4.
3
collateral for the loan would be a security interest in “(i) each of the Policies or in the beneficial
interest of a statutory trust holding the Policies and (ii) insurance coverage maintained by the
Lender.”19 The “Borrower” was not Mrs. Barotz herself, but rather the “Martha Barotz 2006
Family Trust, Premium Finance Sub-Trust.”20
Coventry Capital instructed Mrs. Barotz to sign and submit several “Trust Agreements”
to effectuate the transaction.21 One Trust Agreement directed the creation of the “Martha Barotz
2006 Family Trust” (the “Trust”), a Delaware statutory trust, so that the Trust could apply for
and own the Policy.22 The Trust Agreement selected Wilmington Trust Company as trustee, and
designated that (i) Delaware law would govern the Trust and (ii) Delaware would act as the
Trust’s situs.23 Furthermore, the Trust Agreement provided that the Trust would be nominally
funded with “the sum of $1.”24 Ms. Spalding testified that Coventry Capital was the party that
would draft such Trust Agreements and their terms.25
Additionally, Coventry Capital provided a “Supplement to Trust Agreement” directing
the creation of the Martha Barotz 2006 Family Trust, Premium Finance Sub-Trust (the “Sub-
Trust”).26 The Supplement said that the Policy would pass directly to the Sub-Trust, which
would take out a loan to pay the premiums and pledge the “Policy, and all proceeds thereof” as
the sole collateral for the nonrecourse loan.27 Wilmington Trust Company, as trustee, took all
direction from Coventry Capital/LaSalle.28 In addition, Wilmington Trust Company held the
19
Id., Ex. 14 at 4.
20
Id., Ex. 14 at 2.
21
See id., Ex. 14 at 2, 6.
22
Id., Ex. 15 ¶ 3.
23
Id., Ex. 15 ¶¶ 10, 15
24
Id., Ex. 15 ¶ 2.
25
See id., Ex. 10 at 119:24–121:18.
26
Id., Ex. 15 at 8–18.
27
Id., Ex. 15 at 8.
28
Id., Ex. 15 at Art. II, § 3; id., Ex. 15 at Art. III, § 2.
4
Policy solely for the benefit of Coventry/LaSalle.29 During the term of the Loan, the Trust was
prohibited from holding any property other than the “Initial Trust Estate” of $1, the Sub-Trust
was prohibited from holding any property other than the “Sub-Trust Estate” (i.e., the Policy), and
Mrs. Barotz was prohibited from indicating to anyone that the Policy was her own asset or
attempting to instruct Pacific Life Insurance Company to change the owner or beneficiary of the
Trust.30
Coventry Capital also utilized a “Note and Security Agreement” between the Sub-Trust
and LaSalle. The Note established a nonrecourse loan for 26 months to finance the premiums
with total payments amounting to $327,557.31.31
Coventry Capital required the execution of two power of attorney forms. The power of
attorney appointed Coventry Capital as Mrs. Barotz’s attorney-in-fact “with full powers of
substitution to act in [her] name,” for purposes including “originating and/or servicing any life
insurance policies insuring [her] life” with the “power to complete and execute any applications
or other documents in connection with the maintenance, or liquidation of the Policies.”32 The
second power of attorney appointed Coventry Capital as attorney-in-fact for Mrs. Barotz’s
husband in his capacity as the named co-trustee of the Trust and Sub-Trust respectively, with
“full powers of substitution to act in [his] name, place and stead for the purpose of it originating,
maintaining, servicing, and/or liquidating . . . any life insurance policies . . . which are owned by
the Trust.”33
29
Id.
30
Id., Ex. 15 at Art. II, §§ 6, 7(b).
31
Id., Ex. 16 at 2, 3, 9.
32
Id., Ex. 17 at 1.
33
Id., Ex. 18 at 1.
5
Finally, Coventry Capital provided a Disclosure stating, in relevant part, that the Trust
Agreement creating the Trust (and the Supplement creating the Sub-Trust)
are not intended to satisfy Settlor [Mrs. Barotz’s] estate planning needs and have
not been designed as an estate planning tool. Settlor hereby confirms that the
Program Administrator has recommended to Settlor that Settlor consult with
Settlor’s own legal, tax, accounting and financial advisors regarding individual
estate planning needs.34
On March 30, 2006, Wilmington Trust Company applied for the Policy as proposed
owner and beneficiary in its capacity as trustee of the Trust.35 As noted previously, Ms. Spalding
signed the application as the Soliciting Producer.36 The Policy was issued on April 20, 200637
and delivered to Wilmington Trust Company as owner in Delaware.38 On April 26, 2006,
Coventry Capital paid the premium of $257,678 to put the Policy into effect.39
The material facts relating to Mrs. Barotz’s Policy are substantially identical to the policy
at issue in Sun Life Assurance Company Canada v. U.S. Bank National Association (“Sol”). In
Sol, Coventry Capital provided the insured, Harriet Sol, with the same set of documents as
Coventry Capital provided to Mrs. Barotz.40 By agreeing with Coventry Capital’s proposals, the
insured in Sol created a series of trusts that would obtain a life insurance policy through a
nonrecourse premium loan from LaSalle.41 The policy purchased by the loan served as the sole
collateral, capping the maximum amount of the borrower’s loss at the value of the policy.42 If
the sub-trust failed to pay back or refinance the loan in 26 months, the policy would be seized by
34
Id., Ex. 19 at 1–2 (emphasis added).
35
Id., Ex. 11 at 1, 6, 9.
36
Id., Ex. 11 at 9.
37
Id., Ex. 20.
38
Id., Ex. 21.
39
Id., Ex. 22.
40
See Sun Life Assurance Co. Canada v. U.S. Bank Nat. Assn., Sol, 369 F. Supp. 3d 601, 605–606 (D. Del. 2019).
41
Id.
42
Id.
6
LaSalle and/or Coventry Capital.43 And once the financing was secured, an SFG employee
submitted a formal application to Sun Life for the policy.44 In short, Mrs. Barotz’s Policy was
the product of the same premium financing program involving the same entities as the policy in
Sol.
C. THE POLICY CHANGES HANDS AND MRS. BAROTZ PASSES AWAY
Coventry Capital ordered a life expectancy report for Mrs. Barotz in April 2008.45 In
July 2018, the Trust was sold to “2008 Barotz Insurance Trust” in July 2008,46 the registered
holder of which was Midas Life Settlements LLC (“Midas”).47 Midas paid $390,400 for the
Policy, which was $62,842.69 greater than the loan balance.48 Midas paid off the Coventry
Capital loan and remitted the excess $62,842.69 to Mrs. Barotz.49
In its opening brief, the Estate claims the Policy was then sold to Financial Credit
Investment II Limited (“FCI”), an Apollo entity.50 Although the record contains no documents
showing a transaction between Midas and FCI, FCI subsequently sold a portfolio containing the
Policy to VLF in December 2018.51 VLF paid a total of $155,714,020.81 for the portfolio that
contained the Policy.
Mrs. Barotz passed away less than a month after VLF obtained the Policy.52 VLF
received the Policy’s death benefit of $8,005,698.63.53
D. LITIGATION
43
Id.
44
Id.
45
Estate’s Mot. for S.J., Ex. 23.
46
Id., Ex. 24 at 1.
47
Id., Ex. 25 at B-1.
48
Id., Ex. 24 at 1
49
Id., Ex. 24 at 17–20.
50
Id. at 10–11.
51
Id., Ex. 26.
52
Id., Ex. 29.
53
Id., Ex. 30 at 2.
7
The Estate commenced this action in May 2020. The Estate’s Second Amended
Complaint brings two claims against VLF: (1) a claim for “Recovery of Insurance Proceeds Due
to Lack of Insurable Interest,” brought under Section 2704, and (2) a claim in the alternative for
unjust enrichment.54 VLF’s answer asserted fourteen affirmative defenses and four
counterclaims: (1) declaratory judgment, (2) breach of contract, (3) promissory estoppel, and (4)
indemnification/specific performance.55
Both parties filed motions for summary judgment on December 24, 2021.56 The Court
heard argument on April 8, 2022.57 The Supreme Court of Delaware issued a decision in the
case of Wells Fargo Bank, N.A. v. Estate of Phyllis M. Malkin on May 26, 2022.58 This Court
permitted the parties to file supplemental briefing addressing the effect of the Malkin decision on
the cross-motions.59 The parties filed their supplemental briefs on July 11, 2022.60
Subsequently, without prompting from the Court, the parties have submitted notices of
supplemental authorities and how these authorities might impact the decision in this case.61 The
last filing was submitted on October 17, 2022.62
III. STANDARD OF REVIEW
The standard of review on a motion for summary judgment is well-settled. The Court’s
principal function when considering a motion for summary judgment is to examine the record to
54
SAC ¶¶ 35–46.
55
Answer to SAC at 11–20, 35–41 (D.I. 73).
56
VLF’s Mot. for S.J. (D.I. 124); Estate’s Mot. for S.J. (D.I. 138).
57
D.I. No. 204.
58
Wells Fargo Bank, N.A. v. Est. of Malkin, 2022 WL 1671966 (Del. May 26, 2022).
59
See Estate’s Supp. Br. (D.I. 209); VLF’s Supp. Br. (D.I. 210).
60
D.I. Nos. 209 and 210.
61
D.I. Nos. 213 and 214. The new authority is Estate of Beverly M. Berland v. Lavastone Capital LLC, 2022 WL
15023450 (D. Del. Sept. 28, 2022).
62
D.I. No. 214.
8
determine whether genuine issues of material fact exist, “but not to decide such issues.”63
Summary judgment will be granted if, after viewing the record in a light most favorable to a
nonmoving party, no genuine issues of material fact exist and the moving party is entitled to
judgment as a matter of law.64 If, however, the record reveals that material facts are in dispute,
or if the factual record has not been developed thoroughly enough to allow the Court to apply the
law to the factual record, then summary judgment will not be granted.65 The moving party bears
the initial burden of demonstrating that the undisputed facts support his claims or defenses.66 If
the motion is properly supported, then the burden shifts to the non-moving party to demonstrate
that there are material issues of fact for the resolution by the ultimate fact-finder.67
“These well-established standards and rules equally apply [to the extent] the parties have
filed cross-motions for summary judgment.”68 Where cross-motions for summary judgment are
filed and neither party argues the existence of a genuine issue of material fact, “the Court shall
deem the motions to be the equivalent of a stipulation for decision on the merits based on the
record submitted with the motions.”69 But where cross-motions for summary judgment are filed
and an issue of material fact exists, summary judgment is not appropriate.70 To determine
63
Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. 1973).
64
Id.
65
See Ebersole v. Lownegrub, 180 A.2d 467, 470 (Del. 1962); see also Cook v. City of Harrington, 1990 WL 35244,
at *3 (Del. Super. Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) (“Summary judgment will not be granted under
any circumstances when the record indicates . . . that it is desirable to inquire more thoroughly into the facts in order
to clarify the application of law to the circumstances.”).
66
See Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole, 180 A.2d at 470).
67
See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).
68
IDT Corp., 2019 WL 413692, at *5 (citations omitted); see Capano v. Lockwood, 2013 WL 2724634, at *2 (Del.
Super. May 31, 2013) (citing Total Care Physicians, P.A. v. O’Hara, 798 A.2d 1043, 1050 (Del. Super. 2001)).
69
Del. Super. Civ. R. 56(h).
70
Motors Liquidation Co. DIP Lenders Tr. v. Allianz Ins. Co., 2017 WL 2495417, at *5 (Del. Super. June 19, 2017),
aff’d sub nom., Motors Liquidation Co. DIP Lenders Tr. v. Allstate Ins. Co., 191 A.3d 1109 (Del. 2018); Comet Sys.,
Inc. S’holders’ Agent v. MIVA, Inc., 980 A.2d 1024, 1029 (Del. Ch. 2008); see also Anolick v. Holy Trinity Greek
Orthodox Church, Inc., 787 A.2d 732, 738 (Del. Ch. 2001) (“[T]he presence of cross-motions ‘does not act per se as
a concession that there is an absence of factual issues.’”) (quoting United Vanguard Fund, Inc. v. TakeCare, Inc.,
693 A.2d 1076, 1079 (Del. 1997)).
9
whether there is a genuine issue of material fact, the Court evaluates each motion
independently.71 The Court will deny summary judgment if the Court determines that it is
prudent to make a more thorough inquiry into the facts.72
71
Motors Liquidation, 2017 WL 2495417, at *5; see Fasciana v. Elec. Data Sys. Corp., 829 A.2d 160, 167 (Del. Ch.
2003).
72
Ebersole, 180 A.2d at 470–72.
10
IV. PARTIES’ CONTENTIONS
A. THE ESTATE
The Estate contends the Policy is void under Section 2704 for two reasons: (1) the Policy
lacked insurable interest because Mrs. Barotz did not actually pay its premiums and (2) even if
Mrs. Barotz could be deemed to have paid the premiums, the Policy was not taken out in good
faith for a lawful insurance purpose but rather as a cover for a wager. The Estate also argues that
VLF’s affirmative defenses and counterclaims fail as a matter of law because they are
inconsistent with Delaware’s strong public policy against STOLIs and the statutory language of
Section 2704. Throughout its opening brief, the Estate claims this case is functionally identical
to other cases in which life insurance policies were held void for lack of insurable interest.
B. VLF
VLF’s counterarguments to the Estate’s motion double as affirmative arguments for its
own motion. VLF’s arguments fall into two general categories. First, VLF contends the Policy
was supported by valid insurable interest because the nonrecourse funding satisfied the
conditions described in PHL Variable Insurance Co. v. Price Dawe 2006 Insurance Trust73 and
Lavastone Cap. LLC v. Est. of Berland.74 Second (and alternatively), VLF claims that Mrs.
Barotz or her Estate have waived, released, or otherwise forfeited any claims against VLF.
C. SUPPLEMENTAL CONTENTIONS
Through supplemental briefing, the Estate argues that Malkin simply confirms that VLF’s
counterclaims and affirmative defenses fail as a matter of law. Conversely, VLF claims that
Malkin permits a downstream purchaser like VLF to assert common-law defenses and
73
28 A.3d 1059 (Del. 2011).
74
266 A.3d 964 (Del. 2021).
11
counterclaims in actions brought under Section §2704(b), and that its defenses and counterclaims
prevail under the facts of this dispute.
V. DISCUSSION
The Court holds that: (1) the Policy lacks an insurable interest and thus is void under
Section 2704; (2) VLF’s affirmative defenses and counterclaims fail as a matter of law; and (3)
the Estate is entitled to the proceeds of the Policy under Section 2704(b). Thus, the Estate’s
motion is GRANTED and VLF’s motion is DENIED.
A. APPLICABLE LAW
“For hundreds of years, the law has prohibited wagering on human life through the use of
life insurance that was not linked to a demonstrated economic risk.”75 Delaware codified the
requirement that a person procuring a life insurance policy must have an “insurable interest” in
the life of the insured in Section 2704. Section 2704(a) provides:
Any individual of competent legal capacity may procure or effect an insurance
contract upon his or her own life or body for the benefit of any person, but no person
shall procure or cause to be procured any insurance contract upon the life or body
of another individual unless the benefits under such contract are payable to the
individual insured or his or her personal representatives or to a person having, at
the time when such contract was made, an insurable interest in the individual
insured.
The categories of persons that have an insurable interest in an individual’s life include the
individual insured and others, such as close family members or business associates and the
“trustee of a trust created and initially funded by” the insured.76
In Price Dawe, the Supreme Court answered three certified questions regarding the
application of Section 2704 to STOLI schemes.77 First, the Supreme Court held that “a life
75
Berland, 266 A.3d at 967–68.
76
Id. at 968 (citing 18 Del. C. § 2704(c)).
77
Price Dawe, 28 A.3d at 1065-76.
12
insurance policy lacking an insurable interest is void as against public policy and thus never
comes into force.”78 Therefore, an insurer could challenge the validity of a life insurance policy
based on a lack of insurable interest after the expiration of the contractual two-year contestability
period required by 18 Del. C. § 2908. Second, the Supreme Court held that Sections 2704(a) and
(c)(5) do not prohibit an insured from procuring a policy on his or her own life and immediately
transferring the policy, or a beneficial interest in a trust that owns and is the beneficiary of the
policy, to a person without an insurable interest in the insured’s life.79 This can be done so long
as (i) the insured procured or effected the policy and (ii) the transaction is not a mere cover for a
wager.80 Third, the Supreme Court held that a trust established by an individual insured has an
insurable interest in the life of that insured when, at the time of the application for the life
insurance, the individual intends that the beneficial interest in the trust would be transferred to a
third-party investor with no insurable interest in the individual’s life following the issuance of
the policy, but only if the individual insured created and funded the trust.81
In 2021, the Supreme Court answered three more certified questions in its decision in
Berland. Relevant here is the Supreme Court’s analysis of the second question:
Does 18 Del. C. § 2704(a) and (c)(5) forbid an insured or his or her trust to procure
or effect a policy on his or her own life using a non-recourse loan and, after the
contestability period has passed, transfer the policy, or a beneficial interest in a trust
that owns the policy, to a person without an insurable interest in the insured's life,
if the insured did not ever intend to provide insurance protection beyond the
contestability period?82
The Supreme Court explained that the analysis in Price Dawe emphasizes two considerations
when evaluating whether a policy lacks an insurable interest: (1) whether the insured or the
78
Id. at 1065.
79
Id. at 1068.
80
Id.
81
Id. at 1076.
82
Berland, 266 A.3d at 971.
13
trustee of the insured’s trust obtained the policy in good faith for a lawful insurance purpose, and
not as a cover for a wagering contract; and (2) the source of the funding for the premiums.83 The
Supreme Court found that the certified question effectively asked how these considerations apply
where (1) the source of the funding is a nonrecourse loan and not from any assets of the insured
and (2) the insured’s intent was to transfer ownership after the end of the contestability period,
rather than “immediately” as in Price Dawe.84 The Court explained that “Price Dawe directs
courts to determine who procured a policy by examining ‘who pays the premiums.’”85
Regarding the use of premium financing, the Supreme Court held:
If used to facilitate procurement of a policy for a legitimate insurance purpose, such
as estate planning, then premium financing is a recognized and permissible
tool. But the use of such financing might also be evidence of an impermissible
STOLI scheme, especially where the use of a nonrecourse loan means that a third
party, and not the insured, bears the entire financial liability for obtaining the
policy. The use of a nonrecourse loan to fund the premium therefore is not
dispositive, but should be viewed in the context of the entire transaction and in
conjunction with consideration of whether the insured intended, when obtaining the
policy, “to purchase the policy for lawful insurance purposes, and not as a cover for
a [wagering] contract.” If the use of nonrecourse funding allows the insured—
individually or as settlor or grantor of a trust—to obtain the policy “without actually
paying the premiums,” then the requirements of §§ 2704(a) and (c)(5) are not met.
* * *
For these reasons, our answer to the second certified question is No, so long as the
use of nonrecourse funding did not allow the insured or his or her trust to obtain the
policy “without actually paying the premiums” and the insured or his or her trust
procured or effected the policy in good faith, for a lawful insurance purpose, and
not as a cover for a wagering contract.86
In 2022, the Supreme Court answered another set of certified questions through its
Malkin decision. The first question was whether a third-party purchaser of an insurance contract
that is void under Section 2704(a) and Price Dawe could assert either a bona fide purchaser
83
Id.
84
Id. at 971–72.
85
Id.
86
Id. at 972–73.
14
defense or a securities defense under the Delaware UCC.87 The Supreme Court held that those
defenses are not available because the defendant in action brought under Section 2704(b) do face
an “adverse claim” as the Delaware UCC defines that term.88 However, the Court explained that
Section 2704(b) “is not inconsistent with all common-law defenses or counterclaims that a
downstream purchaser of a policy might assert against an estate” and that courts must look to the
“elements” of those defenses and counterclaims—“and, where appropriate, the public policy
underlying the ban on human-life wagering”—to decide their viability in an action brought under
Section 2704(b).89 The second question in Malkin was whether a defendant in a Section 2704(b)
action can recover any premiums it paid to maintain the policy. The Court held that such a
defendant may recover the premiums it paid on the void contract if it can “establish the elements
of a viable legal theory, such as unjust enrichment.”90
B. THE POLICY IS VOID FOR LACK OF INSURABLE INTEREST
1. Mrs. Barotz did not actually pay the Policy’s premiums.
Under Berland, the Policy is void for lack of insurable interest if the use of nonrecourse
funding allowed Mrs. Barotz to obtain the Policy without paying the premiums. The Court finds
that there is no genuine factual dispute that Mrs. Barotz paid the premiums.
The insurance agent from SFG who signed the application for the Policy, Ms. Spalding,
was asked at her deposition to explain the “big picture” of the financing provided under the
Coventry PFP Program.91 Ms. Spalding explained:
A: Coventry would agree to finance the policy for, like in this case 26 months. So
they would pay the premiums for two years and that would give the client insurance,
basically free insurance for two years. And it is kind of like a free look for the two
87
Malkin, 2022 WL 1671966, at *1.
88
Id. at *10.
89
Id. at *6.
90
Id. at *14.
91
Plaintiff’s Mot. for S.J., Ex. 10 at 89:16–89:19.
15
years, and they have that time to determine if they wanted to keep it. God forbid if
they had a health change they would keep it or if not, they would sell it in the life
settlement market.
Q: Did the insureds have any obligation to repay the loan?
A: No.
Q: So what happened if they didn’t repay the loan?
A: They, Coventry, would take the policy as the collateral and that was it.92
Ms. Spalding also testified that the arrangement allowed clients, like Mrs. Barotz, to obtain their
policies “risk free.”93 The undisputed facts confirm Ms. Spalding’s characterization of the
Policy. The record demonstrates that Mrs. Barotz and her family were not parties to the
nonrecourse loan. The record also shows that neither Mrs. Barotz nor her family members paid
the premiums using their own funds. The most Mrs. Barotz ever stood to lose under the
nonrecourse loan was the Policy itself, which would never have existed but for the loan that
funded it. The Court finds that there is no factual dispute that Mrs. Barotz paid the premiums
either individually or through a trust.
The Court finds additional support for this conclusion in the District of Delaware’s Sol
decision. As discussed above, the policy in Sol was the product of the same Coventry Capital
PFP Program as Mrs. Barotz’s Policy. On summary judgment, the Sol Court found that “a
reasonable juror, taking the evidence in the light most favorable to [the defendant], could find
only that Ms. Sol [the insured] did not procure the Policy” because “[Ms.] Sol did not pay the
premiums herself, with funds she had prior to the series of transactions relating to issuance of the
92
See id., Ex. 10 at 89:20–90:11 (emphasis added).
93
See id., Ex. 10 at 128:9–129:6; see also id., Ex. 10 at 25:17–25:21 (“Q: Do you recall that these premium finance
programs . . . would be called nonrecourse and that the insured who borrowed the money would have no personal
obligation to repay the loans? A: Yes.”); see id., Ex. 10 at 45:15–46:3 (re-iterating that the Policy was effectively a
“two-year free look”).
16
Policy.”94 The Sol Court rejected the defendant’s argument that Ms. Sol “procured the Policy by
obtaining a loan from Coventry Capital/LaSalle that she had a contractual obligation to repay and
which, ultimately, she did repay” because Ms. Sol did not have a “genuine obligation” to repay
loan.95 One reason for this conclusion was that “it was not actually [Ms.] Sol, but instead the
Sub-Trust, which was the borrower on the loan (as well as being the holder of the Policy)”—
thus, the Sub-Trust owed the obligation to repay the loan, not Sol.96 Even if Ms. Sol was
considered the borrower, “the non-recourse nature of the loan meant that neither she nor the Sub-
Trust had an ‘obligation to repay’ sufficient to support a conclusion that [she] actually ‘procured’
the Policy.”97 Accordingly, the Sol Court concluded that the Policy lacked an insurable interest
at its inception, making it void ab initio under Delaware law.98 The same rationale and
conclusion prevail in this litigation because Mrs. Barotz’s Policy was the product of the same
scheme as the policy in Sol.
During argument, VLF urged the Court to disregard Sol because it was decided before the
Supreme Court issued its decision in Berland and Berland did not expressly endorse its
reasoning. This argument fails for at least two reasons. First, Berland made clear that a life
insurance policy lacks an insurable interest if the use of nonrecourse financing allows the insured
to obtain the policy “without actually paying the premiums.”99 Appropriately, Sol rested on the
court’s conclusion that the use of nonrecourse financing allowed the insured to obtain her policy
without “pay[ing] the premiums herself.”100 Sol is therefore entirely consistent with Berland
despite pre-dating it. Second, the Court would reach the same conclusion concerning Mrs.
94
Sol, 369 F. Supp. 3d at 610 (emphasis in original).
95
Id.
96
Id.
97
Id. at 611.
98
Id. at 617.
99
Berland, 266 A.3d at 973.
100
Sol, 369 F. Supp. 3d at 610.
17
Barotz’s Policy even if it were to disregard Sol as persuasive precedent. Again, Coventry
Captial’s PFP Program was designed to provide the insured “free insurance for two years” and
imposed no “obligation [on the insured] to repay the loan.”101 Therefore, there is no genuine
dispute that Mrs. Barotz did not pay the premiums.
2. VLF fails to raise a factual dispute precluding summary judgment for the Estate.
VLF argues that there are factual disputes concerning the Estate’s claims that: (1) the
loan was “part of a program by Coventry to manufacture policies” for the life settlement market;
(2) Mrs. Barotz was “induced” to participate in the PFP Program; and (3) that Coventry Captial
dictated every part of the transaction.102 The Court finds that these purported factual disputes are
irrelevant to the operative question of whether Mrs. Barotz actually paid the premiums under her
Policy.
More pertinently, VLF attempts to raise a factual dispute by invoking the representations
and warranties Mrs. Barotz made in connection with the sale of Policy.103 Among other things,
Mrs. Barotz warranted that she “had not engaged in any conduct that would preclude buyer’s
recovery of benefits under the Policy” and agreed to indemnify the buyer and its successors for
“any lack by the Trust of an insurable interest in the life of the Insured at the time of the issuance
of the Policy.”104 VLF contends it is entitled to summary judgment in its favor based on these
representations and warranties or, “at the very least, they create an issue of fact with respect to
the factual allegations that the Estate relies upon for its motion.”105 The Court disagrees and will
101
Estate’s Mot. for S.J., Ex. 10 at 89:20–90:11.
102
See VLF’s Answering Br. at 4–16.
103
See id. at 15–16.
104
Id. (citing VLF’s Answering Br., Ex. 25 at §§ 1.10, 2.4).
105
Id. at 16.
18
address VLF’s argument in more detail below. Thus, there are no factual disputes precluding
summary judgment in the Estate’s favor.
3. VLF’s arguments under Berland fail.
VLF argues that the Estate has failed to establish that the Policy is an illegal human life
wager under Delaware law. In relevant part, VLF claims that Mrs. Barotz should be deemed to
have paid the Policy’s premiums because the Trust, “at [Mrs. Barotz’s] direction, borrowed the
money to pay premium on the Policy using a PFP Loan that [Mrs. Barotz] herself applied for.
When that loan came due, [she] decided that she wanted to sell the Policy for money and directed
her Trust to sell the Policy and repay the loan in full.”106 According to VLF, it is therefore
“indisputable that the insured’s trust actually paid the premiums as required under Berland,
which recognizes that an insured may use a nonrecourse loan to pay policy premiums so long as
the insured or trust actually pays the policy premiums.”107 VLF adds that “nonrecourse loans
and obligations are both lawful and commonly used, and the fact that LaSalle had no recourse
against [Mrs. Barotz] personally and was limited to recovering the Policy in the event of default
does not negate the Trust’s obligation to repay the loan.”108
VLF is correct that “nonrecourse loans and obligations are both lawful and commonly
used”—Berland acknowledged that. But Berland makes clear that the analysis does not end
there:
Price Dawe directs courts to determine who procured a policy by examining “who
pays the premiums.” The estate argues that the premium-financing structure here—
through which the premium payments were funded by a nonrecourse loan to the
subtrust, and Berland did not use any of her own assets—reflects that third parties
procured the policy. Lavastone argues that Delaware law permits the use of
premium financing to obtain a life-insurance policy, and that the “only relevant
question, then, is whether the loan transaction constitutes an unlawful wager under
106
VLF’s Answering Br. at 18.
107
Id. at 18–19
108
Id. at 20.
19
the Price Dawe factors.” If used to facilitate procurement of a policy for a
legitimate insurance purpose, such as estate planning, then premium financing is a
recognized and permissible tool. But the use of such financing might also be
evidence of an impermissible STOLI scheme, especially where the use of a
nonrecourse loan means that a third party, and not the insured, bears the entire
financial liability for obtaining the policy.109
Thus, the Court does not agree that Berland categorically permits the use of nonrecourse loans.
Moreover, VLF cannot reasonably argue that the nonrecourse loan here was “used to facilitate
procurement of a policy for a legitimate insurance purpose, such as estate planning.”110 Mrs.
Barotz was explicitly warned from the outset that “the Trust Agreement and the Supplement to
Trust Agreement are not intended to satisfy [her] estate planning needs and have not been
designed as an estate planning tool.”111
Finally, it bears repeating that nonrecourse premium financing “might also be evidence of
an impermissible STOLI scheme, especially where the use of a nonrecourse loans means that a
third party, and not the insured, bears the entire financial liability for obtaining the policy.”112
The undisputed facts establish that was just the situation here. Mrs. Barotz never paid any
premiums using her own funds, and the most she ever stood to lose was the Policy itself. Mrs.
Barotz bore no financial liability whatsoever—like the insured in Sol, Mrs. Barotz “did not have
a genuine obligation to repay the full amount of the Coventry/LaSalle loan.”113
Price Dawe established that “an insured cannot ‘procure or effect’ a policy without
actually paying the premiums.”114 There can be no genuine dispute that Mrs. Barotz did not
actually pay the premiums under her Policy, which was designed and marketed to function as
109
Berland, 266 A.3d at 972 (internal citations omitted) (emphasis added).
110
Id.
111
Plaintiff’s Mot. for S.J., Ex. 19 at 1–2.
112
Berland, 266 A.3d at 972.
113
Sol, 269 F. Supp. at 610 (emphasis added).
114
Price Dawe, 28 A.3d at 1076.
20
“free insurance for two years.”115 The Policy therefore lacks an insurable interest as required
under Section 2704, making it void ab initio.
C. VLF’S AFFIRMATIVE DEFENSES FAIL AS A MATTER OF LAW
VLF’s answer raised fourteen affirmative defenses.116 In its opening brief, the Estate
argues none of the defenses preclude summary judgment in the Estate’s favor because none are
viable under Delaware law. Conversely, VLF contends it is entitled to summary judgment on its
affirmative defenses asserting: (1) waiver; (2) release; and (3) that the Estate’s claims are barred
under the Delaware Uniform Commercial Code. The Court agrees with the Estate and holds that
VLF’s affirmative defenses fail.
1. Waiver and release
First, VLF’s waiver defense asserts that the Estate “has no rights to the Policy under 18
Del. C. § 2704 because Martha Barotz, Nathan Barotz, Peter Barotz, and the Trust waived them
in connection with the knowing and intentional relinquishment of the Policy.”117 Separately,
VLF asserts that the Estate’s cause of action is “also barred under the doctrine of release.”118
Both defenses rest on one paragraph from the Acknowledgement and Consent that Mrs. Barotz
signed in connection with her sale of the Policy:
The Insured, for itself and on behalf of its respective successors, assigns, hereby
remises, releases and forever discharges each of the Buyer and its present and
former officers, directors, stockholders, employees, agents, attorneys, successors,
affiliates and assigns from any and all claims, rights, actions, causes of action, suits,
liabilities, defenses, damages and costs that challenge or invalidate Buyer’s right
to, or the proceeds of the Policy, that may exist now or in the future, that relate to
alleged wrongdoing of third parties, including those parties involved in the
origination of the Policy or any financing to pay premiums thereon.119
115
See Plaintiff’s Mot. for S.J., Ex. 10 at 89:20–90:11.
116
See Answer to SAC at 12–20.
117
Id. at 13.
118
Id. at 14.
119
See Answer to SAC, Ex. A at 5.
21
VLF’s reliance on the release form is misplaced. Price Dawe made clear that a life
insurance policy lacking an insurable interest is void ab initio because it violates Delaware’s
“clear public policy against wagering.”120 Because the insurable interest requirement “serves the
substantive goal of preventing speculation on human life,” Section 2704(a) requires “more than
just technical compliance at the time of issuance. Indeed, the STOLI schemes are created to
feign technical compliance with insurable interest statutes.”121
Similarly, Berland rejected arguments that the estate’s claim was barred under the
doctrines of in pari delecto and unclean hand because “the General Assembly has prescribed that
the estate should receive the proceeds of the policy [created through a STOLI scheme] as a
matter of public policy.”122 In light of Price Dawe and Berland, VLF should not be allowed to
circumvent Delaware’s strong public policy against STOLIs simply because Mrs. Barotz agreed
to sign a boilerplate release form. To hold otherwise would legitimize the attempts of STOLI
promoters to “feign technical compliance with insurable interest statutes.”123
This conclusion is consistent with Malkin. In Malkin, the Supreme Court directed trial
courts to assess the “elements of the common-law defenses . . . asserted—and, where
appropriate, the public policy underlying the ban on human-life wagering—to decide the
viability of such defenses . . . to an estate’s action under Section 2704(b).”124 Here, VLF’s
defenses of waiver and release stand in direct conflict with public policy. “Under Delaware
common law, if a life insurance policy lacks an insurable interest at inception, it is void ab initio
120
Price Dawe, 28 A.3d at 1067–68.
121
Id. at 1074.
122
Berland, 266 A.3d at 974.
123
Price Dawe, 28 A.3d at 1074; see also Est. of Malkin v. Wells Fargo Bank, N.A., 379 F. Supp. 3d 1263, 1276–77
(S.D. Fla. 2019), aff’d sub nom. Est. of Malkin v. Wells Fargo Bank, N.A., 998 F.3d 1186 (11th Cir. 2021) (holding
an insured did not relinquish her estate’s right to recover a policy’s death benefit under Section 2704 by signing a
boilerplate release form).
124
Malkin, 2022 WL 1671966, at *6.
22
because it violates Delaware’s clear public policy against wagering.”125 If VLF’s defenses of
waiver or release were accepted, they would allow a downstream purchaser to retain the death
benefit paid under a void policy in clear contradiction to Delaware common law and Section
2704(a). Accordingly, those defenses are not “viab[le]” in the STOLI context.126
2. UCC defenses
VLF argues the Estate’s claims are barred under UCC Section 8-502.127 Malkin
expressly held that a defendant in a Section 2704(b) action cannot assert a UCC Section 8-502
defense.128 Thus, this defense likewise fails as a matter of law.
Because the affirmative defenses for which VLF seeks summary judgment fail, they do
not preclude summary judgment for the Estate.
D. VLF’S COUNTERCLAIMS FAILS AS A MATTER OF LAW
The Estate moves for summary judgment on VLF’s four counterclaims, whereas VLF
moves for summary judgment on its counterclaims for breach of contract and
indemnification/specific performance. The Court holds that the Estate prevails on all four
counterclaims as a matter of law.
First, the declaratory judgment counterclaim asks the Court to enter a judgment
“declaring the rights, status and legal relations among [VLF] and the Estate with respect to the
Policy’s proceeds.”129 The Court has done so by finding the Policy lacks an insurable interest
under Section 2704, making the declaratory judgment counterclaim moot.
125
Price Dawe, 28 A.3d at 1067–68.
126
See Malkin, 2022 WL 1671966, at *6.
127
VLF’s Mot. for S.J. at 29–30.
128
Malkin, 2022 WL 1671966, at *10.
129
Answer to SAC at 35–36.
23
Second, the breach of contract claim alleges the Estate “materially breached the
representations and warranties in the Acknowledgment and Consent signed by Martha
Barotz.”130 This counterclaim is simply rehashes VLF’s defenses of waiver and release, and fails
for the same reasons.
Third, VLF’s promissory estoppel claim is a repackaging of its breach of contract claim,
again resting on the Acknowledgment and Consent.131 Thus, this counterclaim fails as well.
The final counterclaim “seeks specific performance of the Estate’s obligation to hold it
harmless [from] any and all claims, losses, liabilities, costs and expenses, including without
limitation reasonable attorneys’ fees and disbursements, that it has incurred, and will in the
future incur, with respect to this action.”132 This counterclaim asks the Court to give effect to the
terms of the Acknowledgment and Consent. Again, the Court declines to do so. “At its core,
Price Dawe reaffirmed the unsavory truth about STOLI policies: they are nothing more or less
than a bet that a stranger will die. Price Dawe held that in Delaware, at least, such bets never
pay off.”133 Thus, VLF’s counterclaims uniformly fail as a matter of law.
E. THE ESTATE IS ENTITLED TO THE POLICY’S PROCEEDS
Section 2704(b) provides that “[i]f the beneficiary, assignee or other payee under any
contract made in violation of this section receives from the insurer any benefits thereunder
accruing upon the death . . . of the individual insured, the individual insured or his or her
executor or administrator, as the case may be, may maintain an action to recover such benefits
from the person so receiving them.” Section 2704(b) “directs that if a death benefit is paid under
an insurance policy that lacks an insurable interest, the estate of the insured may recover the
130
Id. at 36–37.
131
Id. at 38–39.
132
Id. at 40–41.
133
Estate of Malkin, 379 F. Supp. 3d at 1279 (internal citations omitted).
24
death benefit from the recipient.”134 Because the Estate has succeeded in demonstrating that
Mrs. Barotz’s Policy lacked an insurable interest at inception as a matter of law, the Estate is
entitled to the death benefit paid to VLF under the Policy.
Furthermore, because the Estate prevails on its Section 2704(b) claim, the Court does not
need to consider the Estate’s claim in the alternative for unjust enrichment.
VI. CONCLUSION
The Estate’s motion for summary judgment is GRANTED and VLF’s motion for
summary judgment is DENIED.
IT IS SO ORDERED
November 9, 2022
Wilmington, Delaware
/s/ Eric M. Davis
Eric M. Davis, Judge
cc: File&ServeXpress
134
Berland, 266 A.3d at 969.
25 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482619/ | USCA11 Case: 22-10219 Date Filed: 11/09/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10219
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADEDEJI ADENIRAN,
a.k.a. Tony,
a.k.a. Aare,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Florida
USCA11 Case: 22-10219 Date Filed: 11/09/2022 Page: 2 of 7
2 Opinion of the Court 22-10219
D.C. Docket No. 4:05-cr-00024-RH-MAF-1
____________________
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
Adedeji Adeniran, a federal prisoner proceeding pro se, ap-
peals the district court’s orders denying his motions seeking com-
passionate release. The government has moved for summary affir-
mance and to stay the briefing schedule. We grant the govern-
ment’s motion for summary affirmance.
I.
Adeniran participated in a conspiracy that defrauded feder-
ally insured credit unions and banks. In 2020, he pled guilty to one
count of conspiracy to commit bank fraud and two counts of bank
fraud. The district court sentenced him to 75 months’ imprison-
ment. In explaining the basis for the sentence, the district court dis-
cussed several of the sentencing factors set forth at 18 U.S.C.
§ 3553(a), 1 including the nature and circumstances of the offense
1 Under § 3553(a), the district court is required to impose a sentence “suffi-
cient, but not greater than necessary, to comply with the purposes” of the stat-
ute. 18 U.S.C. § 3553(a). These purposes include the need to: reflect the seri-
ousness of the offense; promote respect for the law; provide just punishment;
deter criminal conduct; protect the public from the defendant’s future criminal
conduct; and effectively provide the defendant with educational or vocational
training, medical care, or other correctional treatment. Id. § 3553(a)(2). The
court must also consider the nature and circumstances of the offense, the his-
tory and characteristics of the defendant, the kinds of sentences available, the
USCA11 Case: 22-10219 Date Filed: 11/09/2022 Page: 3 of 7
22-10219 Opinion of the Court 3
and the need to avoid unwarranted sentencing disparities. The dis-
trict court expressly considered Adeniran’s history and characteris-
tics, including that this was his first offense. The court also stated
that it had “taken . . . into account” Adeniran’s underlying health
conditions and the risks that he faced if he contracted COVID-19
while incarcerated. Doc. 289 at 27. 2
Adeniran appealed, challenging his sentence as substantively
unreasonable. We affirmed, explaining that under our abuse of dis-
cretion standard we do not “second guess the weight (or lack
thereof) that the [sentencing] judge accorded to a given factor un-
der § 3553(a), as long as the sentence ultimately imposed is reason-
able in light of all the circumstances presented.” United States v.
Adeniran, No. 21-10609, 2022 WL 443819, at *4 (11th Cir. Feb. 14,
2022) (unpublished) (emphasis in original) (internal quotation
marks omitted).
Approximately ninth months after the district court imposed
the sentence and while his direct appeal was pending, Adeniran,
proceeding pro se, filed a motion for compassionate release in the
district court. He requested a sentence reduction for several rea-
sons, including because he suffered from underlying health condi-
tions that put him at a greater risk of developing severe health
applicable guidelines range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwarranted sentencing disparities, and the
need to provide restitution to victims. Id. § 3553(a)(1), (3)-(7).
2 “Doc.” numbers refer to the district court’s docket entries.
USCA11 Case: 22-10219 Date Filed: 11/09/2022 Page: 4 of 7
4 Opinion of the Court 22-10219
consequences if he contracted COVID-19. The district court denied
the motion. The court assumed that Adeniran was eligible for a
sentence reduction but declined to exercise its discretion because
“a reduced sentence would not be sufficient to meet the § 3553(a)
sentencing factors.” Doc. 298 at 5. “If a new sentencing were con-
ducted today,” the court stated, it would impose the same sentence
“for the same reasons set out on the record of the original sentenc-
ing hearing, even considering all the information Mr. Adeniran has
now submitted.” Id.
After the district court denied Adeniran’s motion, he moved
for reconsideration, arguing that the § 3553(a) factors supported a
sentence reduction. The district court denied the motion.
This is Adeniran’s appeal. After Adeniran filed his appellant’s
brief, the government filed a motion for summary affirmance.
II.
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
or where “the position of one of the parties is clearly right as a mat-
ter of law so that there can be no substantial question as to the out-
come of the case, or where, as is more frequently the case, the
USCA11 Case: 22-10219 Date Filed: 11/09/2022 Page: 5 of 7
22-10219 Opinion of the Court 5
appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969). 3
We review de novo whether a defendant is eligible for a sen-
tence reduction under 18 U.S.C. § 3582(c)(1)(A). United States v.
Bryant, 996 F.3d 1243, 1251 (11th Cir. 2021). After eligibility is es-
tablished, we review for abuse of discretion a district court’s denial
of a defendant’s request for a sentence reduction. Id. We liberally
construe pro se filings. Jones v. Fla. Parole Comm’n, 787 F.3d 1105,
1107 (11th Cir. 2015).
III.
A district court may grant a motion for a sentence reduction,
if, after considering the § 3553(a) factors, it finds that “extraordinary
and compelling reasons warrant such a reduction” and that “a re-
duction is consistent with applicable policy statements” in the Sen-
tencing Guidelines. 18 U.S.C. § 3582(c)(1)(A). We have held that
the Sentencing Commission’s policy statement governing compas-
sionate release defines the universe of extraordinary and compel-
ling reasons that may justify a reduced sentence. Bryant, 996 F.3d
at 1262; see U.S. Sent’g Guidelines Manual §1B1.3 (U.S. Sent’g
Comm’n 2018). When denying a sentence reduction based on the
§ 3553(a) factors, “[a] district court need not exhaustively analyze
every factor in its order, but it must provide enough analysis that
3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
we adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to October 1, 1981.
USCA11 Case: 22-10219 Date Filed: 11/09/2022 Page: 6 of 7
6 Opinion of the Court 22-10219
meaningful appellate review of the factors’ application can take
place.” United States v. Cook, 998 F.3d 1180, 1184 (11th Cir. 2021)
(internal quotation marks omitted).
Here, we agree with the government that summary affir-
mance is appropriate. There is no substantial question that the dis-
trict court acted within its discretion when it concluded that the
§ 3553(a) factors did not support a sentence reduction.
Adeniran challenges the district court’s conclusion that the
§ 3553(a) factors did not support a sentence reduction. He argues
that the district court should have given greater weight to some
factors—such as his history and characteristics—and less weight to
others—such as the need to avoid an unwarranted sentencing dis-
parity and the nature and circumstances of the offense. But “[t]he
weight given to any specific § 3553(a) factor is committed to the
sound discretion of the district court.” United States v. Croteau,
819 F.3d 1293, 1309 (11th Cir. 2016). We conclude that the district
court was well within its discretion when it decided the particular
weight to afford to each § 3553(a) factor and determined that a re-
duction was not warranted in this case.
Adeniran also argues on appeal that he was eligible for relief
because he demonstrated extraordinary and compelling reasons for
a sentence reduction. But we need not address this issue because
the district court’s finding that the § 3553(a) factors did not warrant
a sentencing reduction forecloses relief. See United States v.
Tinker, 14 F.4th 1234, 1237–38 (11th Cir. 2021).
USCA11 Case: 22-10219 Date Filed: 11/09/2022 Page: 7 of 7
22-10219 Opinion of the Court 7
Because there is no substantial question as to the outcome
of this appeal, we conclude that summary affirmance is appropri-
ate. See Groendyke Transp., 406 F.2d at 1162. Accordingly, the
government’s motion for summary affirmance is GRANTED and
its motion to stay the briefing schedule is DENIED as moot. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482623/ | ***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***__
Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
09-NOV-2022
09:07 AM
Dkt. 17 SO
SCWC-XX-XXXXXXX
IN THE SUPREME COURT OF THE STATE OF HAWAI‘I
________________________________________________________________
STATE OF HAWAI‘I, Petitioner/Plaintiff-Appellant,
vs.
JERAMY M. TRONSON, Respondent/Defendant-Appellee.
________________________________________________________________
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 1DTA-19-00119)
SUMMARY DISPOSITION ORDER
(By: Recktenwald, C.J., Nakayama, and
Circuit Judge Wong, assigned by reason of vacancy,
with Wilson, J., dissenting, with whom McKenna, J., joins)
I. INTRODUCTION
Petitioner/Plaintiff-Appellant State of Hawai‘i (State)
filed a timely application for a writ of certiorari from the
July 31, 2020 judgment on appeal of the Intermediate Court of
Appeals (ICA) entered pursuant to the ICA’s June 30, 2020
Memorandum Opinion, which affirmed the May 9, 2019 judgment of
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***__
the District Court of the First Circuit. 1 The district court’s
judgment granted Respondent/Defendant-Appellee Jeramy M.
Tronson’s Motion to Suppress Statements after finding that
Tronson was subject to custodial interrogation without being
given Miranda warnings.
We hold that under our decision in State v.
Sagapolutele-Silva, 151 Hawai‘i 283, 511 P.3d 782 (2022), Tronson
was not in custody at the time he was asked the medical rule-out
questions as the record does not support the conclusion that the
circumstances of his stop rose to that of a formal arrest. The
ICA erred to the extent it held otherwise.
II. BACKGROUND
Tronson was pulled over at around 3:30 a.m. by a
Honolulu Police Department (HPD) officer after almost hitting
the officer’s car. After being informed why he was stopped,
Tronson apologized to the officer for almost hitting his car.
The officer noticed that Tronson’s eyes were red and glassy, his
speech was slurred, and his breath smelled like alcohol. The
officer asked Tronson if he was willing to participate in a
Standardized Field Sobriety Test (SFST), and Tronson agreed.
Prior to administering the test, the officer asked, and Tronson
answered in the negative, the medical rule-out questions.
1 The Honorable Summer M.M. Kupau-Odo presided.
2
***NOT FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER***__
Tronson was arrested and charged with Operating a
Vehicle Under the Influence of an Intoxicant (OVUII) in
violation of Hawai‘i Revised Statutes (HRS) § 291E-61(a)(1)
(Supp. 2018) 2 and Reckless Driving in violation of HRS § 291-2
(2007). 3 As relevant here, Tronson moved to suppress his answers
to the medical rule-out questions. 4 The district court ruled
that Tronson was in custody at the time these questions were
asked, and the ICA affirmed that finding. The ICA acknowledged
that the test for determining whether a suspect is in custody
requires consideration of the totality of the circumstances, but
emphasized the existence of probable cause to arrest Tronson for
2 HRS § 291E-61(a)(1) provides in relevant part:
(a) A person commits the offense of operating a vehicle
under the influence of an intoxicant if the person
operates or assumes actual physical control of a
vehicle:
(1) While under the influence of alcohol in
an amount sufficient to impair the person’s
normal mental faculties or ability to care for
the person and guard against casualty[.]
3 HRS § 291-2 provides: “Whoever operates any vehicle . . .
recklessly in disregard of the safety of persons or property is guilty of
reckless driving of vehicle . . . and shall be fined not more than $1,000 or
imprisoned not more than thirty days, or both.”
4 Tronson’s motion to suppress also sought to suppress all of his
statements subsequent to the traffic stop. The district court granted this
motion in full. On appeal, the ICA affirmed the district court’s suppression
of Tronson’s answers to the medical rule-out questions, while vacating the
court’s suppression of Tronson’s answers to whether he would participate in
the SFST and understood the SFST instructions as well as the results of the
SFST. Because the State’s application for writ of certiorari only contests
the ICA’s decision as to the medical rule-out questions, and because Tronson
did not file an application for writ of certiorari, the latter determinations
are not at issue in this order.
3
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Reckless Driving. State v. Tronson, 147 Hawai‘i 628, 465 P.3d
1075, 2020 WL 3542147, at *4-5 (App. June 30, 2020) (mem. op.).
The ICA also held that the medical rule-out questions
constituted interrogation. Id. at *7.
A. District Court Suppression Proceedings
The district court held a hearing on Tronson’s motion
to suppress on May 9, 2019. After hearing testimony from the
State’s sole witness, HPD Officer Tyler Maalo, the district
court found that Tronson “was in custody for Miranda purposes at
the time of the stop . . . because . . . clearly the officer had
probable cause to arrest [] Tronson even before he approached
the vehicle based on his observations of defendant’s driving.”
The district court granted Tronson’s motion to suppress. Its
written conclusions of law (COLs) state in relevant part as
follows:
5. To determine whether “interrogation” is “custodial,” [the
court] look[s] to the totality of the circumstances, focusing on
‘the place and time of the interrogation, the length of the
interrogation, the nature of the questions asked, the conduct of
the police, and [any] other relevant circumstances.’” [State v.
]Ketchum, [97 Hawaiʻi 107,] 122[, 34 P.3d 1006, 1021 (2001)
(citations omitted).] Among the “other relevant circumstances”
to be considered are whether the investigation has focused on the
suspect and whether the police have probable cause to arrest the
suspect. (First, second, and third alterations in original).
6. At the time when Officer Maalo first approached
Defendant while he was seated in his vehicle, there existed
probable cause to arrest Defendant for the offense of
Reckless Driving; and Defendant was not free to leave.
Accordingly, at this time, Defendant was “in custody” for
Miranda purposes.
The State appealed.
4
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B. ICA Proceedings
On appeal, the State challenged the district court’s
conclusion that Tronson was subject to custodial interrogation.
In essence, the State claimed that “Miranda warnings were not
required, because Tronson was not in custody or interrogated
before the SFST had been administered and [he] was arrested for
OVUII.”
In a memorandum opinion, the ICA agreed with the
district court that Tronson was in custody and subject to
interrogation when asked the medical rule-out questions. Citing
State v. Ah Loo, 94 Hawaiʻi 207, 211, 10 P.3d 728, 732 (2000),
the ICA acknowledged that Tronson was not in custody simply
because he was seized. Tronson, 2020 WL 3542147, at *4. But
the ICA still concluded that Tronson was in custody, based
primarily on the existence of probable cause to arrest for
Reckless Driving:
As we further noted in Sagapolutele-Silva, there is
no requirement for the police to arrest a suspect once
probable cause is established. Sagapolutele-Silva, 2020 WL
1699907 at *6 (citation omitted). The police need not halt
an investigation the moment they have the minimum evidence
to establish probable cause because it may fall short of
evidence necessary to support a criminal conviction. Id.
Nevertheless, “[a]n individual in police custody may not be
subjected to interrogation without first being advised of
his Miranda rights.” Id. (citation and internal quotation
marks omitted).
Under the totality of the circumstances in this case,
Tronson was in custody for Reckless Driving. Officer Maalo
had probable cause to arrest him for Reckless Driving when
he stopped him. In addition, as discussed below, upon his
initial conversation with Tronson, Officer Maalo had a
reasonable suspicion that he was driving while intoxicated.
5
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Officer Maalo testified that Tronson was not free to leave
from the time he was stopped. Under the totality of the
circumstances, the District Court did not err in COL 6 in
concluding that Tronson was in custody and that Tronson
should have been given Miranda warnings prior to any
interrogation.
Id. at *5.
Finally, the ICA held that the medical rule-out
questions were interrogation. Accordingly, the ICA affirmed the
district court’s suppression of Tronson’s responses to the
medical rule-out questions.
The State filed a timely application for writ of
certiorari.
C. Application for Writ of Certiorari
The State raises three questions in its application:
1. Whether the ICA gravely erred in holding that
Respondent-Defendant-Appellee, Jeramy M. Tronson (Tronson)
was in custody as soon as Honolulu Police Department (HPD)
Officer Tyler Maalo pulled him over.
2. Whether the ICA gravely erred in holding that the
medical rule-out questions asked as part of the Standard
Field Sobriety Test (SFST) are interrogation.
3. Whether the ICA gravely erred in suppressing
Tronson’s answers to the medical rule-out questions.
Tronson did not file a response.
III. DISCUSSION
As we recently held in Sagapolutele-Silva, 151 Hawai‘i
at 287, 511 P.3d at 786, the test to determine whether a person
is in custody is one of the totality of the circumstances,
objectively appraised from the perspective of a reasonable
person in the suspect’s position.
6
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Applied here, Tronson was not in custody. The
circumstances of Tronson’s detention amounted to no more than a
routine traffic stop, not the functional equivalent of a formal
arrest. Tronson was stopped briefly in public. Although
Officer Maalo believed he had probable cause to arrest Tronson
for Reckless Driving, Officer Maalo did not tell Tronson that he
was not free to go or otherwise restrain him from leaving. As
we explained in Sagapolutele-Silva, 151 Hawai‘i at 296, 511 P.3d
at 795, “[w]hile ‘[a]n officer’s knowledge or beliefs may bear
upon the custody issue if they are conveyed, by word or deed, to
the individual being questioned,’ they ‘are relevant only to the
extent they would affect how a reasonable person in the position
of the individual being questioned would gauge the breadth of
his or her “freedom of action.”’” (quoting Stansbury v.
California, 511 U.S. 318, 325 (1994)) (second alteration in
original). Officer Maalo informed Tronson why he stopped him,
and Tronson apologized to Officer Maalo for almost hitting his
car, but there is nothing to indicate that Tronson understood
that he had implicated himself in a crime that could lead to his
arrest. The point of arrest had not arrived, and Miranda
warnings were not required. 5
5 Because Tronson was not in custody at the time the medical rule-
out questions were asked, we need not reach the issue of interrogation;
Miranda warnings were not required.
7
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Accordingly, we hold that the ICA erred in affirming
the district court’s suppression of Tronson’s answers to the
medical rule-out questions.
IV. CONCLUSION
For the foregoing reasons, the ICA erred in affirming
the district court’s suppression of Tronson’s responses to the
medical rule-out questions. The ICA’s July 31, 2020 judgment on
appeal and the district court’s May 9, 2019 judgment are vacated
as to the suppression of those responses.
In all other respects, the judgment of the ICA is
affirmed. This case is remanded to the district court for
further proceedings consistent with this order.
DATED: Honolulu, Hawai‘i, November 9, 2022.
Brian R. Vincent, /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Alen M. Kaneshiro,
for respondent /s/ Paul B.K. Wong
8 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482621/ | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CENTER FOR BIOLOGICAL
DIVERSITY, et al.,
Plaintiffs,
v. Civil Action No. 22-cv-1716 (TSC)
U.S. DEPARTMENT OF THE INERIOR,
et al.,
Defendants.
MEMORANDUM OPINION
On June 15, 2022, Plaintiffs Center for Biological Diversity and WildEarth Guardians
sued Defendants U.S. Department of the Interior (“Interior”); Debra Haaland, Interior Secretary;
U.S. Bureau of Land Management (“BLM”); and Tracy Stone-Manning, BLM Director.
Plaintiffs challenge Defendants’ approval of approximately 4,019 applications for permits to drill
(“APDs”) for oil and gas in New Mexico’s Permian Basin and Wyoming’s Powder River Basin
between January 21, 2021, and May 31, 2022. ECF No. 57, Amend. Compl. ¶ 1.
Plaintiffs allege that the APD approvals violate the National Environmental Policy Act
(“NEPA”), 42 U.S.C. §§ 4321-4370m-11, the Endangered Species Act (“ESA”), 16 U.S.C. §§
1531-1544, and the Federal Land Policy and Management Act (“FLPMA”), 43 U.S.C. §§ 1701–
1787, as well as those statutes’ implementing regulations. Id. They ask the court, among other
things, to vacate the challenged approved APDs and enjoin Defendants from “approving or
otherwise taking action to approve any applications for permits to drill on federal public lands
and minerals until Defendants have fully complied with” NEPA, ESA, and FLPMA. Id. at 61.
Page 1 of 10
Since July 2022, nine prospective Defendant-Intervenors have filed Motions to Intervene
as of right under Federal Rule of Civil Procedure 24(a), or in the alternative, to permissively
intervene under Rule 24(b). Plaintiffs and Defendants have taken no position as to these motions
but reserved the right to file a response to them. To date, no such responses have been filed.
Because all movants satisfy the requirements in Rule 24(a) and possess the requisite standing to
intervene, the court will GRANT the motions to intervene.
I. BACKGROUND
The challenged APDs—totaling at least 4,019—“constitute approximately 74% of all
BLM onshore oil and gas drilling permit approvals” during the first 20 months of the Biden
Administration. Id. ¶ 100. Plaintiffs assert that in approving the APDs, Defendants failed to
adequately consider the cumulative impact of greenhouse gas emissions resulting from oil and
gas production in these regions and failed to comply with other procedural obligations. Id. ¶¶
101-04.
A. The Prospective Defendant Intervenors
Oxy USA Inc., OXY USA WTP LP Oxy, and Anadarko E & P Onshore LLC
(collectively “Oxy”) represents three drilling companies that have been issued 139 of the
challenged APDs. ECF No. 8, Mot. to Intervene by Oxy (“Oxy Mot.”) at 1-2. The companies
own mineral rights in New Mexico and Wyoming, which they acquired through government
lease sales and acquisitions from other companies. Id.
Chevron U.S.A., Inc. (“Chevron”) is one of the largest producers of oil and natural gas
and has been operating in the Permian Basin since the 1920s. ECF No. 17, Mot. to Intervene by
Chevron (“Chevron Mot.”) at 2. Chevron alleges that it holds approximately 90 challenged
permits. Id. at 1.
Page 2 of 10
Peak Powder River Resources, LLP (“PPRR”) also holds challenged drilling permits for
operations in the Powder River Basin. ECF No. 32, Mot. to Intervene by PPRR (“PPRR Mot.”)
at 1.
Anschutz Exploration Corporation (“AEC”) is an independent oil and gas development
company that holds 78 of the challenged APDs for federal leases in Wyoming. ECF No. 41,
Mot. to Intervene by AEC (“AEC Mot.”) at 1.
Franklin Mountain Energy, LLC (“FME”) is a Denver-based energy company that
operates solely in Lea County, New Mexico. ECF No. 53, Mot. to Intervene by FME (“FME
Mot.”) at 2. FME alleges that its oil and gas permits are almost all challenged APDs and that it
has already drilled or commenced drilling on more than half of the wells affected by the action.
Id at 3.
Petroleum Association of Wyoming (“PAW”) is Wyoming’s oldest petroleum industry
trade association, which advocates for oil and gas companies and represents companies holding
challenged APDs. ECF No. 12, Mot. to Intervene by PAW (“PAW Mot.”) at 2-3.
American Petroleum Institute (“API”) is the primary national trade association of the oil
and natural gas industry, representing approximately 600 companies in New Mexico and
Wyoming. ECF No. 20, Mot. to Intervene by API (“API Mot.”) at 2.
New Mexico Oil and Gas Association (“NMOGA”) is a coalition of more than 1,000 oil
and gas companies and individuals that hold federal permits in New Mexico. ECF No. 37, Mot.
to Intervene by NMOGA (“NMOGA Mot.”) at 1.
Finally, the State of Wyoming asserts property, regulatory, and economic interests in 322
of the challenged APDs, which implicate development interests on state lands. ECF No. 27,
Mot. to Intervene by State of Wyoming (“Wyoming Mot.”) at 1.
Page 3 of 10
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 24, a prospective intervenor may intervene as of
right if it:
(1) is given an unconditional right to intervene by a federal statute; or
(2) claims an interest relating to the property or transaction that is the subject of the
action, and is so situated that disposing of the action may as a practical matter
impair or impede the movant's ability to protect its interest, unless existing
parties adequately represent that interest.
Fed. R. Civ. Pro. 24(a). Because the prospective Defendant-Intervenors do not assert an
unconditional right to intervene by federal statute, they must meet the requirements of Rule 24(a)
to intervene as a matter of right. The application of that provision rests in turn on the following
four factors:
(1) the timeliness of the motion; (2) whether the applicant claims an interest relating
to the property or transaction which is the subject of the action; (3) whether the
applicant is so situated that the disposition of the action may as a practical matter
impair or impede the applicant's ability to protect that interest; and (4) whether the
applicant's interest is adequately represented by existing parties.
Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (quotations omitted).
In addition, a prospective intervenor must have standing under Article III of the
Constitution. Id. at 731-32, and therefore must show that: (1) it has “suffered an injury in fact”
that is “concrete and particularized” and “actual or imminent,” (2) there is “a causal connection
between the injury and the conduct” being challenged, and (3) it is “likely” that “the injury will
be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992)
(quotations omitted). An organization or association may assert standing on behalf of its
members when “(a) its members would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim
asserted nor the relief requested requires the participation of individual members in the lawsuit.”
Page 4 of 10
Hunt v. Wash. Apple Adver. Comm’n, 432 U.S. 333, 343 (1977); see, e.g., Brady Campaign to
Prevent Gun Violence v. Salazar, No. CV 08-2243 (CKK), 2009 WL 10695780, at *2 (D.D.C.
Apr. 8, 2009) (holding that the NRA had standing to intervene on behalf of its members to
defend a Department of the Interior rule allowing concealed firearms in national parks and
wildlife refuges because the NRA’s membership included “persons who intend to carry their
loaded, concealed, and operable firearms in national parks and wildlife refuges”).
III. ANALYSIS
All nine movants satisfy the conditions necessary for both standing and intervention
under Rule 24(a).
A. Article III Standing
Injury in fact results when “a party benefits from agency action, the action is then
challenged in court, and an unfavorable decision would remove the party’s benefit.” Crossroads
Grassroots Pol’y Strategies v. Fed. Election Comm’n, 788 F.3d 312, 317 (D.C. Cir. 2015); see,
e.g., Friends of Animals v. Ashe, 2015 WL 13672461, at *1, 3 (D.D.C. June 12, 2015) (concluding
that individuals who stood to benefit from challenged hunting permits issued by the U.S. Fish and
Wildlife Service had standing to intervene as of right).
Prospective intervenors Oxy, Chevron, PPRR, AEC, and FME directly benefit from the
challenged APDs. Collectively, they hold hundreds of challenged APDs and have commenced
drilling or intend to drill in New Mexico or Wyoming. Accordingly, they aver that the relief
Plaintiffs seek will result in the loss of property interests and financial investments in their permits,
which in some instances represent millions or even hundreds of millions of dollars. Oxy Mot. at
6-8; Chevron Mot. at 5-9; PPRR Mot. at 5-6; AEC Mot. at 5; FME Mot. at 3. Because these
prospective intervenors benefit from the approval of the APDs and would lose that benefit in the
event of an unfavorable decision, they satisfy the requirements for injury in fact. And because a
Page 5 of 10
favorable decision from this court would preserve that benefit, they satisfy the causation and
redressability requirements as well. As a result, all five movants have standing to intervene.
Associations PAW, API, and NMOGA have standing on behalf of their members. Each
represents oil and gas companies who participate in the federal leasing and permitting process in
Wyoming or New Mexico. Those member companies hold challenged APDs and have invested
significantly in oil and gas production pursuant to the APDs—establishing the same injury in fact
as the first five movants. PAW Mot. at 3, 5-8; API Mot. at 4, 5; NMOGA Mot. at 6. One of the
associations’ key purposes is to represent their members’ interests in the challenged APDs,
including by defending their approvals. See PAW Mot. at 5-8; API Mot. at 3 n. 2. There is no
reason to believe that the participation of their individual members is required to do so. Cf.
Buffalo Field Campaign v. Williams, 579 F. Supp. 3d 186, 195 (D.D.C. 2022), appeal dismissed
sub nom. Buffalo Field Campaign v. Haaland, No. 22-5064, 2022 WL 2135456 (D.C. Cir. June
14, 2022) (holding that plaintiffs had the requisite “suitability of an associational action” given
that “naming an individual member would do nothing to facilitate an appropriate remedy”). And,
as NMOGA notes, “a favorable outcome will redress potential injuries because [the
association’s] members will be able to continue” their production activities. NMOGA Mot. at 9.
As a result, the three association movants possess the requisite standing as well.
Lastly, Wyoming also benefits from approval of the challenged APDs. Wyoming states
that 322 of the challenged APDs are on Wyoming state lands or involve state interests. Wyoming
Mot. At 3. It also notes that it has expended significant resources to regulate the use of private,
state, and federal land, and to review and approve requests for state APDs, which is often a required
step before applicants can apply for federal APDs. Id. at 4. Finally, it observes that it receives
48% of the royalties from wells on federal land in Wyoming, 809 of which are challenged. Id. at
Page 6 of 10
5-6, 1. Wyoming uses this revenue to fund local governments and schools. Id. at 5-6.
Accordingly, Wyoming affirms that its property, regulatory, and economic interests are at stake if
Conservation Groups succeed in their claims. Id. at 3-6. Those interests, along with their causal
connection to the challenged APDs and redressability by a favorable decision, sufficiently
demonstrate Wyoming’s standing.
B. Four Elements Necessary to Intervene as of Right
The court concludes that all prospective Defendant-Intervenors may intervene as of right
under Rule 24(a)(2). Each of the four relevant factors supports that conclusion.
1. Timeliness of Motion
A motion to intervene must be timely filed. See NAACP v. New York, 413 U.S. 345, 365
(1973). Courts determine timeliness by “weighing the factors of time elapsed since the inception
of the suit, the purpose for which intervention is sought, the need for intervention as a means of
preserving the applicant’s rights, and the probability of prejudice to those already parties in the
case.” Karsner v. Lothian, 532 F.3d 876, 886 (D.C. Cir. 2008) (internal citations and quotation
marks omitted). That determination accounts for the stage of litigation at which intervention is
sought. See, e.g., Butte Cnty., CA v. Hogen, No. CIV.A.08-519 HHK AK, 2008 WL 2410407, at
*2 (D.D.C. June 16, 2008) (holding that because the case was in its “infancy” and because the
plaintiff did not oppose the motion, intervention was timely); Defs. of Wildlife v. U.S. Fish &
Wildlife Serv., No. 19-CV-746 (TSC), 2020 WL 12967765, at *2 (D.D.C. Apr. 17, 2020)
(determining that a motion to intervene was timely because the administrative record had not
been submitted, nor had briefing deadlines been scheduled). Whether too much time has elapsed
“is measured from when the prospective intervenor knew or should have known that any of its
rights would be directly affected by the litigation.” Roeder v. Islamic Republic of Iran, 333 F.3d
Page 7 of 10
228, 233 (D.C. Cir. 2003) (concluding that a motion to intervene filed four years after the
complaint was untimely).
Here, the prospective intervenors filed their motions within a few months after the
original complaint was filed, and weeks before the Plaintiffs filed their amended complaint and
Defendants filed their answer to that amended complaint. Briefing has not yet begun in earnest,
Defs. of Wildlife, 2020 WL 12967765 at *2, and none of the current parties have opposed the
intervention as untimely, Hogen, 2008 WL 2410407 at *2. Under these circumstances, neither
Plaintiffs nor Defendants have been prejudiced. See Wildearth Guardians v. Salazar, 272 F.R.D.
4, 14 (D.D.C. 2010) (holding that plaintiffs were not prejudiced when a prospective defendant-
intervenor filed a motion to intervene weeks before the plaintiffs’ amended complaint and the
federal defendants’ answer).
2. Interest and Standing
The second factor is a prospective intervenor’s “interest relating to the property or
transaction that is the subject of the action.” Fed. R. Civ. P. 24(a)(2). Constitutional standing
sufficiently demonstrates this interest. Red Lake Band of Chippewa Indians v. United States
Army Corps of Eng’rs, 338 F.R.D. 1, 5 (D.D.C. 2021).
All prospective Defendant-Intervenors have asserted such interests. As discussed above,
Oxy, Chevron, PPRR, AEC, and FME have standing to sue on their own behalf. Were
Defendants enjoined from taking further action on the approved APDs, these prospective
intervenors would lose property interests and financial investments in their permits. Oxy Mot. at
6-8; Chevron Mot. at 5-9; PPRR Mot. at 5-6; AEC Mot. at 5; FME Mot. at 3. Likewise,
associations PAW, API, and NMOGA have standing on behalf of their members and a
corresponding interest in the action. As discussed above, should Plaintiffs obtain injunctive
relief, the APDs would be “void”, and PAW, API, and NMOGA members would lose their
Page 8 of 10
respective substantial property and economic investments. PAW Mot. at 10; API Mot. at 5;
NMOGA Mot. at 5. In Wyoming’s case, were Plaintiffs’ claims to succeed, the State would lose
significant property and regulatory interests, as well as substantial revenue. Wyoming Mot. at 3-
6. Therefore, this factor also supports the movants’ intervention.
3. Impairment of Interest
The third factor is whether a prospective intervenor is “so situated that the disposition of
the action may as a practical matter impair or impede [its] ability to protect [its] interest.” Fed. R.
Civ. P. 24(a)(2).
The prospective intervenors here are so situated. Plaintiffs ask the court, among other
things, to vacate the challenged approved APDs and enjoin Defendants from “approving or
otherwise taking action to approve any applications for permits to drill on federal public lands
and minerals until Defendants have fully complied with” NEPA, ESA, and FLPMA. Amend.
Compl. at 64. That relief would void any approved APDs held by Oxy, Chevron, PPRR, and
FME, as well as those held by the members of PAW, API, and NMOGA, preventing those
companies from seeing a return on investments they made in infrastructure, equipment, and
personnel. It would also prevent Wyoming from exercising its property and economic interests
in any APDs that affect its state lands or its revenue from federal lands.
4. Adequacy of Representation
The fourth factor is whether the existing parties to the action adequately represent the
prospective intervenors’ interests. Red Lake Band of Chippewa Indians, 338 F.R.D. at 6. This
factor is “not onerous,” and generally allows parties to intervene unless the adequacy of
representation is “clear.” Fund For Animals, 322 F.3d at 735 (internal citations and quotation
marks omitted). “Governmental entities generally cannot represent the more narrow and
Page 9 of 10
parochial financial interests” of private parties. Wildearth Guardians, 272 F.R.D. at 15; see also
Fund for Animals, 322 F.3d at 737; Dimond v. D.C., 792 F.2d 179, 193 (D.C. Cir. 1986).
The prospective intervenors here have demonstrated that no existing parties adequately
represent their interests. Oxy, Chevron, PPRR, AEC, and FME aver that while Defendants’
interests are the regulation and management of public lands, the companies’ interests lie with
their property and financial investments in their specific APDs. Oxy Mot. at 9; Chevron Mot. at
10; AEC Mot. at 12; see Fund for Animals, 322 F.3d at 737. Likewise, they observe that their
“business interests” are narrower than the government’s interest in protecting the public. See
PPRR Mot. at 8; AEC Mot. at 11; FME Mot. at 8. The associations API, PAW, and NMOGA
assert the same points on behalf of their members. API Mot. at 13; PAW Mot. at 5; NMOGA
Mot. at 5. For its part, Wyoming contends that Defendants do not have an interest in protecting
Wyoming’s property and economic interests in state land. Wyoming Mot. at 14. These facts
suffice for intervention under this factor, too.
IV. CONCLUSION
The court will therefore GRANT prospective Defendant-Intervenors’ Motions to
Intervene: ECF No. 8; ECF No. 12; ECF No. 17; ECF No. 20; ECF No. 27; ECF No. 32; ECF
No. 37; ECF No. 41; and ECF No. 53.
Date: November 9, 2022
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
Page 10 of 10 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482620/ | USCA11 Case: 22-10043 Date Filed: 11/09/2022 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10043
Non-Argument Calendar
____________________
MICHAEL WAYNE LATHERS,
Petitioner-Appellant,
versus
WARDEN,
ATTORNEY GENERAL, STATE OF ALABAMA,
Respondents-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 1:21-cv-00207-MHH-SGC
____________________
USCA11 Case: 22-10043 Date Filed: 11/09/2022 Page: 2 of 6
2 Opinion of the Court 22-10043
Before WILSON, LUCK and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Michael Wayne Lathers, proceeding pro se,
appeals the district court’s order dismissing his motion for relief
from judgment under Federal Rule of Civil Procedure 60(b)(6) as
an impermissible second or successive 28 U.S.C. § 2254 habeas
corpus petition. On appeal, Lathers contends that the district court
abused its discretion by denying his motion because a Rule 60(b)(6)
motion permits him to circumvent the jurisdictional requirements
of 28 U.S.C. § 2244. Having read the appellant’s brief and reviewed
the record, we affirm the district court’s order dismissing Lathers
Rule 60(b)(6) motion for relief. 1
I.
We review a district court’s order denying a Rule 60(b)(6)
motion for abuse of discretion. Lambrix v. Sec’y, Fla. Dep’t of
Corr., 851 F.3d 1158, 1170 (11th Cir. 2017). We review a district
court’s order dismissing a petition for a writ of habeas corpus de
novo. San Martin v. McNeil, 633 F.3d 1257, 1265 (11th Cir. 2011).
II.
At the outset, we consider whether the district court had
jurisdiction to consider a Rule 60(b) motion. See Williams v.
1 The appellant did not serve the appellees with his underlying complaint;
thus, they did not file an appellate brief.
USCA11 Case: 22-10043 Date Filed: 11/09/2022 Page: 3 of 6
22-10043 Opinion of the Court 3
Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007) (“Federal courts are
obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking.” (quotation marks omitted)). We will
liberally construe pro se filings “to discern whether
jurisdiction . . . can be founded on a legally justifiable base.”
Fernandez v. United States, 941 F.2d 1488, 1491 (11th Cir. 1991).
Accordingly, courts are obligated to “look behind the label” of pro
se inmate filings to determine whether they are cognizable under
“a different remedial statutory framework.” United States v.
Jordan, 915 F.2d 622, 624 25 (11th Cir. 1990).
Under Fed. R. Civ. P. 60(b), a district court may relieve a
party from a final judgment or order for the following reasons:
(1) mistake, inadvertence, surprise, or excusable
neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to
move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or
extrinsic), misrepresentation, or misconduct by an
opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has
been reversed or vacated; or applying it prospectively
is no longer equitable; or
(6) any other reason that justifies relief.
Fed. R. Civ. P. 60(b) (emphasis added).
USCA11 Case: 22-10043 Date Filed: 11/09/2022 Page: 4 of 6
4 Opinion of the Court 22-10043
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), federal courts are precluded from granting habeas
relief on claims that were previously adjudicated on the merits in
state court, unless the adjudication “resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law” or “resulted in a decision that was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d).
Under 28 U.S.C. § 2244(b), a state prisoner who wishes to
file a second or successive habeas corpus petition must move the
court of appeals for an order authorizing the district court to
consider such a petition. 28 U.S.C. § 2244(b)(3)(A). If a petitioner
submits a successive § 2254 petition without first receiving
authorization, a district court is without jurisdiction to hear the
case and must dismiss the petition. Burton v. Stewart, 549 U.S. 147,
157, 127 S. Ct. 793, 799 (2007).
In the habeas context, the Supreme Court has held that Rule
60(b) motions are to be considered impermissible second or
successive habeas petitions if the prisoner either (1) raises a new
ground for substantive relief, or (2) attacks the habeas court’s
previous resolution of a claim on the merits. Gonzalez v. Crosby,
545 U.S. 524, 531-32, 125 S. Ct. 2641, 2647-48 (2005). On the other
hand, a Rule 60(b) motion can proceed if “neither the motion itself
nor the federal judgment from which it seeks relief substantively
addresses federal grounds for setting aside the movant’s . . .
USCA11 Case: 22-10043 Date Filed: 11/09/2022 Page: 5 of 6
22-10043 Opinion of the Court 5
conviction.” Id. at 533, 125 S. Ct. at 2648. Thus, a Rule 60(b)
motion would be proper, for example, if it (1) asserts that a federal
court’s previous habeas ruling that precluded a merits
determination (i.e., a procedural ruling such as a failure to exhaust,
a procedural bar, or a statute-of-limitations bar) was in error; or
(2) attacks a defect in the federal habeas proceeding’s integrity,
such as a fraud upon the federal habeas court. Id. at 532-36, 532-33
nn.4-5, 125 S. Ct. 2648-50, 2647-49 nn.4-5.
III.
The record here demonstrates that the district court did not
abuse its discretion by dismissing Lathers’s Rule 60(b)(6) motion
because the motion was an impermissible second or successive
§ 2254 petition. The district court had the authority to look behind
the label of Lathers’s motion and recharacterize it to the relevant
statutory framework. See Fernandez, 941 F.2d at 1491; Jordan, 915
F.2d at 624-25. Although Lathers may have framed his claim as a
Rule 60(b)(6) motion based on “defects” in the judicial system, he
directly attacked the validity of his conviction. Lathers argued that
he was entitled to a hearing on his “stand your ground” defense,
based on developments in Alabama caselaw, that would have
placed his conviction in question. This claim directly attacked the
validity of his conviction.
Further, the record demonstrates that Lathers filed his initial
§ 2254 petition in 2013, which the district court denied and
dismissed with prejudice. This Court denied a COA. Lathers has
only filed one application for leave to file a successive § 2254
USCA11 Case: 22-10043 Date Filed: 11/09/2022 Page: 6 of 6
6 Opinion of the Court 22-10043
petition, which this Court also denied. Because Lathers merely
reasserted arguments raised in a previous § 2254 petition, his
instant Rule 60(b)(6) motion was, in effect, an impermissible
second or successive § 2254 petition. Gonzalez, 545 U.S. at 531-32,
125 S. Ct. at 2647-48. Thus, we conclude that the district court
correctly found that because Lathers had not sought leave to apply
to file such a pleading before this Court, it lacked jurisdiction over
the pleading and dismissed the motion. See 28 U.S.C. §
2244(b)(3)(A).
Moreover, Lathers’s argument that Rule 60 allows him to
circumvent the jurisdictional requirements of § 2244 is
unsupported. The Court in Gonzalez explicitly stated that Rule
60(b) motions must assert that the previous procedural ruling was
in error or indicate a defect in the habeas proceeding’s integrity,
which Lathers did not do in his Rule 60(b)(6) motion below.
Gonzalez, 545 U.S. at 532-36, 532-33 nn.4-5, 125 S. Ct. at 2648-50,
2647-49 nn.4-5. Instead, Lathers reasserted his previous petition’s
claim, which did not satisfy the standard set out in Gonzalez.
Accordingly, based on the aforementioned reasons, we affirm the
district court’s order dismissing Lather’s Rule 60(b)(6) motion for
relief.
AFFIRMED. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482634/ | USCA11 Case: 21-13574 Date Filed: 11/09/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13574
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID HAMILTON SHARPE,
a.k.a. David Dukkedoff,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 4:20-cr-00016-RSB-CLR-28
____________________
USCA11 Case: 21-13574 Date Filed: 11/09/2022 Page: 2 of 12
2 Opinion of the Court 21-13574
Before WILSON, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Defendant-Appellant David Sharpe appeals his 292-month
sentence, arguing the government breached its plea agreement to
recommend 180 months. After careful review, we affirm his sen-
tence.
I.
A grand jury indicted Sharpe for conspiracy to possess with
intent to distribute and distribute 50 grams or more of metham-
phetamine and other controlled substances, in violation of 21
U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2 (Count 1) and posses-
sion of methamphetamine with intent to distribute, in violation of
21 U.S.C. § 841(a)(1) (Count 38). Sharpe and the government en-
tered a plea agreement. In exchange for pleading guilty to Count
1, the government agreed to dismiss Count 38 and recommend a
sentence of 180 months’ incarceration. The agreement also did not
preclude “the government from providing full and accurate infor-
mation to the Court and U.S. Probation Office for use in calculating
the applicable Sentencing Guideline range.”
The Probation Office prepared a Presentence Investigation
Report (PSI) and calculated an advisory guideline range of 360
months to life imprisonment. Sharpe objected to the PSI and re-
quested the Probation Office correct the criminal history score and
make note of the recommendation in the plea agreement. The
USCA11 Case: 21-13574 Date Filed: 11/09/2022 Page: 3 of 12
21-13574 Opinion of the Court 3
government filed a notice that it had no objection or comment re-
garding the PSI. All objections were resolved before the sentencing
hearing, and the district court accepted the PSI and its findings.
Sharpe also moved for a downward variance, arguing that
the government’s 180-month recommendation served as a better
advisory sentence. The government did not respond.
At the sentencing hearing, the district court invited the gov-
ernment to present an argument regarding the appropriate sen-
tence. The government stated, “we did file—enter a plea agree-
ment. We had a joint, nonbinding recommendation where the
United States was going to recommend—or is going to recom-
mend the 15-year sentence of imprisonment.”
Citing the PSI, the government then described Sharpe’s “sig-
nificant” criminal history and conduct. It also mentioned mitigat-
ing factors such as his difficult childhood, early drug abuse, mental
health issues, expulsion from ninth grade, and procurement of a
General Education Development certificate.
The district court made two inquiries. First, it asked
whether Sharpe played a larger role in the conspiracy than a code-
fendant. The government clarified that Sharpe played a “different
role.” While the codefendant had more access to drugs through a
cartel connection, Sharpe was “very good at coordinating deals”
both inside and outside of prison through his gang involvement.
Second, recognizing the PSI contained statements from witnesses
who claimed Sharpe managed drug distribution for multiple years,
USCA11 Case: 21-13574 Date Filed: 11/09/2022 Page: 4 of 12
4 Opinion of the Court 21-13574
the court asked if the quantity of drugs attributed to him in the PSI
was limited to the drugs discovered in a single search of his home.
The government confirmed this to be the case.
The district court ultimately sentenced Sharpe to 292
months’ imprisonment. The court noted that it considered the par-
ties’ arguments, read the PSI, and weighed the factors in 18 U.S.C.
§ 3553(a). The court stated that it varied downward from the orig-
inal guideline range because it found Sharpe’s criminal history to
be less substantial than was suggested, and a more appropriate
guideline range was 292 to 365 months. Choosing the low end, the
court cited the difficult life circumstances faced by Sharpe. None-
theless, it explained that it found the recommended sentence of 180
months to be “far, far too low” given the seriousness of Sharpe’s
offense, the extent of his criminal history, and the sentences given
to similarly situated defendants. The court went on to say that it
appreciate[s] when parties come together and get a
joint recommendation to the Court. It’s helpful to
the Court. It’s one of the reasons that I took a close
look at this case and that I did end up varying down-
ward from the guideline range, but it’s clear that I
need to maintain the discretion in some instances to
impose a higher sentence.
Neither party objected at that point, and Sharpe timely ap-
pealed.
USCA11 Case: 21-13574 Date Filed: 11/09/2022 Page: 5 of 12
21-13574 Opinion of the Court 5
II.
“Whether the Government breached a plea agreement is a
question of law, to be reviewed de novo.” United States v. De La
Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). However, when a
party fails to raise the issue before the district court, we review for
plain error. Id. Federal Rule of Criminal Procedure 51(b) provides
that “[a] party may preserve a claim of error by informing the
court—when the court ruling or order is made or sought—of the
action the party wishes the court to take, or the party’s objection
to the court’s action and the grounds for that objection.”
Sharpe urges us to review this issue de novo for two reasons.
First, he makes the novel argument that, when plea agreements are
broken, the defendant may prospectively preserve a claim or error
by informing the government and the district court through writ-
ten motion or oral argument that there is a joint recommendation
for a particular sentence. Sharpe argues that since he did this, both
the government and the district court were on notice of the gov-
ernment’s duty to recommend the 180-month sentence, and the
claim of error was preserved. Second, Sharpe argues that any at-
tempt to object to the error after it was made would be futile, since
the district court would already understand the government’s true
position regarding the sentence.
Both of Sharpe’s arguments fail. Sharpe points to Holguin-
Hernandez v. United States, 140 S. Ct. 762 (2020), to support the
proposition that claims of error can be made prospectively. In Hol-
guin-Hernandez, defense counsel made clear arguments in support
USCA11 Case: 21-13574 Date Filed: 11/09/2022 Page: 6 of 12
6 Opinion of the Court 21-13574
of a downward departure from the Sentencing Guidelines. See 140
S. Ct. at 765. Finding those arguments preserved the claim that the
sentence was unreasonable, the Supreme Court stated that the
“question is simply whether the claimed error was ‘brought to the
court’s attention.’ Here, it was.” Id. at 766 (internal citation omit-
ted).
Here, it was not. In Holguin-Hernandez, defense counsel
wanted the district court to make a downward departure from the
Sentencing Guidelines, so counsel argued for that. Here, Sharpe’s
counsel wanted the government to recommend and make argu-
ments in favor of a 180-month sentence. Yet, all Sharpe’s counsel
did was acknowledge the plea agreement, stating “[the sentence] is
jointly recommended by the parties, as evidenced in Paragraph 4
of [the] plea agreement and has been mentioned today by the
United States.” At no time did Sharpe’s counsel bring to the court’s
attention his position that the government was required to argue
for the 180-month sentence, nor did he ever object that the govern-
ment was violating its obligations under the plea agreement.
Simply put, Sharpe’s counsel did nothing to put the government or
the district court on notice that he had, or would have, any issue
with the government’s conduct. Thus, his objection was not
properly preserved. See Puckett v. United States, 556 U.S. 129,
133–35 (2009) (“This limitation on appellate-court authority serves
to induce the timely raising of claims and objections, which gives
the district court the opportunity to consider and resolve them.”).
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21-13574 Opinion of the Court 7
Sharpe’s argument that objecting to the government’s
breach in court would be futile is less novel and has already been
rejected by the Supreme Court. Indeed, in Puckett, the Court ad-
dressed this very argument and found that our procedural rules still
require a contemporaneous objection in this context for multiple
reasons: it prevents defendants from adopting a wait-and-see ap-
proach to objections; it allows the district court to adjudicate un-
conceded breaches and create a record for appellate review; it per-
mits some breaches to be cured upon objection; and it allows dis-
trict courts to grant immediate remedies if established breaches
cannot be cured. See id. at 139–40. Because the Supreme Court
has considered this exact argument and rejected it, we must as well.
Though, we also note that even if an objection were futile at the
district court level, we have granted relief when claims are properly
preserved. See, e.g., United States v. Hunter, 835 F.3d 1320 (11th
Cir. 2016).
Finding Sharpe did not preserve the claim of error for ap-
peal, we review for plain error.
III.
We find plain error when there is “(1) an error, (2) that is
plain, (3) that affects the defendant's substantial rights, and (4) that
seriously affects the fairness, integrity, or public reputation of judi-
cial proceedings.” De La Garza, 516 F.3d at 1269. An error is plain
if the explicit language of a statute, rule, or binding precedent
makes the mistake clear and obvious. United States v. Innocent,
977 F.3d 1077, 1081 (11th Cir. 2020). A defendant’s substantial
USCA11 Case: 21-13574 Date Filed: 11/09/2022 Page: 8 of 12
8 Opinion of the Court 21-13574
rights are affected if the error “affected the outcome of the district
court proceedings.” Puckett, 556 U.S. at 135 (quoting United States
v. Olano, 507 U.S. 725, 734 (1993)). The defendant bears the bur-
den of showing there is a reasonable probability the error was prej-
udicial, such that confidence in the outcome of the proceeding is
undermined. United States v. Iriele, 977 F.3d 1155, 1177 (11th Cir.
2020).
“When a guilty plea rests in any significant degree on a
promise or agreement of the prosecutor, so that it can be said to be
part of the inducement or consideration, such promise must be ful-
filled.” United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992).
Thus, to determine whether a plea agreement was breached, “we
must first determine the scope of the government’s promises.”
United States v. Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004).
This is determined by the defendant’s reasonable understanding of
the government’s promises at the time the agreement was signed.
Hunter, 835 F.3d at 1324. This is an objective standard, asking
“whether the government’s actions are inconsistent with the de-
fendant’s understanding of the plea agreement, rather than reading
the agreement in a hyper-technical or rigidly literal manner.” Id.
(internal quotation marks and citations omitted).
Here, Sharpe maintains he had a reasonable understanding
that the recommendation included a promise to use reasonable ef-
forts to advocate for a 180-month sentence; yet the government did
not use reasonable efforts. He points out that the government did
not object to the initial PSI nor respond after he moved for a
USCA11 Case: 21-13574 Date Filed: 11/09/2022 Page: 9 of 12
21-13574 Opinion of the Court 9
downward variance. Sharpe also contends that the government
barely mentioned the recommendation at the sentencing hearing
and failed to provide further explanation for why it was appropri-
ate. Instead, the government discussed Sharpe’s “significant” crim-
inal history. In addition, Sharpe claims he was “blindsided” when
the government took positions contrary to the recommended sen-
tence when answering the court’s questions. Specifically, Sharpe
takes issue with the government failing to argue he was less culpa-
ble than his codefendant and agreeing that the PSI did not account
for the drugs attributed to Sharpe by his coconspirators. All this,
Sharpe argues, was plain error. Sharpe also contends that the gov-
ernment’s conduct had a prejudicial impact on the final sentence.
We are unconvinced that these actions—even if they were
mistakes—were so “clear” and “obvious” that they amounted to
plain error. Olano, 507 U.S. at 734.
We consider first Sharpe’s claim that the government took
positions contrary to the plea agreement. Certainly, we have
found that doing so constitutes a breach. Yet, our caselaw finds
breach where the government took positions blatantly at odds with
the plea agreements. See, e.g., Hunter, 835 F.3d at 1328 (finding
breach when the government argued against a sentence reduction
despite an agreement to recommend it); United States v. Johnson,
132 F.3d 628, 630–31 (11th Cir. 1998) (finding breach when the gov-
ernment argued in favor of a PSI determination that the defendant
was accountable for 1400 pounds of marijuana despite an agree-
ment that no more than 100 pounds would be attributed to him).
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10 Opinion of the Court 21-13574
Here, the government promised it would recommend a sentence
of 180 months but maintained that it could provide information to
aid in calculating the Sentencing Guideline range. Unlike the cases
above, the government here did not clearly and obviously take po-
sitions contrary to those commitments. Rather, it stated that it was
recommending a 180-month sentence, it provided details about
Sharpe’s criminal history that were relevant to the Sentencing
Guidelines, and it answered questions that were also relevant to
the Guidelines. Indeed, the district court acknowledged that a joint
recommendation was made and used the information from the
hearing to discern a new, lower guideline range.
Neither are we convinced that it was objectively reasonable
for Sharpe to believe that an agreement to recommend a sentence
came with an implied promise to make arguments in favor of it.
Sharpe relies on United States v. Grandinetti where, despite a
promise to recommend a five-year sentence, the government
stated it had a serious issue with the agreement, was unsure of its
legality, but was nonetheless bound. 564 F.2d 723, 725 (5th Cir.
1977). 1 There, the district court stated that “the consideration
which induced defendant’s guilty plea was not simply the prospect
of a formal recitation of a possible sentence.” Id. at 726. Rather,
the defendant was induced by “the promise that an Assistant
1 We are bound by decisions of the former Fifth Circuit handed down before
October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
USCA11 Case: 21-13574 Date Filed: 11/09/2022 Page: 11 of 12
21-13574 Opinion of the Court 11
United States Attorney would make a recommendation on sen-
tencing,” which “could reasonably be expected to be the sound ad-
vice, expressed with some degree of advocacy.” Id.
Yet, the Supreme Court clarified in United States v.
Benchimol that such advocacy is not required. 471 U.S. 453 (1985).
There, the government agreed to recommend probation, but the
PSI said the government would stand silent at the sentencing hear-
ing. Id. at 454–55. When the defense counsel informed the court
that the government was to recommend probation, the govern-
ment merely confirmed that was accurate. Id. at 455. Relying on
Grandinetti, the Fifth Circuit determined it was a breach to merely
state the recommended sentence without explaining reasons for
the agreement or providing more enthusiastic support. Id. Revers-
ing, the Supreme Court stated that while “the Government in a
particular case might commit itself to ‘enthusiastically’ make a par-
ticular recommendation to the court” or “to explain to the court
the reasons for the Government’s making a particular recommen-
dation,” there was no finding “that the Government had in fact un-
dertaken to do either of these things here.” Id.
Here, the government agreed to recommend a sentence of
180 months, and it did. Although it did not provide enthusiastic
advocacy, it was not required to do so under the scope of the agree-
ment. And unlike Grandinetti, the government made no sugges-
tion that it took issue with the agreement. In other words, while
the government may have done the bare minimum it was required
to do, it nonetheless did the minimum.
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12 Opinion of the Court 21-13574
Even if we were to find that Sharpe demonstrated the gov-
ernment committed plain error, Sharpe cannot show there is a rea-
sonable probability that his substantial rights were affected. Sharpe
argues that the government’s actions had a profound impact on the
sentencing, but the record casts doubt on that claim. The district
court noted that it had considered the plea agreement but found
the recommendation “far, far too low” because “180 months would
simply not be sufficient” to reflect the severity of the offense, deter
future conduct, promote respect for the law, provide just punish-
ment, and protect the public. At best, we can only speculate
whether Sharpe would have received a more lenient sentence had
the government argued in his favor more vociferously. And there-
fore, we cannot conclude there is a reasonable probability that his
substantial rights were prejudiced.
IV.
Sharpe’s claim that the government breached the plea agree-
ment was not timely made, and therefore plain error review ap-
plies. Because Sharpe was unable to show the government obvi-
ously broke its promises or his substantial rights were clearly
harmed, we cannot find the government plainly erred. Accord-
ingly, we affirm.
AFFIRMED. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482639/ | Filed 11/9/22 P. v. Grant CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, A160415
v.
(Alameda County Super. Ct.
SEAN ALI GRANT, Case No. 18CR011120)
Defendant and Appellant.
A jury convicted defendant Sean Ali Grant of being a felon in
possession of a firearm (Pen. Code, § 29800, subd. (a)(1))1 and a felon in
possession of ammunition (§ 30305, subd. (a)(1)). On appeal, defendant
contends his convictions should be overturned on two grounds: (1) the trial
court abused its discretion in admitting expert witness testimony regarding
slang terms; and (2) the prosecutor’s closing argument misled the jury as to
the People’s burden of proof beyond a reasonable doubt. We will affirm the
conviction.
FACTUAL AND PROCEDURAL BACKGROUND
On the evening of June 29, 2018, Eric R., the head of security at New
Karibbean City (an Oakland nightclub), was performing his routine duties in
1 All subsequent statutory references are to the Penal Code unless
otherwise noted.
1
anticipation of the nightclub’s 10 o’clock opening. As Eric R. was setting up
rails in front of the club, defendant approached him and a scuffle ensued.
After another New Karibbean employee broke up the fight, defendant told
Eric R., “ ‘It’s a wrap for you[;] you better stop working here.’ ”
Defendant walked up the street and Eric R. followed him, asking
whether defendant “was satisfied.” “ ‘Nah,’ ” defendant replied. “ ‘Fuck that.
It’s a wrap.’ ” Eric R. heard defendant use the Facetime cell phone
application to ask an unknown man whether he had “ ‘that thang,’ ” a slang
term for “gun or pistol.” Then, after asking the man where he was, defendant
snapped a photograph of Eric R. with his cell phone and left the scene in a
white sedan.
Fearing for his life, Eric R. called the police, who were present at the
scene when defendant returned less than 30 minutes later. Eric R. identified
defendant on the spot, leading promptly to defendant’s arrest for battery and
criminal threats. Officers searched defendant incident to the arrest and
found a Toyota key.
The police discovered that the key was to a white Toyota Avalon sedan,
parked about 50 yards away from where defendant was detained. Visible
through the front passenger-side window were the handle, grip, and extended
magazine of a firearm resting on the floorboard. The police seized the
firearm and found live ammunition rounds in the magazine. Further
investigation revealed that the firearm was not registered to defendant but
that the white Toyota was registered to a Jacqueline V., whom defendant had
identified as his girlfriend during a traffic stop that occurred on April 4, 2018,
when he was driving the Toyota.
The Alameda County District Attorney charged defendant with
violations of sections 29800, subdivision (a)(1), and 30305, subdivision (a)(1),
2
prohibiting felons from possessing firearms and ammunition, respectively. At
trial, the People called Oakland police officer Omega Crum to testify as “an
expert in the area of slang, particularly as it pertains to firearms and firearm
accessories in the city of Oakland.” The prosecutor posed to Crum a
hypothetical scenario involving “Eric” and “Sean,” modeled on the interaction
between Eric R. and defendant. In Crum’s opinion, Sean was referring to a
firearm when he asked for “ ‘that thang,’ ” and when Sean told Eric “ ‘it’s a
wrap,’ ” Sean was saying he would kill Eric.
During closing argument, the prosecutor emphasized the
reasonableness of the People’s theory of the case, in which defendant knew
that the firearm was in the Toyota sedan: “I submit to you that there’s only
one reasonable conclusion in this case based on all the facts that you heard
and based on the law as it stands, and that is the defendant is guilty as
charged.” She then contrasted this reasonableness with the
unreasonableness of any alternative: “The law appreciates that you can come
up with unreasonable explanations and unreasonable possibilities on any
given issue, any given fact. And if you look at just one fact all by itself, you
might be able to think that some of those unreasonable possibilities are
reasonable based only on that one piece. But if you take a step back and look
at all the evidence that you received in this case, I submit to you that any
other explanation should be rejected because it is unreasonable.” Returning
to the same theme in rebuttal, the prosecutor asked jurors “to do justice in
this case. Be reasonable. If you do that, you will see that the defendant is
guilty as charged.”
The jury found defendant guilty of both charges.
3
DISCUSSION
A. Crum’s Expert Opinion Testimony
Defendant contends the trial court erred in admitting Crum’s expert
opinion testimony as to the respective meanings of “thang” and “it’s a wrap”
in the hypothetical scenario sketched by the prosecutor. Relying on Evidence
Code section 801, defendant contends Crum’s testimony was “improper
because it was not based on relevant, specialized knowledge and did not
assist [the] jury by providing testimony on matters beyond common
experience.” (Boldface and capitalization omitted.)
“ ‘The competency of an expert “is in every case a relative one, i.e.
relative to the topic about which the person is asked to make his
statement.” ’ ” (People v. Ramos (1997) 15 Cal.4th 1133, 1175.) “ ‘ “Where a
witness has disclosed sufficient knowledge of the subject to entitle his opinion
to go to the jury, the question of the degree of his knowledge goes more to the
weight of the evidence than its admissibility.” ’ ” (People v. Bolin (1998) 18
Cal.4th 297, 322, quoting Seneris v. Haas (1955) 45 Cal.2d 811, 833.) “ ‘The
trial court has broad discretion in deciding whether to admit or exclude
expert testimony [citation], and its decision as to whether expert testimony
meets the standard for admissibility is subject to review for abuse of
discretion.’ ” (People v. Duong (2020) 10 Cal.5th 36, 60.)
Evidence Code section 801 sets forth two criteria for the admission of
expert opinion testimony. First, the testimony must be “[r]elated to a subject
that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact.” (Evid. Code, § 801, subd. (a).) Second, the
testimony must be “[b]ased on” certain reliable matter, such as the expert’s
“special knowledge, skill, experience, training, and education.” (Evid. Code,
§ 801, subd. (b).)
4
We first address defendant’s contention that Crum’s testimony was
improper because it was not based on relevant, specialized knowledge. (See
Evid. Code, § 801, subd. (b).) Here, the trial court designated Crum “an
expert in the area of slang, particularly as it pertains to firearms and firearm
accessories in the city of Oakland.” Slang is “[l]anguage of a highly colloquial
type, considered as below the level of standard educated speech, and
consisting either of new words or of current words employed in some special
sense.” (Oxford English Dict. (2d ed. 1989).)
As the trial court noted, Crum’s expertise regarding the slang terms
“thang” and “wrap” derived from Crum’s considerable experience as a police
officer in Oakland. Crum worked for 18 years with citizen informants, who
are “just normal citizen[s]” who want “to provide information to the police
department.” Crum also dealt with confidential informants, a category that
includes people who inform “for monetary gains” as well as people who
cooperate with police after being arrested. With respect to “firearms
activity,” Crum conducted over 200 interviews with suspects and witnesses,
and also communicated with family, friends, and victims of known suspects.
Moreover, in his capacity as the “wire room coordinator,” Crum listened to
wiretapped conversations in which firearms were discussed by “gang
members” and “people that have committed some type of violence in the city
of Oakland.” Crum also reviewed social media posts and the contents of cell
phones seized under warrant, both of which featured references to firearms.
From this experience, Crum observed that firearms were often referred to by
slang terms like “strap, a hammer, thang, [and] glizzy.” (Italics added.) As
for “it’s a wrap,” Crum testified the phrase could be used either as a cue to
bring an activity to a close, or to mean, “I’m going to kill you.”
5
On this record, the trial court did not abuse its discretion in
determining that Crum could reliably testify about the slang terms at issue
based on relevant special knowledge he developed during his many years
working as an Oakland police officer. (Evid. Code, § 801, subd. (b).)
Moreover, the trial court could properly determine that firearms-related
slang lay “sufficiently beyond” the “common experience” of defendant’s jury
such that Crum’s expert opinion would be of assistance as contemplated
under Evidence Code section 801, subdivision (a). In sum, the trial court
acted within its discretion in admitting Crum’s testimony.
Finally, defendant contends that Crum’s expert testimony—which was
based in large part on Crum’s investigations of violent crimes and gang
crimes—improperly implied to the jurors that defendant was a violent
criminal or affiliated with gangs. We are not persuaded. As the record
reflects, the trial court admonished the jury during Crum’s testimony, as
follows: “Admonition to the jurors that although this officer has worked in
certain—on cases involving gang members and violent crime, that there is
absolutely no intention or allusion that’s made in terms of the defendant in
this case that he is involved in gangs or that he is involved in violent crime.”
We assume the jury heeded this admonition (People v. Burgener (2003) 29
Cal.4th 833, 874), and no basis for relief appears.
B. Alleged Error in the Prosecutor’s Closing Argument
Defendant also contends the prosecutor erred during her closing
argument by minimizing the People’s burden to prove guilt beyond a
reasonable doubt. Specifically, he argues the prosecutor misstated the
burden of proof when she repeatedly urged jurors to “be reasonable” and use
“common sense.”
6
Claims of prosecutorial error are forfeited on appeal if the defendant
fails to object below to the asserted error and does not request an instruction
or admonition to lessen any possible prejudice. (See People v. Nguyen (1995)
40 Cal.App.4th 28, 36, citing People v. Ghent (1987) 43 Cal.3d 739, 762.)
Here, defendant’s failure to object to the claimed error forfeits review of the
issue on appeal.
Seeking to avoid this conclusion, defendant argues his trial counsel’s
failure to object constituted ineffective assistance. Such a claim requires
defendant to show: (1) counsel’s representation “fell below an objective
standard of reasonableness” and (2) “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” (Strickland v. Washington (1984) 466 U.S. 668, 688, 694.)
Defendants raising a claim of ineffective assistance of counsel on direct
appeal will prevail only “in those rare instances where there is no conceivable
tactical purpose for counsel’s actions.” (People v. Lopez (2008) 42 Cal.4th 960,
972 (Lopez).) “This is particularly true where . . . the alleged incompetence
stems from counsel’s failure to object.” (Ibid.) “ ‘[D]eciding whether to object
is inherently tactical, and the failure to object will rarely establish ineffective
assistance.’ ” (Ibid., quoting People v. Hillhouse (2002) 27 Cal.4th 469, 502.)
The question here is whether the record establishes that defendant’s trial
counsel had no conceivable tactical purpose for failing to object to the
prosecutor’s argument.
“When attacking the prosecutor’s remarks to the jury, the defendant
must show that, ‘[i]n the context of the whole argument and the
instructions,’ ” that “there was ‘a reasonable likelihood the jury understood or
applied the complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we “do not lightly infer” that the jury
7
drew the most damaging rather than the least damaging meaning from the
prosecutor’s statements.’ ” (People v. Centeno (2014) 60 Cal.4th 659, 667,
quoting People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on another
ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
As relevant here, the trial court instructed with CALCRIM No. 223 as
follows: “Facts may be proved by direct or circumstantial evidence or by a
combination of both. . . . Circumstantial evidence does not directly prove the
fact to be decided, but is evidence of another fact or group of facts from which
you may logically and reasonably conclude the truth of the fact in question.”
(Italics omitted.) The court also instructed with CALCRIM No. 225 as
follows: “Before you may rely on circumstantial evidence to conclude that the
defendant had the required intent and/or mental state, you must be
convinced that the only reasonable conclusion supported by the
circumstantial evidence is that the defendant had the required intent and/or
mental state. If you can draw two or more reasonable conclusions from the
circumstantial evidence, and one of those reasonable conclusions supports a
finding that the defendant did have the required intent and/or mental state
and another reasonable conclusion supports a finding that the defendant did
not, you must conclude that the required intent and/or mental state was not
proved by the circumstantial evidence. However, when considering
circumstantial evidence, you must accept only reasonable conclusions and
reject any that are unreasonable.” Finally, the trial court’s instruction with
CALCRIM No. 226 included the following language: “In deciding whether
testimony is true and accurate, use your common sense and experience. You
must judge the testimony of each witness by the same standards, setting
aside any bias or prejudice you may have.”
8
Consistent with these instructions, the prosecutor reminded the jurors
that, as earlier discussed during jury selection, they should use their
“common sense” and should “evaluate humans generally to decide how much
of a witness’ testimony” to believe. At another point, she argued to the jurors:
“I submit to you we have both direct and circumstantial evidence of the
defendant’s guilt in these crimes. I submit to you when you look at all of the
circumstantial evidence together, the only reasonable conclusion is that the
defendant is guilty.” More specifically, the prosecutor argued that “the fact
that the gun is found in the car,” “in combination with the fact that someone
saw [defendant] driving that car, in combination with the fact that he had the
key, in combination with the fact that no one else is seen in, near or around
that car, and in combination with the fact that he literally threatened
someone with a gun 25 minutes beforehand, the only reasonable conclusion of
that circumstantial evidence is that the defendant possessed a firearm, he
knew he possessed a firearm.” A little later, the prosecutor told the jury:
“Please do use your common sense. Your common sense indicates to you that
the defendant’s conduct, his statements, the officers’ observations, the fact
that there’s a gun there, and frankly, even the fact that there’s a bunch of
low-level DNA on the gun, all corroborate what [Eric R.] heard and what I
submit to you is the theory of this case, which is that the defendant went and
got that gun, came back.” Toward the end of her opening argument, the
prosecutor reiterated: “Submit to you that when you look at all of the
evidence, the direct evidence, the circumstantial evidence, and all of the
indisputable evidence, that the only reasonable [conclusion] is that the
defendant is guilty.”
True, the prosecutor could have been more precise by more completely
arguing that the only reasonable conclusion to be drawn from the totality of
9
the direct, circumstantial, and undisputed evidence is that defendant is
guilty beyond a reasonable doubt. But to the extent the prosecutor erred in
being less than precise in her argument, this is not a case where there was
“no conceivable tactical purpose” for defendant’s trial counsel’s failure to
object. (Lopez, supra, 42 Cal.4th at p. 972.) As a tactical matter, defense
counsel could reasonably decide to use his own closing argument to
emphasize and focus on the People’s burden to prove guilt beyond a
reasonable doubt.
And that is what defendant’s trial counsel did, in spades. Defense
counsel started by observing that “[m]ere accusations don’t equal proof
beyond all reasonable doubt. Much more is needed. . . . [¶] . . . Proof beyond
all reasonable doubt is what’s needed.” Defense counsel proceeded to argue—
more than two dozen times—that the prosecution had the burden to establish
defendant’s guilt beyond a reasonable doubt and that the prosecution’s
evidence did not meet that standard. Defense counsel’s argument attacking
the prosecution’s case included the multivalence of the word “thang,” the
theme that animated the cross-examination of Crum, as one example of the
reasonable doubt in the case. This, as indicated, was but one of many
remarks made by defense counsel to counter or otherwise minimize the
prosecution’s evidence. Indeed, defense counsel’s argument successfully
prompted the prosecutor to agree, in her rebuttal argument, that she had the
burden to prove guilt beyond a reasonable doubt, though she proceeded to
argue that reasonable doubt did not arise from counsel’s speculative
arguments or the fact that certain evidence was not presented. In any event,
because the prosecutor’s remarks in her opening argument appeared to
largely track the concepts imparted in the jury instructions, it appears
entirely conceivable that defendant’s trial counsel believed he could more
10
effectively use his closing argument to emphasize the People’s burden to
prove guilt beyond a reasonable doubt.
Finally, defendant contends his trial counsel was ineffective for failing
to object when the prosecutor, during rebuttal, told the jurors “to do justice in
this case. Be reasonable. If you do that, you will see that the defendant is
guilty as charged.” We are not persuaded.
Specifically, the prosecutor made these remarks in addressing defense
counsel’s suggestion that “coincidence” explained the firearm’s presence in
the car to which defendant had a key. Observing that a coincidence is
defined as “a remarkable concurrence of events or circumstances without
apparent causal connection,” the prosecutor listed a number of coincidences
that one would have to find in order to conclude that defendant lacked
knowledge of the firearm’s presence, including that Eric R. happened to
mishear defendant say “ ‘thang’ ” and that “ ‘thang’ ” happened to be slang for
a firearm; that Eric R. told 9-1-1 that defendant was driving away in a white
car; that defendant returned to the scene and tried to avoid the police officers
who had arrived; and that defendant happened to be found with a key that
happened to open a white car in the area that happened to contain a firearm
and ammunition. “If I kept going,” she argued, “I’d be right in that scary
world where it’s okay to say all those things are just a coincidence and it’s
okay for this felon to have that gun in his car. But it’s not just a coincidence
because it’s not reasonable.” It was at this point that the prosecutor
remarked: “That is why I’m asking all of you ladies and gentlemen to do
justice in this case. Be reasonable. If you do that, you will see that the
defendant is guilty as charged.”
Viewing the prosecutor’s remarks in context, it is readily apparent that
her exhortation to the jurors to “be reasonable” was a call for the jurors to be
11
skeptical of defense counsel’s argument that a series of coincidental
occurrences could reasonably explain why defendant had no knowledge of the
firearm. This was consistent with CALCRIM No. 225, which told the jurors
that “when considering circumstantial evidence, you must accept only
reasonable conclusions and reject any that are unreasonable.” And as
indicated, the jury heard both the prosecutor’s rebuttal argument and the
trial court’s instruction explaining that the People had the burden to prove
guilt beyond a reasonable doubt. Viewing the entirety of the circumstances,
there is no “reasonable likelihood the jury understood or applied the
complained-of comment[] in an improper or erroneous manner.” (People v.
Frye, supra, 18 Cal.4th at p. 970.) Accordingly, we find no error in the
prosecutor’s rebuttal remarks, and in turn, no ineffective assistance of
counsel in the decision not to object to such remarks.
In sum, we reject defendant’s challenges based on prosecutorial error
and on defense counsel’s alleged ineffectiveness.
DISPOSITION
We affirm the conviction.
FUJISAKI, J.
WE CONCUR:
TUCHER, P.J.
PETROU, J.
People v. Grant (A160415)
12 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482640/ | Filed 11/9/22 P. v. Gonzalez CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302834
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA100818)
v.
RICARDO GONZALEZ et al.,
Defendants and
Appellants.
APPEAL from judgments of the Superior Court of Los
Angeles County, Mark C. Kim and Judith L. Meyer, Judges.
Affirmed in part; vacated in part and remanded with directions.
Susan K. Shaler, under appointment by the Court of
Appeal, for Defendant and Appellant Ricardo Gonzalez.
Laura S. Kelly, under appointment by the Court of Appeal,
for Defendant and Appellant Carlos Alexis Escalante.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
******
Defendants and appellants Ricardo Gonzalez and Carlos
Alexis Escalante1 were convicted of the murder of Enrique Lopez,
Jr. (Pen. Code, § 187, subd. (a))2 (count 1), attempted murder of
David Osuna (§§ 664, 187, subd. (a)) (count 2), and attempted
murder of Jerry Frazier (§§ 664, 187, subd. (a)) (count 4). As to
count 1, the jury found true two special circumstance
allegations—that the murder was perpetrated by means of
discharging a firearm from a motor vehicle at persons outside the
vehicle with the intent to cause death (§ 190.2, subd. (a)(21)) and
that defendants killed Lopez, Jr., while they were active
participants in a criminal street gang and to further the activities
of the gang (§ 190.2, subd. (a)(22)). As to counts 1, 2, and 4, the
jury found true allegations that defendants committed the offense
for the benefit of a gang (§ 186.22, subd. (b)) and that a principal
discharged a firearm causing great bodily injury (§ 12022.53,
subds. (d), (e)(1)). The jury also convicted Gonzalez of
transportation for sale of a controlled substance (Health & Saf.
Code, § 11379, subd. (a)) (count 8) and possession of a controlled
1 Gonzalez and Escalante are referred to collectively as
defendants.
2 All further statutory references are to the Penal Code
unless stated otherwise.
2
substance with a firearm (Health & Saf. Code, § 11370.1, subd.
(a)) (count 9).3
Gonzalez was sentenced to life without parole (LWOP) plus
55 years to life. Escalante was sentenced to LWOP plus 30 years
to life.
Defendants appeal from the judgments. They contend the
trial court erred by (1) improperly admitting into evidence
statements defendants made to undercover agents during a
Perkins4 operation; (2) improperly admitting into evidence
defendants’ hearsay statements implicating each other in the
crimes; (3) improperly limiting discovery and testimony about the
Perkins operation; (4) committing prejudicial judicial misconduct
during jury selection; (5) committing prejudicial judicial
misconduct during a defense expert witness’s testimony, and then
3 An amended 14-count information charged defendants with
offenses arising from three separate shooting incidents and
certain drug-related offenses. Counts 1 through 5 involved a
shooting on May 26, 2014, that is the subject of this appeal.
Counts 6, 7, and 10 involved a shooting on October 23, 2014.
Counts 8 and 9 involved controlled substance charges. Counts 11
through 14 charged only Gonzalez and involved a shooting on
October 17, 2014.
The jury returned a not guilty verdict on count 5 (the
attempted murder of Juan Cortez, who was present during the
May 26, 2014 shooting) and deadlocked on count 3 (attempted
murder of Enrique Lopez, Sr., also present during the May 26,
2014 shooting) and counts 6, 7, 10, 11, 12, 13 and 14. The trial
court dismissed counts 6, 7, 10, 11, 12, 13 and 14.
4 In a “Perkins operation,” a suspect is placed in a cell with
an undercover agent and their conversation is audio recorded.
(See Illinois v. Perkins (1990) 496 U.S. 292.)
3
improperly presiding over Escalante’s new trial motion; and (6)
improperly instructing the jury with CALCRIM No. 315, and
then allowing the prosecutor to make misleading statements
about that instruction. Defendants further contend (7) the
prosecution’s proof of the gang predicate offenses violated section
186.22, as amended by Assembly Bill No. 333 (2021-2022 Reg.
Sess.) (Assembly Bill 333), as well as the hearsay rule and the
confrontation clause; (8) section 1109, which became effective on
January 1, 2022, and allows a defendant to request bifurcation of
a gang enhancement allegation from the underlying offense,
applies retroactively and requires a new trial on the murder and
attempted murder charges; (9) defendants’ LWOP sentences
violate equal protection, Escalante was denied a proper Franklin5
hearing, and his counsel’s failure to present mitigating evidence
constituted ineffective assistance of counsel; (10) defendants’
LWOP sentences constitute cruel and unusual punishment; (11)
the driveby shooting special circumstance is unconstitutional;
(12) the cumulative errors were prejudicial; and (13) Escalante is
entitled to additional presentence custody credit.
The Attorney General concedes that under Assembly Bill
333, the gang sentence enhancements under section 186.22,
subdivision (b) and the gang firearm enhancement under section
12022.53, subdivision (e)(1) must be vacated and that Escalante
is entitled to additional presentence custody credit. We therefore
vacate the gang enhancement findings under section 186.22,
subdivision (b), and the gang firearm enhancement finding under
section 12022.53, subdivision (e)(1) under counts 1, 2, and 4;
remand for the People to elect to retry those allegations under
5 People v. Franklin (2016) 63 Cal.4th 261 (Franklin).
4
Assembly Bill 333; and direct the trial court to correct Escalante’s
presentence custody credits. We otherwise affirm the judgments.
FACTUAL BACKGROUND
The shooting
On May 26, 2014, about 12:30 p.m., Lopez, Jr., a Westside
Longo gang member, was standing near his sister Susanna
Lopez’s car near the corner of 65th Street and Paramount
Boulevard in Long Beach. His father, Enrique Lopez, Sr.;
Susanna’s boyfriend David Osuna; neighbor Jerry Frazier; a
mechanic named Juan Cortez; and two children were also
present.
Frazier saw a blue Honda Civic driving east on 65th Street
toward Paramount Boulevard. The car slowed as it approached.
The front passenger had a gun and fired several rounds. When
Frazier saw the gun, he hid behind a blue dumpster. He heard
several bullets hit the dumpster. When the shooting began,
Lopez, Sr., and Cortez ducked and Osuna ran. Osuna suffered a
bullet wound to the leg. Lopez, Jr., was killed by a single
gunshot to his upper middle back.
Lopez, Sr., told police that on the morning of the shooting,
he saw a blue Honda or Toyota drive by. He saw the passenger
make hand signs. Lopez, Sr., later identified Escalante as the
passenger in a Facebook photograph provided by detectives. At
trial, Lopez, Sr., pointed to Escalante, who was seated in the
courtroom, as the person he identified as the vehicle passenger
when he was interviewed by detectives.
Three nine-millimeter bullet casings were found in the
street near the corner of Paramount Boulevard and 65th Street.
Another nine-millimeter casing was found on 65th Street near
5
the blue dumpster, which had a bullet hole. The recovered
casings were fired from the same gun.
Defendants’ arrest
On November 19, 2014, Long Beach Police Officer Andrew
Fox conducted a traffic stop of a blue Honda Civic. Escalante was
driving and Gonzalez was the front passenger. Both were
arrested. Gonzalez was 19 years old at the time. Escalante was
18 years old but would be 19 the following month.
On the day of their arrest, defendants were questioned
separately by Detective Robert Gonzalez about a different
shooting that occurred on October 23, 2014. At the outset of the
interview, Detective Gonzalez advised defendant Gonzalez of his
Miranda6 rights. Defendant Gonzalez indicated he understood
and began talking to the detective. Defendant Gonzalez
subsequently requested an attorney, and the detective stopped
questioning him.
Detective Gonzalez also advised Escalante of his Miranda
rights at the outset of his interview. Escalante indicated that he
understood and continued speaking with Detective Gonzalez
until the interview was concluded.
Perkins operations
On November 20, 2014, Detective Sean Irving conducted a
Perkins operation by placing defendants in separate cells at the
Long Beach jail with paid agents who posed as fellow inmates.
An audio recording of the operation was played for the jury.
Gonzalez
Gonzalez was placed in a cell with two Perkins agents
(designated in the transcript of the operation as PA1 and PA2).
6 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
6
PA1 was a Hispanic male in his mid-30’s, approximately six feet
tall and weighed 300 pounds. PA2 was in his early 30’s,
approximately five feet 10 inches tall, and weighed 180 pounds.
PA2 had visible tattoos on his arms.
While the agents were in his cell, Gonzalez told PA1 that
he was an Unos Sin Verguenzas (USV) gang member known as
“Glock.” Detective Peter Lackovic subsequently entered the cell
area and informed Gonzalez that he was being investigated for a
murder that occurred on 65th Street. Lackovic told Gonzalez,
“Your boy Rascal’s already here. You already know that.” Before
leaving the cell area, Lackovic asked Gonzalez, “You all straight?”
Gonzalez responded, “Cool.” Lackovic said, “If you need
anything, tell one of the jailers.” Gonzalez said, “All right.”
When Lackovic left the cell area, PA1 asked Gonzalez,
“What; you, like, the most live homie from the hood or what?”
Gonzalez replied, “Shit, I didn’t get ‘Glock’ for no reason.” PA1
said, “I need some youngsters like that on my team, fool.” PA1
then asked Gonzalez, “who’s the fool that [Lackovic] was talking
about?” Gonzalez identified him as “the homie” who was arrested
with him and acknowledged that he was Gonzalez’s “crime
partner.”
Detective Gonzalez later entered the cell area to obtain a
DNA sample from defendant Gonzalez. The detective asked
Gonzalez, “How long you doing?” Gonzalez responded, “Good.”
Detective Gonzalez then asked, “They treating you all right?”
Defendant Gonzalez said, “Yeah.”
Defendant Gonzalez told the Perkins agents he was 19
years old, had been “affiliated” with the USV gang since he was
13, and started “banging” at age 16. He said the 65th Street
shooting had occurred during the day and that he had used a
7
Smith and Wesson firearm. Gonzalez told the agents he was
driving his mother’s blue Honda Civic when he and Escalante
passed a group of people, whom they did not know. One member
of the group had a “Longo” tattoo on the back of his neck.
Escalante exited the Honda and started “banging” on the group.
Gonzalez told him to get back into the car because they would
return later. After switching the Honda’s license plates to dealer
plates, Gonzalez and Escalante returned to the victims’ location.
This time, Escalante drove and Gonzalez was the passenger. An
older gang member known as “Lento” accompanied them. When
Escalante stopped the Honda at the victims’ location, Gonzalez
fired nine rounds at the group. Gonzalez saw “four fools down,
but only one down, down.” Gonzalez also shot at a “big old black
guy” who hid behind a trash can. The following day, Gonzalez
sold the gun he had used in the shooting to members of another
gang. When one of the Perkins agents asked Gonzalez whether
he felt any remorse about the shooting, Gonzalez responded, “No.
Hell no.”
Escalante
Escalante was placed in a cell with the same larger Perkins
agent (PA1) who had been in Gonzalez’s cell. At some point
during the operation, Escalante made a telephone call. He asked
the Perkins agent to help him remember some numbers, and the
agent complied. When he finished the call, Escalante asked the
agent, “what they got you for?” The agent responded, “got a
warrant for murder.” Escalante said, “me fucking too.”
Escalante then asked the agent, “where you from?” and stated
that he (Escalante) was “USV.” Later, the Perkins agent also
made a telephone call. During the call, the Perkins agent said,
“hey do me a favor . . . and try to post my bail. Yeah . . . put the
8
house. They got me for that shit over there in L.A. . . . Okay.
Make sure you get it done.”
Detective Lackovic later entered the cell area and told
Escalante he and “Plato” had been arrested for a murder on 65th
Street and that Escalante had been identified as the shooter.
Lackovic said he knew Escalante’s moniker was Rascal and that
Gonzalez was known as Plato. When Lackovic left, the Perkins
agent asked Escalante “who’s Plato?” Escalante identified him as
“[t]he homie” who shot at the victims on 65th Street. Escalante
stated, “He shot. I drove.” Escalante verified that Plato was also
known as Glock. Escalante also acknowledged that his moniker
was Rascal.
Escalante said the shooting had occurred in May during the
day. He and Gonzalez were driving by when they first saw the
victims. Gonzalez and Escalante did not know the victims, who
were “banging” on them, or challenging them. Gonzalez was
driving at the time, a blue “low key ass car.” Gonzalez,
Escalante, and an older gang member known as “Gecko” or
“Gunner” returned to the victims’ location that same day. Before
doing so, Escalante and Gonzalez switched places. Escalante
drove because Gonzalez “wanted to bust” on the victims.
Gonzalez fired eight rounds at the victims. Gonzalez
subsequently sold the gun he had used in the shooting.
Defendants’ jail conversation
After the Perkins operation, defendants were placed in
nearby cells with a recording device in the cell between them. An
audio recording of their conversation was played for the jury.
Escalante told Gonzalez during their recorded conversation
that a detective came to see him about the incident “that
happened on Six-Five.” Escalante said, “I was driving in Six-
9
Five” and “I’ll go down as the driver, . . . but . . . I ain’t gonna be
the shooter.” Escalante further stated, “I’m trippin about the
Honda,” and “they got the car.” Gonzalez reassured him that the
Honda “didn’t have the regular plates” during the shooting.
Escalante asked, “What happened to those plates?” Gonzalez
responded that he threw them away.
Gonzalez said, “[N]obody seen us that . . . day. When the
shots were going off, everybody was gone.” Escalante replied, “I
was driving dog, I don’t know.” Gonzalez responded, “I could
see.” When Escalante asked Gonzalez what kind of gun he had
used, Gonzalez replied, “Smith and Wess. Nina.” Gonzalez and
Escalante discussed fabricating an alibi and alternate locations
where they could say they had been at the time of the shooting.
These included Plaza Mexico, a barbeque, or a cemetery.
Gonzalez pointed out that the police would attempt to verify the
time and location of defendants’ proposed alibi and could use
security camera footage to do so. Gonzalez advised, “Be, like, we
don’t . . . remember.”
Escalante and Gonzalez discussed their respective
encounters with the Perkins agents and determined they had
both been with the same person. Escalante referred to the
Perkins agent as the “[f]at nigga” and said, “That fool’s cool.”
RELEVANT PROCEDURAL BACKGROUND
Gonzalez filed a motion to exclude his statements made
during the Perkins operation, arguing they were obtained in
violation of his constitutional rights to counsel, to remain silent,
and due process. His motion was supported by the declaration of
Martin Flores, a gang expert, who opined in relevant part as
follows:
10
“It is my personal, educational, and
professional opinion that . . . the confidential
informants utilized in this operation made their gang
status and ties to the Mexican Mafia to Mr. Ricardo
Gonzalez by talking about their crimes and
knowledge of gang members. They command a
presence of being very knowledgeable of the gang
dynamics and the jail politics. [¶] . . . [¶] In my
extensive experience with Perkins Operations . . . the
informants are NOT just . . . a very experienced
inmate that upon immediate contact the target
realizes that they are being questioned by somebody
who can impact their jail experience. This tactic
brings an environment of duress and pressure to
either fabricate or exaggerate their role in an alleged
crime.”
The prosecutor opposed the motion.
At a January 4, 2018 hearing, Escalante made an oral
motion to join Gonzalez’s motion to exclude the Perkins
statements. Gonzalez’s counsel indicated he intended to offer
Flores’ testimony, stating:
“He’s an expert in the matter of gangs. He has
an opinion . . . as to the influence of a Mexican Mafia
shot caller in a cell . . . with a 19-year-old person who
is in jail for the first time . . . and as a gang member,
what his mindset would be . . . .”
The trial court (Hon. Mark C. Kim) stated, “The only one
that could tell me whether he was coerced or not is the person
claiming that he was coerced.” The court further stated:
“[I]t does not matter what your expert knows.
The question is at the time of the conversation was
[Gonzalez] aware who these individuals were, that
they were Mexican Mafia members that you allege
because, if he didn’t know, it’s irrelevant.”
11
Gonzalez testified at the hearing. When his attorney asked
him who he thought one of the Perkins agents might be, Gonzalez
replied, “I didn’t know who he was. I just—just another person.”
Gonzalez further testified he had never been in jail before. He
stated: “I felt afraid. I felt I had to go along with it, impress—
say whatever I can, whatever I knew about what had happened,
you know, just to feel like I’m on the same page with them.”
On cross-examination, Gonzalez admitted he was laughing
when he talked to the Perkins agents and that they had also
talked about girls. He further admitted that the agents never
said they were members of the Mexican Mafia or verbally
threatened him. Gonzalez testified that the agents made
threatening gestures, but when asked to explain further he
replied, “I couldn’t—I can’t recall.” Gonzalez also testified that
on the day before the Perkins operation, detectives tried to
question him about a different attempted murder, and he asked
for a lawyer.
Gonzalez’s counsel then sought to call Flores as a witness.
When the trial court asked for a proffer, counsel responded, “The
proffer is the state of mind of [Gonzalez].” The trial court stated:
“He can’t testify as to state of mind of Mr. Gonzalez. He’s not an
expert on state of mind. [H]is designated expertise is gang
membership, gang crimes.” The following exchange ensued:
“[Gonzalez’s counsel]: My proffer is he would
testify to being a gang member. What does that
mean being placed in a cell with older gang members
who have been to prison, and what would that mean
to you as being a gang member in the cell, a young
gang member? How would that affect what or what
you did not say . . . .
12
“The court: I guess the only problem is the
person that would have an effect has already
testified. So how would Mr. Flores add to that?
“[Gonzalez’s counsel]: As I said, he would
add—as far as . . . fleshing out the circumstances of
how gang members react to each other.
“The court: But we have the best source, the
person that just testified. He told us how it affected
him in that circumstances.” (Boldface omitted.)
The court ruled Flores’s testimony not relevant.
Detective Lackovic then testified that the Perkins agents
were Hispanic, in their 30’s, and had tattoos. One of the agents
was about five feet four inches tall, and the other was around six
feet fall. Both were “kind of fat.”
After hearing argument from counsel, the trial court denied
the motion to exclude Gonzalez’s statements. The court found,
based on Gonzalez’s demeanor and testimony, that Gonzalez
lacked credibility and that the motion was without merit.
Escalante then testified. He described the Perkins agent in
his cell as approximately six feet four inches tall and 300 pounds,
in comparison to Escalante, who was five feet seven inches tall.
Escalante testified that he thought to himself, “the guy has not
approached me. Maybe I should stay out of his way.” Escalante
further testified that the Perkins agent said that he had gotten
rid of a witness. Escalante said he was afraid. After overhearing
the Perkins agent’s telephone call in which the agent gave
instructions to post his bail and “put the house up,” Escalante
believed the agent had rank in a gang. He thought, “if this guy
approaches me, I’ll just get on his good side” and say what he
wants to hear.
13
On cross-examination, Escalante admitted that he initiated
the conversation with the Perkins agent and that Escalante
voluntarily disclosed that he had been arrested for murder.
Escalante further admitted that when he made a telephone call,
he asked the agent to help him remember a number.
Escalante testified that the agent never “directly”
threatened him. Escalante explained: “He sent subliminals. He
would tell me things like, you know, as far as there’s no witness.
I mean, that means pretty much he did something to the
witness.”
On January 5, 2018, after hearing argument from counsel,
the trial court denied the motion to exclude Escalante’s
statements to the Perkins agent. The court ruled that Miranda
was not implicated and that, based on the totality of the
circumstances, there was no coercion.
The case was subsequently reassigned to the Honorable
Judith L. Meyer, who presided over the trial. Defendants filed
motions to exclude their Perkins statements, which Judge Meyer
denied.
TRIAL TESTIMONY
Prosecution gang expert testimony
Los Angeles County Sheriff’s Detective Miguel Fuentes, the
prosecution’s gang expert, testified that he was familiar with a
Hispanic gang known as USV. Fuentes opined that members of
the USV gang, individually and collectively, have engaged in a
pattern of criminal gang activity, including assault with a deadly
weapon, attempted murder by use of a firearm, and murder by
use of a firearm. After being presented with a hypothetical based
14
on the facts of this case, Fuentes opined the subject crimes were
committed for the benefit of and in association with a gang.
Fuentes further testified that he was familiar with a
separate case involving USV gang members Jose Rangel, Enrique
Hernandez, and Jesus Hernandez, who were convicted on
August 15, 2014, of the murder of Jonathan Sandoval, a member
of a rival gang.
Defense evidence
Dr. Kathy Pezdek testified as a defense expert on
eyewitness identification. She discussed 10 factors that can
affect the accuracy of eyewitness identification: (1) exposure
time, (2) distance and obstruction, (3) weapon focus, (4) stress, (5)
use of a disguise, (6) cross-racial identification, (7) time delay, (8)
biased identification test, (9) double-blind procedure, and (10)
bias of in-court identification.
Gairy Jackson, who witnessed the shooting through the
window of his apartment, also testified as a defense witness.
Jackson observed a slow-moving black, four-door hatchback
approach the victims and then heard four to five gunshots. He
saw Lopez, Jr., fall to the ground. Jackson further testified he
saw the driver of the car and the passenger, both of whom
appeared to be African-American males.
DISCUSSION
I. Admission of defendants’ statements during the
Perkins operation did not violate their constitutional
rights
A. Miranda
A defendant’s statements made during a custodial
interrogation are inadmissible against him unless he was advised
15
of his Miranda rights7 and did not invoke his right to remain
silent or to be represented by counsel. (People v. Orozco (2019) 32
Cal.App.5th 802, 811 (Orozco).) This rule protects the privilege
against self-incrimination guaranteed by the Fifth Amendment.
(Orozco, at p. 811.) In addition, once a suspect invokes the right
to counsel, he cannot be subjected to further police interrogation
on any crime unless counsel is present or the suspect initiates
further communication with the police. (Edwards v. Arizona
(1981) 451 U.S. 477, 484-485 (Edwards).)
The Miranda rule has a limit, however—it only applies
when the suspect was the subject of a “custodial interrogation.”
(Miranda, supra, 384 U.S. at p. 444; see Orozco, supra, 32
Cal.App.5th at p. 811.) Miranda does not apply when a suspect is
unaware that he is speaking to a law enforcement officer and
gives a voluntary statement. (Perkins, supra, 496 U.S. at p. 294.)
Statements made to an undercover agent posing as a fellow
inmate accordingly are not subject to Miranda. (Perkins, at
p. 296; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 283
[no Miranda violation when defendant spoke to fellow inmate
wearing a recording device]; People v. Williams (1988) 44 Cal.3d
1127, 1141-1142 [Miranda “has never been applied to
conversations between an inmate and an undercover agent”].)
Gonzalez argues that the use of Perkins agents, following
the invocation of his right to counsel the preceding day, violated
7 Miranda requires that a suspect in law enforcement
custody must be advised of the right to remain silent, that
anything the suspect says may be used as evidence against him,
that he has the right to the presence of an attorney, and that an
attorney will be provided if the suspect cannot afford one.
(Miranda, supra, 384 U.S. at pp. 444-445, 473-474, 476.)
16
his constitutional rights to remain silent and to counsel.
Escalante concedes the record does not indicate that he invoked
his Miranda rights before the Perkins operation but nevertheless
asserts a Miranda claim.
Escalante’s claim is without merit. As our state high court
has noted, “the [United States Supreme Court] has held that at
least where no prior invocation [of Miranda rights] is in effect,
[‘][c]onversations between suspects and undercover agents do not
implicate the concerns underlying Miranda. The essential
ingredients of a “police-dominated atmosphere” and compulsion
are not present when an incarcerated person speaks freely to
someone whom he believes to be a fellow inmate.’” (People v.
Fayed (2020) 9 Cal.5th 147, 165, quoting Perkins, supra, 496 U.S.
at p. 296.)
Gonzalez’s prior invocation of his Miranda right to counsel
did not require suppression of his statements to the Perkins
agents. (Orozco, supra, 32 Cal.App.5th at p. 812.) “[A] suspect
who has invoked his Miranda right to counsel may not be
‘subject[ed] to further interrogation by the authorities’ on any
crime at all unless (1) counsel is present ‘at the time of [any
further] questioning,’ or (2) the suspect ‘himself initiates further
communication, exchanges or conversations with the police.’” (Id.
at p. 813, quoting Edwards, supra, 451 U.S. at pp. 484-485.)
“[T]here is no ‘interrogation’ when a suspect speaks with someone
he does not know is an agent of the police.” (Orozco, at p. 814.)
There is accordingly no reason to apply the restriction on further
“interrogation” in such circumstances. (Ibid.) Admission of
Gonzalez’s Perkins statements did not violate his rights under
Miranda.
17
B. Due process
Defendants contend admission of their statements to the
Perkins agents violated their due process rights because the
statements were not made voluntarily. The due process clauses
of the federal and California Constitutions bar the admission of
an involuntary confession. (People v. Rodriguez (2019) 40
Cal.App.5th 194, 199.) To determine the voluntariness of a
confession, we assess the circumstances to see if the defendant’s
will was overborne. (Ibid.) A confession may be involuntary “‘if
extracted by threats or violence, obtained by direct or implied
promises, or secured by the exertion of improper influence.’”
(People v. Wall (2017) 3 Cal.5th 1048, 1066.)
We independently review a trial court’s determination of
voluntariness given the circumstances, including the
characteristics of the accused and the details of the encounter.
(People v. Richardson (2008) 43 Cal.4th 959, 992-993, abrogated
on other grounds by statutory repeal as stated in People v. Nieves
(2021) 11 Cal.5th 404, 509.) In doing so, however, we defer to the
trial court’s factual findings if supported by substantial evidence.
(Ibid.) We therefore “accept the trial court’s resolution of
disputed facts and inferences as well as its evaluations of
credibility if substantially supported, but independently
determine from undisputed facts and facts found by the trial
court whether the challenged statement was legally obtained.”
(People v. Smith (2007) 40 Cal.4th 483, 502.)
Substantial evidence supports the trial court’s
determination defendants’ statements to the Perkins agents were
voluntary and that their claims of intimidation and coercion were
not credible. At the hearing on his motion to suppress, Gonzalez
admitted laughing with the Perkins agents and talking with
18
them about girls. Detectives came to Gonzalez’s cell several
times during the Perkins operation to ask Gonzalez if he was
alright, if he needed anything, and if his cellmates were treating
him all right. Gonzalez never indicated that there was any
problem or that he was afraid of the agents. Gonzalez testified
that the agents never identified themselves as members of the
Mexican Mafia and never threatened him verbally. He could not
recall any threatening gestures by the agents.
Escalante admitted initiating the conversation with the
Perkins agent and voluntarily disclosing that he had been
arrested for murder. He asked the Perkins agent for help in
remembering some numbers while making a phone call.
Escalante admitted that the agent never threatened him
verbally. He further admitted that he never told any of the
detectives who came to his cell during the Perkins operation that
he was afraid of or felt intimidated by the agent. The record does
not support Escalante’s claim that the agent questioned him
“aggressively,” seeking to elicit an admission that he and
Gonzalez had been looking for enemies on the day of the murder.
When the Perkins agent twice asked Escalante whether he and
Gonzalez had been looking for enemies on the day of the shooting,
Escalante replied, “Nah, we drove by and, like, they, they were,
like, banging on us, you know.”
Defendants’ jailhouse conversation with each other after
the Perkins operation further undermines the claim that they
were afraid of the agents. Defendants spoke positively about the
agents, and Escalante stated that the agent in his cell was “cool.”
The record does not support defendants’ claim that they
fabricated their involvement in the crimes. Their separate
statements to the Perkins agents contained corroborating details
19
about the crimes. Both defendants admitted that the shooting
occurred in May during the day, that they did not know the
victims, that Gonzalez was the shooter and Escalante was the
driver, and that Gonzalez thereafter sold the weapon.
Defendants made similar admissions in the conversation between
themselves after the Perkins operation.
Arizona v. Fulminante (1991) 499 U.S. 279, on which
defendants rely as support for the argument that their
statements were coerced, is distinguishable. The informant in
that case told the defendant that he knew the defendant was
“‘starting to get some tough treatment and whatnot’” from other
inmates because the defendant had killed a child. (Id. at p. 283.)
The informant then offered to protect the defendant, stating,
“‘“You have to tell me about it . . . [f]or me to give you any help.”’”
(Ibid.) The Supreme Court concluded that the “fear of physical
violence, absent protection from [the agent]” caused the
defendant’s will to be “overborne in such a way as to render his
confession the product of coercion.” (Id. at p. 288.) No such
circumstances are present here.
Moreover, as the trial court noted, both defendants, though
young, were experienced gang members. Gonzalez, who was 19
years old at the time of the Perkins operation, had been
“affiliated” with a gang from the age of 13 and started “banging”
when he was 16. Escalante was one month shy of his 19th
birthday at the time of the Perkins operation and had been a
gang member since he was 12 or 13 years old.
Cases defendants cite as support for their due process
claims are inapplicable or inapposite. Gonzalez relies on Justice
Brennan’s concurrence and Justice Marshall’s dissent in Perkins,
supra, 496 U.S. 292 and Justice Liu’s dissents from a denial of
20
review in People v. de Jesus Valencia (Aug. 5, 2019, B283588)
(nonpub. opn.), review denied Dec. 11, 2019, S258038, and People
v. Godbolt (Mar. 12, 2021, B302235) (nonpub. opn.), review
denied Jun. 30, 2021, S268148, as support for his argument that
use of undercover agents to elicit his statements following his
request for counsel violated due process.8 Concurring and
dissenting opinions are not binding precedent (see Rosato v.
Superior Court (1975) 51 Cal.App.3d 190, 211), and Gonzalez
cites no authority applying the views expressed in those
concurring and dissenting opinions. To the contrary,
“. . . California courts have uniformly come to the conclusion that
Perkins controls when a suspect invokes his Miranda right to
counsel but later speaks with someone he does not know is an
agent of the police.” (Orozco, supra, 32 Cal.App.5th at p. 815; see
People v. Plyler (1993) 18 Cal.App.4th 535, 544-545; People v.
Guilmette (1991) 1 Cal.App.4th 1534, 1540-1541.)
8 Justice Brennan expressed a belief that “the deception and
manipulation practiced on [Perkins] raise[d] a substantial claim
that the confession was obtained in violation of the Due Process
Clause.” (Perkins, supra, 496 U.S. at p. 301 (conc. opn. of
Brennan, J.).) Justice Marshall noted that “where the suspect is
incarcerated, the constant threat of physical danger peculiar to
the prison environment may make him demonstrate his
toughness to other inmates by recounting or inventing past
violent acts.” (Id. at p. 307 (dis. opn. of Marshall, J.).) In his
dissenting statement to the California Supreme Court’s denial of
a petition for review, Justice Liu stated “[I]t is difficult to see how
the use of deceptive schemes by the police to continue questioning
the suspect can be compatible with ‘“preserv[ing] the integrity of
accused’s choice to communicate with police only through
counsel.”’” (People v. de Jesus Valencia, supra, S258038, review
denied (dis. stmt. of Liu, J.).)
21
Escalante cites no authority to support his argument that
the tactics employed in this case—placing him with an older and
much larger agent posing as a gang “shot caller” who questioned
Escalante “aggressively”—exceeded the bounds of due process.
Miller v. Fenton (1985) 474 U.S. 104, cited by Escalante, did not
involve a Perkins operation but addressed whether the
voluntariness of a confession obtained during a police
interrogation was a factual or legal question for purposes of
appellate review. (Id. at pp. 105-106.) That case accordingly is
inapposite.
The totality of the circumstances leads us to conclude, as
the trial court did, that defendants’ statements to the Perkins
agents were voluntary and not the product of coercion or
psychological pressure.
C. Exclusion of defendants’ gang expert testimony
The trial court properly excluded proposed testimony by
defendants’ gang expert, Flores, as not relevant to determining
whether defendants’ Perkins statements were voluntary. The
trial court has broad discretion to determine the relevance of
evidence. (People v. Jones (2013) 57 Cal.4th 899, 914.) We will
not disturb the exercise of that discretion unless the trial court
acted in an arbitrary, capricious, or patently absurd manner.
(Ibid.)
The record discloses no abuse of discretion. In a
declaration attached to a motion to exclude Gonzalez’s Perkins
statements, gang expert Flores opined that the Perkins agents
used in this case “made their gang status and ties to the Mexican
Mafia to” Gonzalez and “command[ed] a presence of being very
knowledgeable of the gang dynamics and the jail politics.” Flores
further opined that defendants who encounter such agents
22
realize “they are being questioned by somebody who can impact
their jail experience” and that use of this tactic creates “an
environment of duress and pressure to either fabricate or
exaggerate their role in an alleged crime.” The trial court ruled
that Flores’s testimony was not relevant because only defendants
could testify as to the effect the Perkins agents had on them.
The trial court properly concluded that Flores’s testimony
was not relevant to determining whether Gonzalez or Escalante
felt pressured to fabricate their involvement in the crimes. An
expert may not testify regarding an individual’s subjective
knowledge or intent. (People v. Killebrew (2002) 103 Cal.App.4th
644, 647, disapproved on another ground in People v. Vang (2011)
52 Cal.4th 1038, 1049.) The trial court’s exclusion of Flores’
testimony was not an abuse of discretion.
II. Admission of defendants’ Perkins hearsay statements
against each other under Evidence Code section 1230
The trial court did not abuse its discretion by admitting
defendants’ Perkins statements implicating each other under the
hearsay exception provided in Evidence Code section 1230.
A. Proceedings below
At a hearing on a motion by Gonzalez to sever his case from
Escalante’s, the trial court and counsel for defendants discussed
whether Escalante’s statements to the Perkins agent were
admissible as declarations against penal interest. Gonzalez’s
counsel argued the statements were not against Escalante’s
interest because Escalante minimized his role and shifted the
blame for the shootings to Gonzalez. The trial court ruled the
statements were admissible, noting that while Escalante denied
being the shooter, “[h]e admitted to everything else . . . .”
23
At trial, Escalante objected on hearsay and due process
grounds to statements by Gonzalez that implicated Escalante.
Gonzalez also renewed his objection to statements made by
Escalante. The trial court overruled the objections.
B. Applicable law and standard of review
Evidence of a statement made other than by a witness
while testifying and “offered to prove the truth of the matter
stated” is inadmissible unless it comes within a hearsay
exception. (Evid. Code, § 1200.) The exception relevant here, set
forth in Evidence Code section 1230, provides that when the
“declarant is unavailable as a witness and the statement, when
made, . . . so far subjected him to the risk of . . . criminal
liability . . . that a reasonable man in his position would not have
made the statement unless he believed it were true.” (Evid.
Code, § 1230.)
“[A] person’s interest against being criminally implicated
gives reasonable assurance of the veracity of his statement made
against that interest.” (People v. Spriggs (1964) 60 Cal.2d 868,
874.) “‘In determining whether a statement is truly against
interest within the meaning of Evidence Code section 1230, and
hence is sufficiently trustworthy to be admissible, the court may
take into account not just the words but the circumstances under
which they were uttered, the possible motivation of the declarant,
and the declarant’s relationship to the defendant.’” (People v.
Grimes (2016) 1 Cal.5th 698, 711 (Grimes).) “There is no litmus
test for the determination of whether a statement is trustworthy
and falls within the declaration against interest exception.”
(People v. Greenberger (1997) 58 Cal.App.4th 298, 334
(Greenberger).) The trial court should “‘look to the totality of the
circumstances in which the statement was made, whether the
24
declarant spoke from personal knowledge, the possible
motivation of the declarant, what was actually said by the
declarant and anything else relevant to the inquiry.’” (People v.
Arauz (2012) 210 Cal.App.4th 1394, 1400 (Arauz).)
We review the trial court’s decision to admit evidence under
Evidence Code section 1230 for abuse of discretion. (Grimes,
supra, 1 Cal.5th at p. 711.) The decision “‘“‘will not be disturbed
except on a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in
a manifest miscarriage of justice.’”’” (People v. McCurdy (2014)
59 Cal.4th 1063, 1108.)
C. No abuse of discretion
The trial court did not abuse its discretion by admitting
defendants’ respective Perkins statements in their entirety. Our
Supreme Court has rejected “a rigid or hypertechnical . . . rule
that would in all cases require exclusion of even those portions of
a confession that are inextricably intertwined with the
declarant’s admission of criminal liability.” (Grimes, supra, 1
Cal.5th at p. 716.) The Supreme Court explained that “the
nature and purpose of the against-interest exception does not
require courts to sever and excise any and all portions of an
otherwise inculpatory statement that do not ‘further incriminate’
the declarant.” (Ibid.)
Gonzalez’s and Escalante’s respective statements
implicating each other in the crimes were inextricably entwined.
Escalante repeatedly stated that he drove and Gonzalez shot at
the victims. He told the Perkins agent: “I remember what
happened that day. We drove around. I was driving. He shot
again, this nigga. I’m not gonna go down for this nigga like that.”
Escalante reiterated, “He shot. I drove.” He later stated: “he
25
[(Gonzalez)] lit them up. And I remember I put the car in
neutral . . . . Then I put it in drive, and we took off.”
Escalante also indicated that he knew Gonzalez intended to
shoot the victims. Escalante told the Perkins agent that when
defendants initially encountered the victims, Gonzalez had been
driving and Escalante was the passenger. They switched places
before returning to the victims’ location “[b]ecause [Gonzalez]
wanted to bust, and I let him . . . . [¶] . . . [¶] . . . He’s like, ‘Let
me bust.’ So I was, like, all right . . . .’”
Escalante’s statements inculpating both himself and
Gonzalez in the driveby shootings, were not, as Gonzalez
contends, purely self-serving. Identifying Gonzalez as the
shooter and himself as the driver necessarily implicated
Escalante as an aider and abettor to murder. People v. Gallardo
(2017) 18 Cal.App.5th 51 (Gallardo), on which Gonzalez relies, is
distinguishable. The declarant in that case told informants that
he waited around the corner in a getaway vehicle while two other
codefendants shot the victims from a separate vehicle. (Id. at
p. 55.) The court in Gallardo concluded the declarant’s
statements, which provided conflicting versions of the crime,
were “too ‘“self-serving and unreliable”’” to qualify as declarations
against penal interest. (Id. at pp. 74-76.) Here, in contrast,
Escalante made no attempt to mitigate his role in the crimes. He
admitted knowing in advance that Gonzalez intended to shoot the
victims and further admitted to driving the vehicle from which
the shots were fired. Escalante’s admissions about his
involvement in the crimes were not conflicting. He consistently
said that he drove and that Gonzalez shot at the victims.
Gonzalez’s statements implicating Escalante as the driver
were similarly entwined with admissions that Gonzalez was the
26
shooter. Gonzalez identified Escalante as his crime partner.
When the Perkins agent asked “who was with you?” during the
shooting, Gonzalez responded, “My boy. [¶] . . . [¶] . . . The
homie’s that right here.” The following exchange then occurred:
“PA 2: Oh, the one you said, Rascal?
“RICARDO GONZALEZ: Yeah.
“PA 2: And he—what—what was he, he was
the shooter or the driver?
“RICARDO GONZALEZ: He was the
driver. . . . [¶] . . . [¶]
“PA 1: Oh, so he let you bust? . . .
“RICARDO GONZALEZ: Well, I told him,
‘Hey, fool, drive.’”
We are unpersuaded by Escalante’s argument that
Gonzalez’s Perkins statements should have been redacted to
exclude not only statements implicating Escalante but also those
portions purportedly irrelevant to the subject crimes, including
statements about a separate shooting in which Gonzalez was the
driver and Escalante was the passenger, and Gonzalez’s
statements about girls. Gonzalez’s conversation with the Perkins
agents, including those portions challenged by Escalante, were
relevant to defendants’ arguments that their admissions were
false or exaggerated because of the Perkins agents’ intimidation.
The transcript of Gonzalez’s conversation with the agents
indicates that the conversation was cordial, that Gonzalez
volunteered information to the agents, and that he often laughed
and joked with them. The nature and tone of Gonzalez’s
conversation with the agents are indicia of the reliability and
inherent trustworthiness of his statements. (See Idaho v. Wright
(1990) 497 U.S. 805, 822-823.)
27
D. No constitutional violation
Defendants’ due process challenge to the admission of their
statements, premised on their alleged unreliability, fails because
the statements qualify as declarations against penal interest.
Such statements “must be genuinely and specifically inculpatory
of the declarant; this provides the ‘particularized guarantee of
trustworthiness’ or ‘indicia of reliability’ that permits its
admission in evidence.” (Greenberger, supra, 58 Cal.App.4th at
p. 329.)
Admission of defendants’ Perkins statements implicating
each other did not violate their Sixth Amendment right to
confront witnesses. The confrontation clause is concerned solely
with hearsay statements that are testimonial. (Davis v.
Washington (2006) 547 U.S. 813, 823-825; People v. Cage (2007)
40 Cal.4th 965, 981.) To be testimonial, the statement must have
been given “under circumstances that imparted, to some degree,
the formality and solemnity characteristic of testimony” given by
witnesses at trial. (Cage, supra, at p. 984.) In addition, “the
statement must have been given and taken primarily for the
purpose ascribed to testimony—to establish or prove some past
fact for possible use in a criminal trial.” (Ibid.) “Although the
declarant and the interrogator’s perspectives are both relevant to
determining the ‘primary purpose’ of the statement [citation], it
is ‘“in the final analysis the declarant’s statements, not the
interrogator’s questions, that the Confrontation Clause requires
us to evaluate.” [Citation.]’ [Citation.] The Sixth Amendment
applies when the statement, rather than the question that
elicited it, was made ‘“with some degree of formality or
solemnity.”’” (Gallardo, supra, 18 Cal.App.5th at pp. 67-68.)
28
Applying these principles, California courts have held that
statements given under similar circumstances as those presented
here were nontestimonial, and therefore not subject to the Sixth
Amendment right to confront witnesses. (See, e.g., Gallardo,
supra, 18 Cal.App.5th at pp. 67-68; Arauz, supra, 210
Cal.App.4th at p. 1399.) The courts in these cases concluded the
defendants’ statements to informants were nontestimonial
because, regardless of the informant’s intent in asking the
questions, there was no evidence the defendants knew or
suspected that the informants were agents of the police, or that
their statements might be used at trial. (Gallardo, at pp. 67-68;
Arauz, at p. 1399.) California law on this issue is in accord with
federal court decisions that have found statements made to
informants under analogous circumstances to be nontestimonial.
(See U.S. v. Dale (8th Cir. 2010) 614 F.3d 942, 956; U.S. v.
Watson (7th Cir. 2008) 525 F.3d 583, 589; U.S. v. Udeozor (4th
Cir. 2008) 515 F.3d 260, 269-270; U.S. v. Underwood (11th Cir.
2006) 446 F.3d 1340, 1347-1348; U.S. v. Hendricks (3d Cir. 2005)
395 F.3d 173, 182-184; U.S. v. Saget (2d Cir. 2004) 377 F.3d 223,
229-230.)
Here there is no evidence that defendants knew they were
speaking to police informants, or otherwise anticipated their
statements would be used prosecutorially. Their statements
accordingly were nontestimonial, and do not implicate the Sixth
Amendment right to confrontation.
E. No prejudice
Finally, defendants fail to establish prejudice resulting
from any allegedly erroneous admission of their Perkins
statements. (See People v. Jennings (2010) 50 Cal.4th 616, 652
[alleged constitutional error under Crawford v. Washington
29
(2004) 541 U.S. 36 subject to harmless error standard].)
Defendants’ respective Perkins statements corroborated each
other in all material respects. (See Idaho v. Wright, supra, 497
U.S. at p. 823 [corroborating evidence appropriate indicator that
any error in admitting statement was harmless].) Both admitted
that Gonzalez was the shooter and Escalante was the driver.
Both stated that Gonzalez subsequently sold the gun he used in
the shooting.
Defendants’ Perkins statements were further corroborated
by their recorded conversation with each other when they were
subsequently placed in nearby cells. Escalante repeatedly
confirmed that he was the driver when the crimes were
committed. Gonzalez reiterated that he had changed the license
plates on the Honda Civic before the shooting and that he had
used a Smith and Wesson “Nina,” or nine-caliber firearm.
In light of the evidence, any error was harmless beyond a
reasonable doubt. (People v. Jennings, supra, 50 Cal.4th at
p. 652.)
III. Limiting discovery and testimony regarding the
Perkins operation
Defendants contend the trial court violated their
constitutional right to present a defense by precluding discovery
of the identity of the Perkins agents, restricting cross-
examination of witnesses regarding the Perkins agents, and
limiting the testimony of their gang expert. The record discloses
no abuse of discretion or constitutional violation. Defendants,
moreover, fail to establish prejudice resulting from any alleged
error.
30
A. Proceedings below
Gonzalez filed a motion pursuant to section 1054.1 seeking
discovery of all documents relating to the Perkins operation. At
the April 25, 2017 hearing on the motion, Judge Kim ruled that
defendants were not entitled to discover the identity of the
Perkins agents unless they could demonstrate the agents were
material witnesses. Judge Kim further ruled, however, that
defendants were entitled to know whether law enforcement
officers met with the Perkins agents, what information was
disclosed to the agents, and the manner in which the Perkins
operation was held.
Gonzalez’s counsel indicated on July 13, 2017, that he had
received a report regarding the Perkins operation, but the report
was insufficient. The trial court advised Gonzalez’s counsel that
he could file a motion attaching the report, and if cause was
shown, the court would issue a further order to produce.
Gonzalez filed a second discovery motion, which Escalante
joined, seeking any reports and notes prepared by the officers
who conducted the Perkins operation, all case names and
numbers of other Perkins operations conducted by the agents
used in defendants’ operation, whether the agents had been
involved in other operations in which there were allegations of
coercion, the identity of the officers who briefed the agents and
where the briefing occurred, and the identity of the officer who
controlled the audio recording device used during the Perkins
operation. The motion stated that Gonzalez’s counsel had
received a report prepared by Detective Lackovic and
summarized the following information from the report: The
Perkins operation was conducted under the direction of
Detectives Lackovic, Cortes, and Irving; the operation lasted for
31
approximately two and a half hours; the Perkins agents were
briefed on the pertinent facts of the case, including that the
murder involved a driveby shooting, Gonzalez’s known gang ties,
and the victims’ identities and known gang ties; the Perkins
agents were not told the caliber of the gun or the type of car used;
the entire operation was audio-recorded, and any breaks in the
recording were initiated by one of the officers after the Perkins
agents were removed from the cell; there was no recorded video
for the operation.
At the October 3, 2017 hearing on the motion, the
prosecutor represented that defense counsel had been provided
all reports regarding the Perkins operation. The trial court
directed the prosecutor to disclose additional information as to
who was present when the Perkins agents were briefed, where
the briefing took place, who controlled the recording device, and
whether detectives listened to the audio as it was being recorded.
The court otherwise denied the motion.
At trial, during cross-examination of Detective Irving, the
trial court sustained relevance objections to defense counsel’s
questions as to whether the larger Perkins agent had previously
been in custody, whether Detective Irving had used that agent
previously, whether the agents had been paid more than
$300,000 in the last four years, whether the agents were known
as “Puppet” and “Bouncer,” and whether they were former gang
members.
Also at trial, the prosecutor objected to possible testimony
by defendants’ gang expert Flores as to whether a gang member
would be afraid of another other gang member during a Perkins
operation, and, because of such fear, confess to a crime he did not
commit. The prosecutor argued that there was no evidence that
32
defendants had confessed because they were afraid of the Perkins
agents.
Escalante’s counsel argued that Flores was a gang expert
who could testify about perceived threats by a young person
placed in a jail setting with a much larger, heavily tattooed
inmate. Flores could also testify about a young gang member’s
mindset in trying to impress such an inmate.
The trial court ruled that Flores could not testify as to the
fear a person would feel in a jail cell with another gang member
“because that’s just common sense . . . . You can just argue it.”
The trial court noted that Flores was not an expert in psychology.
The court further ruled that Flores could not testify about
defendants’ positions in any gang hierarchy, because Flores had
not interviewed defendants. The court indicated that defense
counsel could have Flores opine based on hypothetical facts, “just
like a hypothetical was presented to the [prosecution’s] gang
expert.”
Based on the trial court’s ruling, defendants’ counsel
decided not to call Flores as a witness.
B. No abuse of discretion or constitutional
violation
Section 1054.1 requires the prosecution to disclose to the
defense certain categories of evidence in its possession, including
“[t]he names and addresses of persons the prosecutor intends to
call as witnesses at trial,” and “[a]ny exculpatory evidence.”
(§ 1054.1, subds. (a), (e).) An appellate court generally reviews a
trial court’s ruling on discovery matters for abuse of discretion.
(People v. Thompson (2016) 1 Cal.5th 1043, 1105.)
33
1. Identity of Perkins agents
The record discloses no abuse of discretion. The
prosecution did not intend to call the Perkins agents as witnesses
at trial, and defendants fail to establish that disclosing the
identity of the agents or the agents’ participation in other Perkins
operations would lead to any exculpatory evidence.
Defendants contend the trial court’s rulings impaired their
ability to challenge the reliability of their inculpatory statements
to the Perkins agents. Defendants claim they should have been
allowed to present to the jury the circumstances under which
defendants’ statements were made. According to defendants,
relevant circumstances include the larger agent’s exact height,
the agents’ nonverbal behaviors and demeanor, the agents’
understanding of their instructions for the operation, the layout
of the cells, and the agents’ proximity to defendants during the
operation.
The trial court’s rulings did not preclude defendants from
presenting the evidence they claim to have been denied.
Defendants had the opportunity to elicit testimony concerning
the Perkins operation by cross-examining Detective Irving, who
oversaw the operation and testified at trial. Irving testified on
cross-examination that he watched the entire Perkins operation
via a live video monitor. Defendants had the opportunity to
question Irving about the operation, including any instructions
given to the agents, the agents’ nonverbal behaviors and
demeanor, the cell layout, and the agents’ proximity to
defendants. The agents’ names, their participation in previous
Perkins operations, and whether they were former gang members
were not relevant to the circumstances in which defendants’
statements were made.
34
Defendants were not precluded from presenting evidence
concerning the larger agents’ height relative to that of
defendants. The jury heard through Detective Irving’s testimony
that the larger agent was approximately six feet tall and weighed
300 pounds. The jurors could also see defendants, who were
present in court.
Crane v. Kentucky (1986) 476 U.S. 683, on which
defendants rely, is distinguishable. In that case, which involved
a police interrogation, not a Perkins operation, the Supreme
Court held that the trial court erred in precluding the defendant
from eliciting testimony about the physical circumstances in
which his confession was obtained. (Id. at p. 691.) These
circumstances included the defendant’s detention in a windowless
room for a protracted period of time, surrounded by as many as
six police officers during the interrogation, and repeatedly being
denied permission to telephone his mother. (Id. at p. 685.) The
defendant’s resulting confession encompassed “a host of local
crimes,” including shooting a police officer, several robberies, and
murder committed during a robbery. (Id. at p. 684.) The
defendant’s confession was also full inconsistencies. (Id. at
p. 685.)
Defendants’ inculpatory statements in this case were not
obtained during a police interrogation. Defendants were not
precluded from presenting evidence of the physical circumstances
in which their statements were made. The evidence defendants
were precluded from presenting—the identity of the Perkins
agents—was not relevant to the claim that their statements were
coerced.
35
2. Limitation of expert testimony
The trial court did not abuse its discretion by limiting
proposed testimony by defendants’ gang expert, Flores. “‘A
witness is qualified to testify about a matter calling for an expert
opinion if his peculiar skill, training, or experience enable him to
form an opinion that will be useful to the jury.’ (People v. Davis
(1965) 62 Cal.2d 791, 800.) The question becomes whether the
expert opinion given was helpful to the trier of fact. The
reception of expert opinion testimony is within the sound
discretion of the trial court. (People v. Haeussler (1953) 41 Cal.2d
252, 261, overruled on other grounds in People v. Cahan (1955) 44
Cal.2d 434.) Even though facts may be within the knowledge or
understanding of the trier of fact, the conclusions to be drawn
therefrom may require expert testimony. (Wells Truckways v.
Cebrian (1954) 122 Cal.App.2d 666, 677; 1 Witkin, Cal. Evidence
(3d ed. 1986) The Opinion Rule, § 474, pp. 445-446.) ‘The decisive
consideration in determining the admissibility of expert opinion
evidence is whether the subject of inquiry is one of such common
knowledge that [persons] of ordinary education could reach a
conclusion as intelligently as the witness or whether, on the other
hand, the matter is sufficiently beyond common experience that
the opinion of an expert would assist the trier of fact.’ [Citation.]
An expert’s opinion is admissible when ‘[r]elated to a subject that
is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact.’ (Evid. Code, § 801, subd.
(a).)” (People v. Harvey (1991) 233 Cal.App.3d 1206, 1226-1227.)
The trial court’s ruling that a young gang member would be
intimidated or afraid when placed in a cell with another gang
member was a matter of “common experience,” obviating the need
for expert testimony and was not an abuse of discretion. (Ibid.)
36
Defendants’ comparison of Flores’s proposed testimony to
that of the prosecution’s gang expert, Detective Fuentes,
underscores the difference between matters of common
knowledge and those that are “sufficiently beyond common
experience that the opinion of an expert would assist the trier of
fact.” (Evid. Code, § 801, subd. (a).) Fuentes testified that a
Hispanic gang member in county jail would be expected to align
with “Southsiders.” If he instead aligned with the “paisas,” he
would be beaten. The dynamics of gang alignments and
affiliations is a matter sufficiently beyond common experience
that expert testimony would assist the jury. Fear of another
gang member in a cell, on the other hand, is not beyond the
common knowledge of the jury.
3. No prejudice
Defendants fail to establish prejudice resulting from the
alleged evidentiary errors. (People v. Bacon (2010) 50 Cal.4th
1082, 1104, fn. 4. [“[O]nly evidentiary error amounting to a
compete preclusion of a defense violates a defendant’s federal
constitutional right to present a defense”]; People v. McNeal
(2009) 46 Cal.4th 1183, 1203 [rejection of some evidence
concerning a defense reviewed for harmless error under People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson)].)
Defendants were not precluded from presenting evidence
concerning the gang dynamics in a jail setting. During cross-
examination of Detective Irving, defendants elicited testimony
that gang members do not want to be perceived as a “wimp” in
jail and that, the more serious their crime, the greater respect
they garner.
As discussed earlier, defendants’ inculpatory statements
corroborated each other. Both admitted Gonzalez was the
37
shooter and Escalante the driver. Defendants’ subsequent
conversation with each other corroborated their earlier individual
statements.
In light of the evidence as a whole, defendants fail to
establish that the trial court’s evidentiary rulings denied them
the ability to present a defense or constituted prejudicial error.
IV. Alleged judicial misconduct
Defendants’ claims that judicial misconduct undermined
the credibility of their eyewitness identification expert, and that
the trial court improperly presided over their motions for a new
trial fail because they demonstrate no prejudice as the result of
the alleged misconduct.
A. Proceedings below
Dr. Pezdek testified for the defense as an eyewitness
identification expert. During Pezdek’s testimony, the trial court
interrupted, stating, “No. No examples. You’ve answered the
question.” Later, after overruling an objection, the trial court
told Pezdek, “But let’s just give a short answer, please.” Pezdek’s
response to a previous question had been lengthy. After several
subsequent lengthy responses by Pezdek, the trial court, after
overruling an objection, stated, “But I would like answers that
are under five minutes, so let’s move it along, please.” Pezdek
continued to give lengthy responses. Overruling another
objection, the trial court told Pezdek, “You have one minute to
finish your answer.” Later, after Pezdek answered another
question, the trial court stated, “All right. I’ve heard it twice
now. Next question, please, and then we’re going to take a
break.”
During the break, defendants’ attorneys moved for a
mistrial. Gonzalez’s counsel stated, “The court’s demeanor
38
comments, rushing . . . the defense witness . . . I believe is really
exhibiting a sense of impatience and hostility towards the field of
eyewitness identification and this witness, and . . . I feel it’s being
conveyed to the jury.” The trial court denied the mistrial motion.
When Pezdek’s testimony resumed, Escalante’s counsel
asked about the correlation between a witness’s confidence and
accuracy. The trial court sustained an objection, stating, “I don’t
think that can be given.” Counsel then asked if there was some
correlation between memory and an expressed level of confidence.
Following another objection, the trial court said, “All right. One
moment. Don’t answer that. Excuse me for just a second.”
After a pause in the proceedings, the trial court returned to
the courtroom and apologized to the jury for the interruption.
Escalante’s counsel asked to rephrase the last question. The
court responded: “Well my concern here is that every situation is
different. I don’t think that there could be a correlation. Every
fact situation, every scenario is different, so—” The trial court
then addressed Pezdek: “All right. Are you done shaking your
head at me, madam witness?” Escalante’s counsel objected, and
the court responded:
“No. You will not object. She laughed at me
once, and now she’s shaking her head at me. I
deserve just as much respect as a doctor deserves, so
if you want to rephrase your question, you may
rephrase it, but I don’t deserve to be laughed at from
someone on the witness stand or have a head shaken
at.”
The following sidebar discussion then occurred:
“The court: Your witness laughed at me
earlier, before I got off the bench, which is one of the
reasons why I got off the bench because she was
laughing at me in my ruling. I don’t deserve that. [¶]
39
Just now, when I was making my ruling, I don’t
deserve her shaking her head at me. I’m sorry it
reflects badly on her, but too bad.
“[Counsel]: For the record, Your Honor, I was
looking at Dr. Pezdek. I didn’t see her laughing, nor
did I observe her shaking her head.”
Defendants made another motion for mistrial, which the
trial court denied, stating:
“I’m sorry, but your witness reflects on your
clients’ credibility and your case. If your witness is
not schooled enough not to laugh at the judge or to
not agree with one of my answers, that’s on you and
that’s on her. [¶] As a judge, I demand respect in my
courtroom. . . . [¶] I’m not going to sit here and be
offended by your witness in front of my jury. Now,
your witness has been testifying perfectly fine, but
for the fact that she repeats her answers three times,
and this court does have the right to limit testimony
and move things along. [¶] But I’m sorry, I’m not
granting a mistrial for something your witness did to
me.”
Pezdek resumed her testimony after the sidebar discussion.
After the noon recess, the trial court addressed the jury: “Ladies
and gentlemen, I’d like to just read to you a couple of things prior
to starting. I won’t deny this morning that I was suffering from a
minor health affliction. My patience may have been a tad short,
so I apologize for that.”
The court then instructed the jurors as follows: “Please do
not take anything I say or do during the trial as any indication of
what I think about the facts, the witnesses—I’ll also include the
attorneys—or what your verdict should be.”
The court then read CALCRIM No. 315, the jury
instruction on eyewitness identification.
40
After the verdicts but before sentencing, defendants filed a
motion for a new trial. Escalante also filed a challenge for cause
under Code of Civil Procedure section 170.1, seeking to recuse
Judge Meyer from hearing the motion. Judge Meyer ordered the
cause challenge stricken as untimely and facially insufficient.
The court also denied the new trial motion.
In its written order, the court stated:
“In this case, the Court has not expressed
favoritism for or antagonism against any of the
parties in this case; indeed, as Defendant notes, the
undersigned expressed regret regarding her short
patience during witness testimony and made jury
instructions to that effect. The undersigned believes
that she can preside over this case with impartiality,
and she has an ethical obligation to do so, because
there is no legal reason for her recusal.”
The court also stated under oath, “I am not prejudiced or
biased against or in favor of any party to this proceeding or their
counsel.”
B. No prejudice
A defendant seeking reversal due to alleged judicial
misconduct must establish prejudice. (People v. Abel (2012) 53
Cal.4th 891, 914.) Prejudice must be determined by considering
all the surrounding circumstances, not simply a determination
that “‘“‘the trial judge’s conduct left something to be desired, or
even [that] some comments would have been better left unsaid.
Rather, we must determine whether the judge’s behavior was so
prejudicial that it denied [the defendant] a fair, as opposed to a
perfect, trial.’”’” (People v. Seumanu (2015) 61 Cal.4th 1293, 1321
(Seumanu).) Prejudice is established only when it is reasonably
probable the jury would have reached a different verdict had the
court refrained from the challenged conduct. (People v. Harris
41
(2005) 37 Cal.4th 310, 350-351, citing Watson, supra, 46 Cal.2d at
p. 836.) We conclude from our review of the entire record that a
different verdict was not reasonably probable.
The trial court instructed the jury not to take its words or
actions as indicating its view of the facts, the witnesses, or the
attorneys. The court then read the jury instruction on eyewitness
identification. Jurors are presumed to understand and follow the
court’s instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
The crucial and overwhelming evidence against defendants
was their admissions during the Perkins operation and their
subsequent jail conversation between themselves. Based on our
review of the record, we conclude it is not reasonably probable
that the jury would have reached a different result had the trial
court not directed its comments toward Dr. Pezdek.
C. Denial of new trial motions
The trial court did not abuse its discretion in denying
defendants’ motions for a new trial, based on the alleged judicial
misconduct discussed above. A trial court is vested with
considerable discretion in ruling on a motion for mistrial, which
should be granted only if the trial court finds that the defendant’s
chances of receiving a fair trial have been irreparably damaged.
(People v. Dement (2011) 53 Cal.4th 1, 39, disapproved on another
ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216.) As we
have already rejected defendants’ claim of judicial misconduct
and have found no prejudice, we also find no abuse of discretion.
D. Challenge for cause
Denial of a challenge for cause under Code of Civil
Procedure section 170.1 is reviewable only by writ of mandate.
(Code Civ. Proc., § 170.3, subd. (d); People v. Freeman (2010) 47
Cal.4th 993, 1000.) Defendants did not seek a writ of mandate
42
and therefore forfeited any statutory claim of error. (Freeman, at
p. 1000.) Their basis for seeking appellate review of the recusal
motion is the purported denial of the due process right to a fair
trial. (People v. Peoples (2016) 62 Cal.4th 718, 787 (Peoples)
[appellate court may review order denying motion to disqualify to
the extent it concerns constitutional rights to due process].)
“‘[T]he [federal] due process clause operates more narrowly’
than Code of Civil Procedure section 170.1, subdivision
(a)(6)(A)(iii) and justifies judicial disqualification only under the
‘“most ‘extreme facts.’”’ [Citations.] To establish a federal due
process violation, ‘“there must exist ‘“the probability of actual
bias on the part of the judge.”’”’” (Peoples, supra, 62 Cal.4th at
p. 787.)
The record here discloses no extreme facts or probability of
actual bias on the part of Judge Meyer. Judge Meyer
acknowledged that she had been short on patience and apologized
to the jury. She instructed the jury not to take her statements or
conduct as an indication of the court’s views about the facts, the
witnesses, or the attorneys. At the hearing on the new trial
motions, Judge Meyer acknowledged that her “testy” behavior
may not have been appropriate but stated her belief that the
instructions to the jury had rectified any error. Finally, Judge
Meyer submitted a statement under oath that she was not biased
for or against any party. We find no due process violation under
these circumstances.
V. Trial court’s statements during jury selection
A. Forfeiture
Defendants arguably forfeited their right to challenge the
trial court’s statements during jury selection by failing to object.
(Seumanu, supra, 61 Cal.4th at p. 1357 [challenge to trial court’s
43
comments during voir dire is claimed judicial error, not
instructional error, forfeited by failure to timely object].)
Defendants contend, however, the trial court’s comments
concerning reasonable doubt, the presumption of innocence, and
the right not to testify misinstructed the jury and can be
challenged under section 1259. That statute allows an appellate
court, absent an objection in the trial court, to “review any
instruction given, refused or modified, even though no objection
was made thereto in the lower court, if the substantial rights of
the defendant were affected thereby.” (§ 1259; see People v.
Brown (2003) 31 Cal.4th 518, 539, fn. 7.) We exercise our
discretion under section 1259 to address defendants’ arguments.
B. Proceedings below
On May 7, 2018, at the beginning of jury selection, the trial
court discussed with prospective jurors a criminal defendant’s
right to a trial, the presumption of innocence, and the right
against self-incrimination. The court told the first panel of
prospective jurors that the presumption of innocence “basically
means . . . a person is absolutely presumed innocent up to and
until 12 jurors unanimously decide differently that that person is
guilty.” The court then proceeded to explain what that concept
meant in the prospective jurors’ “everyday lives.”
To illustrate the presumption, the trial court told a story
about a dog that fell out of a friend’s car window onto the
freeway. After the friend pulled over to the freeway shoulder, a
CHP officer pulled up behind him. The court then addressed the
prospective jurors as follows:
“Now, if you had been driving down that
freeway at the time that you saw my friend’s car on
the side of the freeway, and then you saw a CHP
officer on the side of the freeway with lights and
44
sirens on the side, come on, what’s the first thing
you’re going to think, ‘Oh, I bet he was speeding.’
‘Oh, I bet he was in the carpool lane alone.’”
The trial court continued:
“We think the worst, don’t we? We think,
‘What did that person do?’ We’re already making
presumptions that person did something, and
usually, something bad. [¶] Well, that’s not giving
my friend the presumption of innocence at all, is it?
No.”
The trial court then modified its example as a preface to its
explanation of the right not to testify:
“So let’s just say, for argument’s sake, my
friend on the side of the road was charged with some
kind of a charge . . . and he exercises his right to a
trial. [¶] . . . So the evidence shows, throughout the
trial, that . . . a dog had . . . fallen out of the car, and
maybe the charge is animal cruelty.
“But the dog fell out of the car. Even witnesses
testify, you know, it was an accident or it looked like
an accident. . . . [¶] At the end of the prosecution’s
case-in-chief, they say, ‘Thank you, Your Honor. We
have no more witnesses. We rest.’ And you could be
thinking . . . to yourselves, at that point: ‘All right.
There’s no case here. I don’t feel like the
presumption of evidence has been eroded away—and
certainly not to the level of proof beyond a reasonable
doubt.’
“And by the way, the definition of ‘proof beyond
a reasonable doubt’ is sort of that state of the
evidence that leaves you with an abiding conviction of
the truth of that charge. The only other definition
that I allow in court is the idea that it’s a lasting
45
belief in the truth of that charge. . . . [¶] . . . So let’s
just say that’s the state of the evidence.
“Well, if the presumption of innocence is not
gone, it has not been overcome by this very heavy
burden called ‘proof beyond a reasonable doubt,’ then
why on earth should the defendant have to testify to
anything? It’s almost as if they’ve already testified,
and they sat up here, and they said, ‘I’m innocent,’
and then got right back down.
“So the law is sort of already presuming you’ve
heard the other side of the story, which is the
presumption. Now, the presumption can be
overcome, so please don’t get me wrong. I don’t mean
to diminish the prosecution at all. . . . [I]t can be
overcome.
“But the whole point is: if it hasn’t been
overcome, then we don’t make a defendant actually,
physically take a witness stand to have to say, ‘I’m
innocent,’ and then get back down. The law
essentially does it for you.”
The trial court added:
“So sometimes in criminal trials . . . I hear
jurors say, ‘Well, I can’t vote because I will not
necessarily have heard from the defendants.’ . . . [¶]
[I]f they choose not to testify—sometimes I get people
who feel like, ‘Well, I haven’t heard both sides, so I
can’t make a decision if I haven’t heard both sides.’
But the fact is you have. You have heard both sides.
The law has given you the other side. And so in that
respect, we don’t force a person to testify against
themselves, and that’s part of the reason why we
have that particular r[u]le.”
The trial court told the second panel of prospective jurors a
story about her father-in-law, who had Alzheimer’s, to illustrate
46
the presumption of innocence. The court then explained the right
against self-incrimination and the presumption of innocence:
“Let’s just say, for argument’s sake, [the
prosecutor] puts on his case. . . . [W]e have a couple
of weeks’ worth of evidence, and then he says, ‘I’m all
done, Your Honor. I rest,’ and I say, ‘Okay.’
“Now, although you’re not deliberating yet as a
solid jury, you are, individually, maybe thinking to
yourselves, and you’re allowed to ponder
individually—‘. . .where was the crime? I don’t know
that one of these two people did this. I’m still at a
loss here.
“Let’s just say that’s the state of the evidence,
and that’s what the defense feels the state of the
evidence is, as well. So if the state of the evidence is
that the presumption of innocence has not been
overcome, then why on earth do you need to hear
from any of the defendants in a trial because that
presumption has not been overcome?
“It would be as if it was no different than one of
them takes the stand, and says, ‘I’m innocent,’ and
then he goes and sits down again. The law is already
sort of giving you a little bit of what, theoretically,
testimony could be, so you are actually hearing both
sides. It’s just the law gives you the other side, and
the other side is the presumption. So we do not force
defendants to have to testify if they don’t want to.
[¶] . . . [¶]
“But the idea is if the case is not there, and the
defense feels that in that state of the evidence the
presumption has not been overcome, you should not
feel an abiding conviction of the truth of the charge at
that point in time, then why are we bothering to hear
from the defendants at all?
47
“In other words, they don’t have to prove their
innocence. They are already presumed innocent.”
The next day, the trial court told the combined panel of
prospective jurors about the reasonable doubt standard:
“The law does not require [the prosecutor] to
prove this case beyond any shadow of a doubt or
beyond all doubt. The law doesn’t require absolutes.
The law just requires reasonableness, so proof beyond
a reasonable doubt. It doesn’t even say ‘all
reasonable doubt.’ It just says ‘a reasonable doubt.’”
On May 14, 2018, the trial court preinstructed the
impaneled jurors. The court instructed the jury on the
presumption of evidence and the burden of proof in accordance
with CALCRIM No. 220:
“As we discussed during the voir dire, a
defendant in a criminal case is presumed to be
innocent, and this presumption requires that the
People prove the defendant guilty beyond a
reasonable doubt. [¶] Proof beyond a reasonable
doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need
not eliminate all possible doubt because everything in
life is open to some possible or imaginary doubt.”
On May 24, 2018, after the close of evidence, the trial court
instructed the jury pursuant to CALCRIM Nos. 220 and 355 on
the presumption of innocence, the burden of proof beyond a
reasonable doubt, and the right not to testify.
C. No reasonable likelihood the trial court
diminished the burden of proof
In assessing defendants’ argument that the trial court’s
comments diminished the prosecution’s burden of proof, the
relevant question is whether “‘there is a reasonable likelihood
48
that the jury understood the instructions [as a whole] to allow
conviction based on’ insufficient proof.” (People v. Daveggio &
Michaud (2018) 4 Cal.5th 790, 840 (Daveggio).)
1. Presumption of innocence and reasonable doubt
Defendants claim the trial court undermined the
presumption of innocence and the reasonable doubt standard by
suggesting the presumption could be “eroded away” or “overcome”
by proof beyond a reasonable doubt when the prosecution rested.
The presumption of innocence remains until a unanimous jury
verdict finds guilt proven beyond a reasonable doubt. (People v.
Cowan (2017) 8 Cal.App.5th 1152, 1159.) We find no reversible
error.
The trial court told the first panel of prospective jurors that
the presumption of innocence “basically means . . . a person is
absolutely presumed innocent up to and until 12 jurors
unanimously decide differently that that person is guilty.” The
court similarly told the second panel of prospective jurors the
“presumption lasts up to and until 12 jurors decide that that
presumption has been overcome.”
Defendants contend the trial court diminished the
reasonable doubt standard by stating: “The law doesn’t require
absolutes. The law just requires reasonableness, so proof beyond
a reasonable doubt. It doesn’t even say ‘all reasonable doubt.’ It
just says ‘a reasonable doubt.’” Defendants also take issue with
the trial court’s statements that a “blatant accusation” with “no
proof” and “no trial” is the antithesis of the presumption of
innocence; that the presumption of innocence is the equivalent of
the defendant taking the stand and saying, “I’m innocent”; and
the court’s request that jurors “give the presumption of innocence
49
until you have more information” as incorrect statements of the
law.
We reject defendants’ contentions that there is a reasonable
likelihood the jury misapplied the law because of the trial court’s
statements. The trial court’s statements during voir dire were
“merely a portion of the guidance provided to prospective jurors—
let alone seated jurors—and the balance of the court’s
instructions made clear that the People bore the burden of proof
beyond a reasonable doubt.” (People v. Potts (2019) 6 Cal.5th
1012, 1039.) The impaneled jurors were repeatedly instructed on
the principles of reasonable doubt and presumption of innocence
once the trial began. Considering the instructions given and the
evidence presented at trial, it is not reasonably probable that the
jury misapplied the law. (People v. Holt (1997) 15 Cal.4th 619,
662 [trial court’s description of the reasonable doubt standard did
not “create such an indelible impression on prospective jurors”
that they were unable to follow specific instructions given when
case was submitted to the jurors for decision].) “Indeed, even
instructions during trial that misdescribe the burden of proof
may, in light of other instructions, leave no reasonable likelihood
that the jury misunderstood the proof required.” (Daveggio,
supra, 4 Cal.5th at p. 842.)
Defendants next contend the trial court erred by suggesting
jurors could individually reach a conclusion about whether the
presumption of innocence had been overcome when the
prosecution rested, in violation of their duty not to form an
opinion about the case until deliberations. We find no error.
Defendants incorrectly equate thinking about the case with
jury deliberations. “A juror who holds a preliminary view that a
party’s case is weak does not violate the court’s instructions so
50
long as his or her mind remains open to a fair consideration of
the evidence, instructions, and shared opinions expressed during
deliberations.” (People v. Allen and Johnson (2011) 53 Cal.4th
60, 73.) As our Supreme Court stated in People v. Ledesma
(2006) 39 Cal.4th 641, 729, “it would be entirely unrealistic to
expect jurors not to think about the case during the trial and
when at home.” The high court in that case found no error in the
trial court’s comments when excusing the jury for the day that
they could continue to think about the case, but they could not
communicate their thoughts to anyone until they were together
again for deliberation. (Ibid.)
The trial court in this case preinstructed the impaneled
jurors to “keep an open mind throughout the trial” and
admonished, “[d]o not make up your mind about the verdict or
any issue until after you have discussed it with your fellow jurors
and only after deliberations.” We presume the jury followed the
court’s instructions. (People v. Washington (2017) 15 Cal.App.5th
19, 26 (Washington).)
2. Right not to testify
Defendants contend the trial court diminished the right not
to testify by suggesting a defendant need not testify if, at the
close of the prosecution’s case, guilt had not been proven beyond a
reasonable doubt. “By negative implication,” defendants argue,
the trial court suggested that “if the prosecution had provided
proof of guilt beyond a reasonable doubt when it rested, the
defendant would need to testify.”
“A defendant challenging an instruction as being subject to
erroneous interpretation by the jury must demonstrate a
reasonable likelihood that the jury understood the instruction in
51
the way asserted by the defendant.” (People v. Cross (2008) 45
Cal.4th 58, 67-68.) Defendants fail to do so.
The trial court discussed one scenario in which a defendant
may choose not to testify. The court was not obligated, as
defendants claim, to present other scenarios and other reasons
not to testify. The trial court’s comments, moreover, must be
considered in the context of the trial record as a whole to
determine whether there is a reasonable likelihood the jury
misapplied the court’s instructions. (See People v. Houston (2012)
54 Cal.4th 1186, 1229.) The court also told the prospective jurors
that under the Fifth Amendment, “we don’t make someone who is
accused of a crime have to testify against him or herself in a
trial.” The trial court told the second panel, “we do not force
defendants to have to testify if they don’t want to.” The court
also formally instructed the impaneled jurors on the right not to
testify pursuant to CALCRIM No. 355 before deliberations began.
As a general rule, courts presume that juries can and will
dutifully follow instructions they are given. (Washington, supra,
15 Cal.App.5th at p. 26; see Daveggio, supra, 4 Cal.5th at p. 842
[comments made during jury selection are less significant than
instructions at the close of evidence].) The record discloses no
reversible error.
VI. Alleged instructional and prosecutorial error
Defendants contend the trial court erred by instructing the
jury pursuant to CALCRIM No. 315 in effect at the time of the
trial, which contained a “misleading implication” that an
eyewitness who is more certain of his or her identification is more
likely to be accurate. Defendants further contend the prosecutor
exploited this misleading implication during cross-examination of
defendants’ eyewitness expert.
52
We find no judicial or prosecutorial error.
A. Proceedings below
During Dr. Pezdek’s testimony, the trial court instructed
the jury with the then operative version of CALCRIM No. 315,
which asked the jury to consider, among 14 other factors, “how
certain was the witness when he or she made an identification?”9
The prosecutor then cross-examined Dr. Pezdek:
“Q. [Y]ou indicated that percentage or
confidence is only relevant at the initial point of—
right after the crime occurred; is that accurate?
“A. No. . . . Whenever the first identification
occurs, the first time a witness is shown a
photographic lineup or a field show-up or whatever,
at that first opportunity to make an identification,
the expressed confidence of the witness is going to be
indicative of their likely accuracy.
“Q. Okay. And then if they come—I don’t
know, a month later—and they identify in court, and
they say, ‘I’m 100 percent confident,’ you’re saying
that that has no relevance—you shouldn’t even
9 The Judicial Council modified CALCRIM No. 315 in 2022.
The 2022 version states that a trial court should include the
“How certain was the witness” language in its instructions when
there is evidence a witness has expressed certainty about an
identification. (Bench Notes to CALCRIM No. 315 (2022 ed.).)
When the certainty language is included in the trial court’s
instructions, the court must also instruct the jury that “[a]
witness’s expression of certainty about an identification, whether
the identification was made before or at the trial, may not be a
reliable indicator of accuracy” and recite several factors the jury
may consider when evaluating the significance of the witness’s
certainty. (Ibid.)
53
consider the person saying, ‘I’m 100 percent
confident[?]’
“A. Should not even consider it . . . . If the
witness initially said, ‘I think that’s him, but I can’t
really tell,’ and then, in your hypothetical, a month
later, comes to court and looks at that same person,
well heavens, a lot of people would figure out, ‘Hey,
it’s the same person. It must be him. That’s him.
I’m 100 percent confident.’ So . . . it’s the bias of this
in-court identification that can be the total cause of
that high confidence.
“Q. [Y]ou’re familiar with CALCRIM 315;
correct?
“A. Yes.
“Q. And you’re aware that, in CALCRIM
315 . . . the law says that you can consider the
confidence of a witness’s identification of a defendant.
[I]t does say that; correct?
“A. Absolutely . . . . That’s what I’m just saying
right now. The CALCRIM instruction doesn’t say
how to consider the confidence, and that’s what I was
clarifying . . .—how it’s to be considered. [¶] But the
confidence expressed by . . . a witness who comes into
court and says, ‘That’s the person. I’m 100 percent
confident.’ If, in the previous four years, hasn’t ever
said that, . . . the confidence is not going to be a
useful indication of whether they’re really
recognizing the person or not.
“Q. Well, the CACRIM doesn’t say: ‘You can
only consider the first identification of the witness.’
“[Escalante’s counsel]: Objection;
argumentative, Your Honor—
“The court: Overruled.
54
“[Escalante’s counsel]: —Also, calls for a
conclusion.
“The court: . . . Actually, I just read, ladies and
gentlemen, that exact CALCRIM to you. That’s the
same item we were reading. So it says what I said it
says. Go from there sir.”
The prosecutor had no further questions. The trial court
also gave the then current version of CALCRIM No. 315, which
included the certainty factor language, in its final jury
instructions.
B. People v. Lemcke
In People v. Lemcke (2021) 11 Cal.5th 644, 647, 665
(Lemcke), the California Supreme Court acknowledged that
“[c]ontrary to widespread lay belief, there is now near unanimity
in the empirical research that ‘eyewitness confidence is generally
an unreliable indicator of accuracy’” and that “‘jurors . . . tend to
overvalue the effect of . . . certainty . . . in determining the
accuracy of eyewitness identifications.’” The high court noted
that the then current version of CALCRIM No. 315 did not
correct the common misconception that a witness’s high degree of
certainty in an identification correlates to accuracy. (Id. at
pp. 647, 666.) Rather, by “merely directing the jury to consider a
witness’s level of certainty, without any further caveats, [the
instruction] effectively operates to reinforce that misconception.”
(Id. at p. 666.)
The Supreme Court also warned that “[t]he risk of juror
confusion is heightened by the structure of CALCRIM No. 315,
which lists witness certainty among numerous other factors the
jury should consider when assessing the eyewitness testimony.
As written, the instruction implies that each of these factors have
a direct, linear bearing on accuracy. For instance, ‘How well
55
could the witness see the perpetrator’ implicitly prompts the jury
to believe that if the witness could see the perpetrator well, the
identification should be given more weight, and vice versa; ‘How
closely was the witness paying attention,’ ‘Was the witness under
stress when he or she made the observation,’ ‘Did the witness
ever fail to identify the defendants,’ all do the same. Hearing the
certainty instruction in this context increases the risk that the
jury will infer certainty operates the same way—as having some
direct relationship with the accuracy of the identification.”
(Lemcke, supra, 11 Cal.5th at p. 666.)
Despite the risks of allowing a jury to consider the level of
an eyewitness’s confidence to determine the accuracy of an
identification, the court in Lemcke noted that inclusion of the
certainty factor in CALCRIM No. 315 does not, by itself, violate
due process. (Lemcke, supra, 11 Cal.5th at pp. 646-647, 661.) A
due process violation occurs only if the jury instruction—“‘“in the
context of the instructions as a whole and the trial record”’”—
renders the defendant’s trial fundamentally unfair, most often by
lowering the prosecution’s burden of proof. (Id. at pp. 647, 655,
661, quoting People v. Foster (2010) 50 Cal.4th 1301, 1335.)
The Lemcke court’s examination of the record before it also
revealed sufficient safeguards to prevent the jury from
improperly inferring that a witness’s certainty in making an
identification ensures its accuracy. The Supreme Court
concluded, “when considered ‘“in the context of the instructions as
a whole and the trial record”’ [citation], . . . listing the witness’s
level of certainty as one of 15 factors the jury should consider
when evaluating an eyewitness identification did not render
[defendant’s] trial fundamentally unfair or otherwise amount to a
due process violation.” (Lemcke, supra, 11 Cal.5th at p. 661.)
56
Despite the absence of a due process violation in the case
before it, the court in Lemcke nevertheless determined “there is a
risk that the [then] current version of [CALCRIM No. 315] will
prompt jurors to infer that an eyewitness’s certainty in an
identification is generally a reliable indicator of accuracy.”
(Lemcke, supra, 11 Cal.5th at p. 669.) To avoid that risk, the
Supreme Court exercised its supervisory powers to direct
California trial courts to omit the certainty factor language from
CALCRIM No. 315 until the language might be revised to
minimize possible juror misdirection. (Lemcke, at pp. 646-648,
669.)
C. No judicial or prosecutorial error
Defendants do not contend the trial court’s instruction
pursuant to CALCRIM No. 315 or the prosecution’s cross-
examination concerning that instruction deprived them of due
process. We reject defendants’ alternate claim of prejudicial
error.
In determining whether instructing the jurors on
identification certainty was reversible error, we must consider
the jury instructions as a whole. (Lemcke, supra, 11 Cal.5th at
p. 658.) The jury here was instructed that defendants were
presumed innocent and that the prosecutor had the burden of
proving each element of the offenses beyond a reasonable doubt.
The jury was also instructed that the prosecutor had the burden
of proving beyond a reasonable doubt that defendants committed
the crimes. The jury was further instructed it “alone must judge
the credibility or believability of the witnesses” and that “[p]eople
sometimes honestly . . . make mistakes about what they
remember.” In light of the instructions as a whole, we conclude
there was no reversible error. (Ibid.)
57
Even assuming any error by the trial court or the
prosecutor, we see no resulting prejudice. Lopez, Sr., the only
witness who identified Escalante as one of the perpetrators, did
not say he was certain about his identification. Defendants
presented testimony of Dr. Pezdek, an eyewitness identification
expert, “who explained the limited circumstances when certainty
and accuracy are positively correlated.” (Lemcke, supra, 11
Cal.5th at p. 647.) More importantly, the identification was not
the only—or even strongest—evidence connecting defendants to
the crimes. Defendants’ admissions to the Perkins agents and
during their jail conversation with each other were the most
compelling evidence of guilt. Given this evidence, it is not
reasonably probable defendants would have obtained a more
favorable result had the trial court omitted the certainty factor
language from CALCRIM No. 315 and had the prosecutor not
cross-examined Dr. Pezdek about that instruction. (People v.
Sanchez (2016) 63 Cal.4th 411, 463.)
VII. Gang sentencing enhancements
Effective January 1, 2022, the law affecting defendants’
sentences changed. Assembly Bill 333 amended the
requirements for proving the “pattern of criminal gang activity”
necessary to establish the existence of a criminal street gang.
(Assem. Bill 333, § 3; People v. Lopez (2021) 73 Cal.App.5th 327,
345 (Lopez).) As relevant here, Assembly Bill 333 amended
section 186.22, subdivision (e)(2) to preclude use of a currently
charged offense as a predicate offense to establish a “pattern of
criminal gang activity.”
Defendants contend, the Attorney General concedes, and
we agree that the amended statute applies here, as defendants’
judgments are not yet final on appeal. (People v. Delgado (2022)
58
74 Cal.App.5th 1067, 1087 [Assem. Bill 333 amendments to
§ 186.22 apply retroactively to defendant whose judgment was
not yet final]; Lopez, supra, 73 Cal.App.5th at p. 344 [same].)
A. Gang enhancement findings
The Attorney General also concedes that under Assembly
Bill 333, defendants’ current offenses cannot be used to establish
a pattern of criminal gang activity and that the prosecution
proved, at most, only one predicate offense, not two offenses as
required by section 186.22.10 The Attorney General agrees with
defendants that the gang enhancement findings (but not the
gang-murder special circumstance finding) must be vacated.
Defendants further contend their firearm enhancements
imposed pursuant to section 12022.53, subdivision (e)(1) on
counts 1, 2, and 4 must also be vacated because they are
premised on findings that a principal violated section 186.22,
subdivision (b).11 The Attorney General does not dispute this
contention.
10 The Attorney General concedes that the prosecution’s
evidence of the convictions of Jose Rangel, Enrique Hernandez,
and Jesus Hernandez for murder was evidence of a single
predicate offense.
11 Although the trial court struck these enhancements at
sentencing as to Escalante and stayed the enhancements as to
Gonzalez under section 654, even if the punishment for the
enhancement was stricken or stayed, the jury’s “enhancement
finding could impact defendant[s] in a future case: ‘Striking an
aspect of an enhancement does not “operate to defeat the a
factual finding of the truth of the [allegation], instead, such act
merely serves to prohibit a certain purpose for which the
[allegation] may be used.”’” (People v. Fuentes (2015) 1 Cal.5th
218, 225.)
59
We vacate the gang enhancement findings, including the
firearm enhancements imposed pursuant to section 12022.53,
subdivision (e)(1) on counts 1, 2, and 4, and remand the matter to
give the People the option of retrying those allegations under the
law as amended by Assembly Bill 333.12
B. Gang-murder special circumstance finding
Defendants contend the jury’s true finding regarding the
gang-murder special circumstance allegations (§ 190.2, subd.
(a)(22)) must also be vacated under the law as amended by
Assembly Bill 333. The Attorney General disagrees, arguing that
Assembly Bill 333’s amendment of the gang-murder special
circumstance is unconstitutional.13 Appellate courts are divided
on this issue. (Compare People v. Rojas (2022) 80 Cal.App.5th
542 (Rojas), review granted Oct. 19, 2022, S275835, with People
v. Lee (2022) 81 Cal.App.5th 232 (Lee), review granted Oct. 19,
2022, S275449.)
In Rojas, a divided panel in the Fifth Appellate District
held that Assembly Bill 333 is unconstitutional to the extent it
narrowed the scope of conduct made punishable under section
12 Because we conclude the gang enhancements were imposed
in violation of section 186.22, subdivision (e)(2), we do not
address defendants’ other arguments concerning proof of the
gang predicate offenses in connection with the gang allegations.
13 The Attorney General initially agreed with defendants that
the jury’s finding regarding the gang-murder special
circumstance must also be vacated under Assembly Bill 333.
However, in a subsequent supplemental brief, the Attorney
General changed its position and argued that Assembly Bill 333
unconstitutionally amended the gang-murder special
circumstance enacted by voters in Proposition 21 (as approved by
voters, Primary Elec. (Mar. 7, 2000)).
60
190.2, subdivision (a)(22). (Rojas, supra, 80 Cal.App.5th at
p. 555, review granted.) Section 190.2 sets forth a list of special
circumstances in which the punishment for first degree murder is
death or LWOP. (§ 190.2, subd. (a).) Proposition 21, enacted by
California voters in 2000, added a new special circumstance to
this list. (Voter Information Guide, Primary Elec. (Mar. 7, 2000)
text of Prop. 21, § 11, pp. 121-122.) That special circumstance
applies to murders where “[t]he defendant intentionally killed the
victim while the defendant was an active participant in a
criminal street gang, as defined in subdivision (f) of Section
186.22, and the murder was carried out to further the activities of
the criminal street gang.” (Ibid.; § 190.2, subd. (a)(22).)
Assembly Bill 333 amended the definition of a “criminal
street gang” in section 186.22, subdivision (f) by narrowing that
definition.14 (Rojas, supra, 80 Cal.App.5th at pp. 552-553, review
granted.) The Rojas majority concluded that the legislative
amendment was unconstitutional as applied because California
14 Assembly Bill 333 narrowed the definition of a criminal
street gang in section 186.22, subdivision (f) in several ways: (1)
It excludes from the definition of a criminal street gang those
associates or groups whose members have individually, but not
collectively, engaged in a pattern of criminal gang activity. (2) It
restricts the definition of a “pattern of criminal activity” by
requiring that prior offenses must have commonly benefitted a
gang, and the benefit must be more than reputational. It also
requires that the last of the offenses used to establish a pattern of
criminal gang activity must have occurred within three years
before commission of the current offense. (3) It excludes from the
definition of a criminal street gang groups or associations whose
primary activities include looting or felony vandalism, but does
not include the crimes listed in section 186.22, subdivision (e).
(Rojas, supra, 80 Cal.App.5th at pp. 552-553, review granted.)
61
voters had restricted the Legislature’s ability to amend the
provisions of Proposition 21 by stating it could only do so with a
two-thirds vote in each house or by a statute that becomes
effective only when approved by the voters. (Rojas, supra, at
p. 553; Voter Information Guide, Primary Elec., supra, text of
Prop. 21, § 39, p. 131.) Because Assembly Bill 333 did not comply
with that requirement, and effectively narrowed the scope of
section 190.2, subdivision (a)(22), the Rojas majority held the
amendment unconstitutional as applied. (Rojas, at pp. 557-558.)
In Lee, Division Four of this appellate district reached the
opposite result. The court in Lee rejected the argument that
Assembly Bill 333 impermissibly narrowed the scope of section
190.2, subdivision (a)(22) by amending the definition of a
“criminal street gang” in section 186.22. (Lee, supra, 81
Cal.App.5th at p. 241, review granted.) Focusing on the voter’s
intent as expressed in the language of Proposition 21, the court in
Lee found no indication that voters intended to prohibit any
future amendment of section 186.22, subdivision (f) from being
incorporated into the gang-murder special circumstance. (Lee, at
pp. 241-242.) The court noted that in enacting Proposition 21,
voters “clearly knew how to express the intent to freeze a
statutory definition” by changing the “‘“lock-in”’” date for
determining the existence of qualifying offenses under the “Three
Strikes” law. (Lee, at p. 243.) “Proposition 21 provided that ‘for
all offenses committed on or after the effective date of this act, all
references to existing statutes in [§§ 667, subds. (c)-(g), 1170.125]
are to those statutes as they existed on the effective date of this
act, including amendments made to those statutes by this act.’”
(Ibid.) Given these express time-specific references, the court in
Lee concluded that “had the voters also intended section 11 of
62
Proposition 21 to make a time-specific incorporation of section
186.22, subdivision (f), they would ‘have said so in readily
understood terms.’” (Ibid.)
We find the court’s reasoning in Lee to be persuasive and
apply it here. Assembly Bill 333 is not unconstitutional as
applied to the gang-murder special circumstance. The jury’s true
finding regarding the gang-murder special circumstance
allegations under section 190.2, subdivision (a)(22) need not be
vacated for that reason.
C. Proof of gang predicate offenses
Because we conclude Assembly Bill 333 did not
unconstitutionally amend section 186.22, subdivision (f) as
applied to the gang-murder special circumstance, we address
defendants’ argument that the gang-murder special circumstance
finding15 must be reversed because the prosecution’s proof of the
“pattern of criminal gang activity” element of that enhancement
constituted inadmissible hearsay and violated their Sixth
Amendment right to confront and cross-examine witnesses.
Defendants further contend the documentary evidence used to
establish the date of the predicate offenses was inadmissible
hearsay and violated their Sixth Amendment right of
confrontation. Alternatively, defendants argue their trial counsel
was ineffective for failing to object to admission of that evidence.
15 Defendants make the same argument to vacate the jury’s
gang enhancement findings. We do not address this challenge to
the gang enhancement findings because, as discussed in part
VII.A., we conclude the gang enhancements were imposed in
violation of section 186.22, subdivision (e)(2) and vacate the jury’s
findings as to those enhancements on that ground.
63
Defendants forfeited their argument concerning the
documentary evidence used to establish the date of the predicate
offense by failing to object to that evidence at trial. The record
discloses no abuse of discretion in the admission of the
prosecution’s gang expert testimony, no violation of defendants’
right of confrontation, and no ineffective assistance by
defendants’ trial counsel.
1. Proceedings below
During the testimony of Detective Fuentes, the
prosecution’s gang expert, the prosecutor offered three certified
court documents to establish the gang predicate offense. Those
documents indicate that on August 15, 2014, in Los Angeles
Superior Court case No. TA127879, Jose Rangel, Enrique
Hernandez, and Jesus Hernandez were convicted of the murder
of Jonathan Sandoval and that the crime was committed on
April 12, 2013. The jury in that case found true the allegation
that Rangel personally discharged a firearm causing death. As to
Enrique and Jesus,16 the jury found true the allegation that a
principal discharged a firearm. As to all three defendants, the
jury found true the allegation that the offense was committed for
the benefit of a criminal street gang. The certified court
documents were admitted into evidence without objection.
Fuentes testified on direct examination that he was
familiar with Rangel, Enrique, and Jesus. He explained that
when he began training with the sheriff department’s gang unit,
“this was a case that was brought to my attention.” Fuentes
opined that Rangel was a gang member at the time of his offense
16 Because they have the same surname, we refer to Enrique
Hernandez and Jesus Hernandez by their first names to avoid
confusion.
64
and that Rangel appeared to be a member of USV 13. Fuentes
based his opinion on tattoos on Rangel’s body. When the
prosecutor asked Fuentes if he observed USV tattoos on Rangel’s
body, Fuentes responded in the affirmative.
Fuentes further opined that Enrique was a USV gang
member, based on a large tattoo of the word “Compton” across
Enrique’s chest, his moniker, and his association with Rangel.
Fuentes also based his opinion on the fact that the murder
victim, Jonathan Sandoval, was a known member of the East
Side Paramount gang, USV’s biggest rival.
Fuentes opined that Jesus was also a USV gang member,
basing his opinion on a “Compton” tattoo on Jesus’s arm, Jesus’s
association with Rangel and Enrique, and the fact that the
murder victim was a rival gang member.
On cross-examination, Gonzalez’s counsel asked Fuentes
how he knew Rangel was a member of USV. Fuentes responded:
“When I first started my assignment at OSS, this was one of the
first cases that was brought to my attention, and it was discussed
amongst the investigators. I know of him. I’d never contacted
him personally.”
The following exchange ensued:
“Q. Okay. So you heard that he was a member
of the USV?
“A. I heard, and I saw documentation, yes, sir.
“Q. You saw documentation?
“A. Yes, sir.
“Q. Well, what documentation?
“A. I believe they were—they were either
booking slips or FIR cards that indicated his
tattoos . . . [¶] . . . [¶]
65
“Q. . . . You basically knew he was a USV gang
member because of what you had heard from other
officers; is that right?
“A. Yes, from known knowledge of other
investigators.
“Q. So it’s what other investigators had told
you?
“A. Yes.”
Gonzalez’s counsel then indicated he had a motion to make,
but asked if he should “hold that in abeyance.” The trial court
responded, “[h]old it for now.”
Gonzalez’s counsel next cross-examined Fuentes about
Enrique:
“Q. And did you know Enrique Hernandez,
personally?
“A. No, sir.
“Q. But you indicated that he was a member of
USV?
“A. A member or an associate.
“Q. . . . And is that also from what other
investigators had told you?
“A. Yes.
“Q. And is it the same thing for Jesus
Hernandez, who was convicted of the same murder in
2013?
“A. Yes, sir.
“Q. Same—same thing that you heard from
other investigators?
“A. Correct.”
66
Fuentes further testified on cross-examination that his
opinion that the victim, Sandoval, was a rival gang member was
based on what other investigators had told him.
Gonzalez’s counsel also asked Fuentes, “So the predicates
for Jose Rangel, he was convicted of—of murder on October 15th
of 2014; is that—is that correct?” Fuentes responded, “I believe
so. I can’t confirm that.”
On redirect examination, the following exchange between
the prosecutor and Fuentes occurred:
“Q. You indicated that part of the basis for
your opinion that [Rangel, Enrique, and Jesus are]
USV gang members at that time, was that you
observed booking photographs for each of these
individuals at the time of their arrest for the murder
charge; is that right?
“A. I believe I viewed those booking photos
when I began training at OSS. I don’t know if that
was around—I believe that was around the same
time they were convicted.
“Q. No. My question is: You’ve seen booking—
you’ve seen booking photos of those individuals that
were taken at the time of their arrest?
“A. Yes.
“Q. I believe that your testimony yesterday
was that part of the basis of your opinion was they
had tattoos that were consistent, in your opinion,
with USV; correct?
“A. In my opinion, yes, sir.
“Q. Okay. And that was part of the basis of
your opinion why they were USV gang members?
“A. Yes, sir.
67
“Q. And the fact that they were associating
together at that time of the crime?
“A. Correct.
“Q. And you indicated, also, that you had
learned that the victim of the—that incident was a—
of the murder was an East Side Paramount gang
member?
“A. Correct.
“Q. And you indicated that that was also the
basis of your opinion, given that East Side
Paramount is the main rival to the USV gang?
“A. It’s the main rival to the USV gang that
belongs to the Paramount clique; correct.”
On recross-examination, Gonzalez’s counsel asked Fuentes
about the booking photographs:
“Q. [Y]ou indicated that you saw these booking
photos with the tattoos of Mr. Rangel sometime in
2014; is that correct?
“A. When I began training in 2014, yes, that’s
around the time I saw those photos.
“Q. Okay. And you haven’t seen them since?
“A. I have—I believe I have, yeah. [¶] . . . [¶]
“Q. [W]hen have you?
“A. When I found out that I was coming to this
case.
“Q. [A]nd you took a look at those booking
photos?
“A. I viewed numerous photos of members from
USV 13. [¶] . . . [¶]
“Q. Okay. And you viewed this photo of Jose
Rangel?
68
“A. That was one of them, yes.”
During a subsequent sidebar conference, Gonzalez’s counsel
moved to strike Fuentes’s testimony about “what he’s heard from
other investigators.”
The trial court denied the motion, stating
“I was listening for this, specifically, on direct
because of Sanchez,[17] and I did hear how he thinks
that the three people in the predicates were gang
members was based on him looking at . . . gang
photos. [¶] That’s how he came to his own opinion,
and the photos, themselves, are not hearsay. So I’m
okay with him giving an opinion that they were gang
members based on those photos.
“Both of you, I believe, elicited from him . . .
that he also spoke to other officers. So you actually
elicited the hearsay under Sanchez. [¶] . . . [¶] [S]o
then to come back and say, ‘Well, I object to the
answers,’ I think that is inappropriate. [¶] And if
there was one answer in direct examination that
elicited hearsay, I think it’s too late. It should have
been asked . . . on direct.”
The trial court then instructed the jury as follows:
“Ladies and gentlemen, I’m going to caution—
that’s all—about when a witness testifies to
something they were told by someone else, one should
be cautious about that. I’m sure many people have
heard the concept of hearsay. [¶] However,
testimony in which someone may have personal
knowledge of things that were directly told to them
by, perhaps, a perpetrator or suspect or a gang
17 People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez).
69
member or directly viewed by them, that is less
cautious.”
2. Applicable law and standard of review
a. Proof of predicate offense
To establish that a group is a criminal street gang for
purposes of gang sentence enhancements, the prosecutor must
prove, among other things, that the group’s members engage in
or have engaged in a pattern of criminal gang activity. (People v.
Lara (2017) 9 Cal.App.5th 296, 326-327.) At the time of trial in
this case, a pattern of criminal gang activity meant “‘the
commission of, attempted commission of, conspiracy to commit, or
solicitation of, sustained juvenile petition for, or conviction of two
or more of [enumerated] offenses, provided at least one of these
offenses occurred after the effective date of this chapter and the
last of those offenses occurred within three years after a prior
offense.’” (Lopez, supra, 73 Cal.App.5th at p. 345, quoting former
§ 186.22, subd. (e).) “Taken together the statutory scheme
requires proof that gang members committed at least two
predicate offenses within the statutory timeframe. Such proof
will generally require evidence of who committed the crime and
when they did so, as well as evidence of their gang membership
and the nature of the crimes.” (People v. Valencia (2021) 11
Cal.5th 818, 829-830.)
To prove that a particular gang meets the statutory
requirements, the prosecution usually presents a gang expert to
describe the name or “‘identifying sign[s] or symbol[s]’” of the
promoted gang; the gang’s “‘primary activities’”; and at least two
offenses committed by the defendant or his fellow gang members
to show the gang had engaged in a “‘pattern of criminal gang
activity.’” (People v. Prunty (2015) 62 Cal.4th 59, 75-85.)
70
b. Experts, hearsay, and Sanchez
Hearsay generally is inadmissible, unless it falls under an
exception. (Evid. Code, § 1200, subds. (a), (b); Sanchez, supra, 63
Cal.4th at p. 676.) Although expert witnesses frequently acquire
knowledge in their field of expertise from hearsay sources, “[t]he
hearsay rule has traditionally not barred an expert’s testimony
regarding his general knowledge in his field of expertise.”
(Sanchez, at p. 676.)
In Sanchez, our Supreme Court explained that “[w]hen any
expert relates to the jury case-specific out-of-court statements,
and treats the content of those statements as true and accurate
to support the expert’s opinion, the statements are hearsay.”
(Sanchez, supra, 63 Cal.4th at p. 686.) The high court defined
“[c]ase-specific facts” as “those relating to the particular events
and participants alleged to have been involved in the case being
tried.” (Id. at p. 676.) The court in Sanchez held that an expert’s
recitation of case-specific facts is prohibited if the facts are
outside the expert’s personal knowledge, do not fall under an
exception to the hearsay rule, or have not been independently
established by competent evidence. (Id. at pp. 676-677, 686.) The
court in Sanchez preserved, however, an expert’s ability to rely on
and cite background information “regarding his knowledge and
expertise and premises generally accepted in his field” and to
“tell the jury in general terms” “the kind and source of the
‘matter’ upon which his opinion rests.” (Id. at pp. 685-686.) To
illustrate the distinction between general background
information and case-specific facts, the court in Sanchez provided
the following example in a gang-related context: “That an
associate of the defendant had a diamond tattooed on his arm
would be a case-specific fact that could be established by a
71
witness who saw the tattoo, or by an authenticated photograph.
That the diamond is a symbol adopted by a given street gang
would be background information about which a gang expert
could testify. The expert could also be allowed to give an opinion
that the presence of a diamond tattoo shows the person belongs to
the gang.” (Id. at p. 677.)
c. Confrontation clause and Crawford
In Crawford, the United States Supreme Court held that
the admission of “testimonial” hearsay against a criminal
defendant violates the Sixth Amendment right to confront and
cross-examine witnesses. (Crawford v. Washington, supra, 541
U.S. at pp. 53-54.) In light of Crawford, the California Supreme
Court in Sanchez held that an additional step of analysis is
required in criminal cases to determine if an expert’s statements
qualify as “testimonial hearsay.” (Sanchez, supra, 63 Cal.4th at
p. 686.) After reviewing the relevant case law, the Sanchez court
concluded hearsay statements are testimonial if they are made
“primarily to memorialize facts relating to past criminal activity,
which could be used like trial testimony. Nontestimonial
statements are those whose primary purpose is to deal with an
ongoing emergency or some other purpose unrelated to
preserving facts for later use at trial.” (Id. at p. 689.)
Conviction records are not barred by the Sixth Amendment.
(U.S. v. Weiland (9th Cir. 2005) 420 F.3d 1062, 1076-1077; People
v. Morris (2008) 166 Cal.App.4th 363, 370-373.) “Conviction
records in general are not testimonial in nature because they are
‘prepared to provide a chronicle of some act or event relating to
the public employee’s duty’ and are not ‘produced to be used in a
potential criminal trial or to determine whether criminal charges
should issue.’” (People v. Thompkins (2020) 50 Cal.App.5th 365,
72
412, quoting People v. Taulton (2005) 129 Cal.App.4th 1218,
1225.)
Under state law, conviction records also fall within a
hearsay exception allowing “admission of qualifying court records
to prove not only the fact of conviction, but also that the offense
reflected in the record occurred.” (People v. Duran (2002) 97
Cal.App.4th 1448, 1460-1461; see Evid. Code, §§ 452.5, subd.
(b)(1) [court record is admissible “to prove the commission . . . of a
criminal offense [or] prior conviction”], 1280 [hearsay exception
for records made by public employees as part of their duties].)
d. Standard of review
We review the trial court’s evidentiary rulings, including
those concerning the hearsay nature of the evidence, for abuse of
discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230.) An
abuse of discretion occurs when the trial court makes an error of
law. (People v. Patterson (2017) 2 Cal.5th 885, 894; see People v.
Rowland (1992) 4 Cal.4th 238, 266.)
If error is found, any violation of state evidentiary rules is
reviewed for prejudice under the Watson standard. (Sanchez,
supra, 63 Cal.4th at pp. 685, 698; People v. Fudge (1994) 7
Cal.4th 1075, 1102-1103; Watson, supra, 46 Cal.2d at p. 836.) A
violation of the Sixth Amendment right of confrontation is
reviewed for harmless error under the Chapman standard.
(People v. Amezcua and Flores (2019) 6 Cal.5th 886, 912; see
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman) [“before
a federal constitutional error can be held harmless, the court
must be able to declare a belief that it was harmless beyond a
reasonable doubt”].)
73
3. Forfeiture
Defendants forfeited any claim that the records of
conviction for Rangel, Enrique, and Jesus were not admissible to
prove the date the predicate offense was committed by failing to
object to the admission of those documents. (See Seumanu,
supra, 61 Cal.4th at p. 1362.) Defendants also forfeited their
claim that admission of the records of conviction to establish the
date of the predicate offense violated their Sixth Amendment
right of confrontation by failing to raise any objection on that
ground in the trial court below. (People v. Demetrulias (2006) 39
Cal.4th 1, 20.)
Defendants’ alternative argument that their respective
trial attorneys were ineffective for failing to object to admission of
the records of conviction is unavailing. “It is particularly difficult
to prevail on an appellate claim of ineffective assistance. On
direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel
had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation. All
other claims of ineffective assistance are more appropriately
resolved in a habeas corpus proceeding.” (People v. Mai (2013) 57
Cal.4th 986, 1009.)
Defendants fail to sustain their burden of demonstrating
that counsel was ineffective for failing to object to admission of
the records of conviction for the purpose of establishing the date
of the predicate offense. As discussed, under California law,
conviction records fall within a hearsay exception allowing
admission of such records to prove that the offense reflected in
the record occurred. (People v. Duran, supra, 97 Cal.App.4th at
74
pp. 1460-1461.) Conviction records are not barred by the Sixth
Amendment. (People v. Thompkins, supra, 50 Cal.App.5th at
p. 412.)
Defendants’ reliance on People v. Garcia (2020) 46
Cal.App.5th 123 as support for their position is unavailing. The
court in Garcia held that the prosecution may use records “to
show the fact of the prior conviction” (id. at p. 171); however, a
complaint from a prior case cannot serve as evidence proving the
date of commission of the predicate offense. (Id. at p. 172 [“the
only competent evidence proving the date of commission of [a]
predicate offense was a copy of the complaint”].) The prosecution
in this case introduced records created by a court employee.
(Evid. Code, §§ 452.5, 1280.) It did not rely on allegations in a
criminal complaint—created by the district attorney’s office for
use at a criminal proceeding—to prove the dates the crimes were
committed. (See Day v. Sharp (1975) 50 Cal.App.3d 904, 914
[court may not accept the truth of allegations in pleadings just
because they are part of a court file].) Garcia is therefore
inapposite. Trial counsel was not ineffective for failing to object
to admission of the certified court records of conviction.
4. No abuse of discretion and no prejudicial error
The trial court did not abuse its discretion by denying
defense counsel’s motion to strike Fuentes’s opinion that Rangel,
Enrique, and Jesus were USV gang members. The record shows
that Fuentes based his opinion in part on tattoos he observed on
Rangel, Enrique, and Jesus in booking photos taken at the time
of their arrest for the predicate offense; their association with
each other; and the fact that the victim was a known member of a
rival gang. These facts constituted general background
information within Fuentes’s knowledge in his field of expertise.
75
(Sanchez, supra, 63 Cal.4th at p. 676.) Fuentes’s opinion, based
on his review of the booking photographs, was admissible expert
testimony. (Id. at p. 677.)
Any error in denying defense counsel’s motion to strike
testimony he elicited from Fuentes that the gang expert’s opinion
was based in part on hearsay statements Fuentes heard from
other law enforcement officers was harmless under either
Watson, supra, 46 Cal.2d 818 or Chapman, supra, 386 U.S. 18.
Fuentes’s opinion that Rangel, Enrique, and Jesus were USV
gang members, based on tattoos he saw on those individuals in
their booking photographs, was admissible expert testimony.
(Sanchez, supra, 63 Cal.4th at p. 676.) After Fuentes’s testimony
concluded, the trial court gave the jury a cautionary instruction
concerning witness testimony based on hearsay statements. We
presume the jury followed this instruction. (People v. Chhoun
(2021) 11 Cal.5th 1, 28.)
VIII. Section 1109
Assembly Bill 333 also enacted section 1109, which took
effect on January 1, 2022. Section 1109 allows bifurcation of a
gang enhancement charge under section 186.22, subdivisions (b)
or (d) from the underlying offense. If requested by a defendant,
the statute requires the defendant’s guilt of the underlying
offense to be determined before the enhancement charges are
tried.18
18 Section 1109 provides:
“(a) If requested by the defense, a case in which
a gang enhancement is charged under subdivision (b)
or (d) of Section 186.22 shall be tried in separate
phases as follows:
76
We reject defendants’ contention that section 1109 applies
retroactively to afford them a new trial on their murder and
attempted murder convictions. There is no language in section
1109 declaring its provisions to be retroactive. “‘“No part of the
Penal Code ‘is retroactive, unless expressly so declared.’ (§ 3.)
‘[T]he language of section 3 erects a strong presumption of
prospective operation, codifying the principle that, “in the
absence of an express retroactivity provision, a statute will not be
applied retroactively unless it is very clear from extrinsic sources
that the [lawmakers] . . . must have intended a retroactive
application.” [Citations.] Accordingly, “‘a statute that is
“(1) The question of the defendant’s guilt of the
underlying offense shall be first determined.
“(2) If the defendant is found guilty of the
underlying offense and there is an allegation of an
enhancement under subdivision (b) or (d) of Section
186.22, there shall be further proceedings to the trier
of fact on the question of the truth of the
enhancement. Allegations that the underlying
offense was committed for the benefit of, at the
direction of, or in association with, a criminal street
gang and that the underlying offense was committed
with the specific intent to promote, further, or assist
in criminal conduct by gang members shall be proved
by direct or circumstantial evidence.
“(b) If a defendant is charged with a violation of
subdivision (a) of Section 186.22, this count shall be
tried separately from all other counts that do not
otherwise require gang evidence as an element of the
crime. This charge may be tried in the same
proceeding with an allegation of an enhancement
under subdivision (b) or (d) of Section 186.22.”
77
ambiguous with respect to retroactive application is construed . . .
to be unambiguously prospective.’”’”’” (People v. Perez (2022) 78
Cal.App.5th 192, 207 (Perez); accord, People v. Ramirez (2022) 79
Cal.App.5th 48, 65 (Ramirez).)
A “‘“limited rule of retroactivity”’” applies to newly enacted
criminal statutes that are intended to ameliorate criminal
punishment for certain crimes. (Perez, supra, 78 Cal.App.5th at
p. 207.) In In re Estrada (1965) 63 Cal.2d 740 (Estrada), the
California Supreme Court “held that amendatory statutes that
lessen the punishment for criminal conduct are ordinarily
intended to apply retroactively.” (People v. Frahs (2020) 9
Cal.5th 618, 627.) The Supreme Court has applied Estrada’s
limited rule of retroactivity to statutes governing penalty
enhancements, statutes governing substantive offenses, statutes
expanding a defense to a crime (Frahs, at pp. 628, 629), and
statutes making reduced punishment possible for a class of
persons (People v. Wright (2006) 40 Cal.4th 81, 95).
Section 1109 does not reduce punishment for a crime,
expand defenses to a crime, or make reduced punishment
possible. Notwithstanding that section 1109 does none of these
things, and the absence of express statutory language giving it
retroactive effect, some appellate courts, applying Estrada, have
held the statute applies retroactively. (See, e.g., People v.
Montano (2022) 80 Cal.App.5th 82; People v. Ramos (2022) 77
Cal.App.5th 1116 (Ramos); People v. Burgos (2022) 77
Cal.App.5th 550 (Burgos), review granted July 13, 2022,
S274743; People v. Rodriguez (2022) 75 Cal.App.5th 816.)
We disagree with these appellate courts’ expansive
application of Estrada’s “limited rule of retroactivity” to section
1109. Instead, we find the courts’ decisions to the contrary in
78
Ramirez, supra, 79 Cal.App.5th 48, Perez, supra, 78 Cal.App.5th
192, and Justice Elia’s dissent to the Burgos majority to be
persuasive. We adopt the analysis in Justice Elia’s dissent in
Burgos and the courts’ holdings in Perez and Ramirez. The
Estrada rule of limited retroactivity applies only when a new law
is ameliorative of criminal liability or punishment. Section 1109
has no such ameliorative effect. It therefore does not apply
retroactively.
IX. Defendants’ LWOP sentences do not violate equal
protection
We reject defendants’ argument that section 3051,
subdivision (h), which denies youth offender parole hearings to
18- to 25-year-olds sentenced to LWOP, violates equal protection.
We also reject Escalante’s claims that he was denied the
opportunity to make a Franklin presentation at sentencing or,
alternatively, that his counsel was ineffective for not making an
adequate presentation.
A. Section 3051
Section 3051 gives certain youth offenders the opportunity
for parole in their 15th, 20th, or 25th year of incarceration,
depending on the length of the sentence they are serving for their
“controlling offense.”19 (§ 3051, subds. (a)(2)(B), (b); see Franklin,
supra, 63 Cal.4th at p. 277.)
As originally enacted, section 3051 afforded a youth parole
eligibility hearing to juvenile offenders only, not to young adults.
(In re Trejo (2017) 10 Cal.App.5th 972, 981 & fn. 6.) The statute
also excluded juveniles sentenced to LWOP, who were already
19 “Controlling offense” is the offense or enhancement for
which the longest term of imprisonment was imposed. (§ 3051,
subd. (a)(2)(B).)
79
eligible for resentencing under section 1170. (People v. Acosta
(2021) 60 Cal.App.5th 769, 776 (Acosta).) In subsequent years,
the Legislature expanded eligibility for youth offender parole
hearings under section 3051, “‘recogniz[ing] that the maturity
process does not end at 18 and in many cases extends to at least
25 years of age.’” (Acosta, at p. 776.) The statutory amendments
recognized that young adults, like juveniles, are not yet fully
matured and have a lower degree of culpability and an increased
potential for rehabilitation compared to adult offenders. (In re
Jones (2019) 42 Cal.App.5th 477, 485.)
The Legislature also amended section 3051 to allow parole
eligibility hearings for juveniles—but not young adult offenders—
sentenced to LWOP. (§ 3051, subd. (b)(4); Stats. 2017, ch. 684,
§ 1.5.) The purpose of this amendment was to bring California
into compliance with federal law articulating the constitutional
limits on sentencing young offenders. (Sen. Com. on Public
Safety, Analysis of Sen. Bill No. 394 (2017-2018 Reg. Sess.)
Mar. 21, 2017, p. 4.) In Miller v. Alabama (2012) 567 U.S. 460
(Miller), the Supreme Court held mandatory LWOP sentences for
juveniles unconstitutional.20 In Montgomery v. Louisiana (2016)
577 U.S. 190 (Montgomery), the Supreme Court made the
prohibition on mandatory LWOP sentences for juveniles
retroactive. Montgomery provided, however, that “[a] State may
20 The Supreme Court in Miller allowed LWOP sentences for
juvenile defendants who committed homicide, so long as the
sentence was not mandatory—“that is, only so long as the
sentencer has discretion to ‘consider the mitigating qualities of
youth’ and impose a lesser punishment.” (Jones v. Mississippi
(2021) __ U.S. __ [141 S.Ct. 1307, 1314], quoting Miller, supra,
567 U.S. at p. 476.)
80
remedy a Miller violation by permitting juvenile homicide
offenders to be considered for parole, rather than by resentencing
them.” (Id. at p. 212.) By amending section 3051, the
Legislature sought “to remedy the now unconstitutional juvenile
sentences of [LWOP],” without the need for “a resentencing
hearing, which is time-consuming, expensive, and subject to
extended appeals.” (Sen. Com. on Public Safety, Analysis of Sen.
Bill No. 394 (2017-2018 Reg. Sess.) Mar. 21, 2017, p. 3; People v.
Morales (2021) 67 Cal.App.5th 326, 346-347 (Morales).)
Neither Miller nor Montgomery declared LWOP sentences
for young adults unconstitutional, and section 3051 continues to
exclude from the youth offender parole hearing process several
categories of offenders, including young adults sentenced to
LWOP. (§ 3051, subd. (h).) The statute “‘permit[s] the
reevaluation of the fitness to return to society of persons who
committed serious offenses prior to reaching full cognitive and
emotional maturity,’ unless the person was ‘between 18 and 25
years of age when they committed their offense [and] sentenced
to [LWOP].’ [Citation.] It therefore ‘distinguishes both between
those who committed their offenses under 18 years of age and
those between 18 and 25 years of age, and between offenders 18
to 25 years of age sentenced to prison terms with the possibility
of parole and those in the same age group who have been
sentenced to [LWOP].’” (Acosta, supra, 60 Cal.App.5th at p. 777.)
After enactment of section 3051, the California Supreme
Court decided Franklin, which created a process for offenders
who qualified for a youth offender parole hearing under section
3051 to preserve youth-related mitigation evidence. (Franklin,
supra, 63 Cal.4th at pp. 283-284.) A Franklin proceeding gives
“‘an opportunity for the parties to make an accurate record of the
81
juvenile offender’s characteristics and circumstances at the time
of the offense so that the Board [of Parole Hearings], years later,
may properly discharge its obligation to “give great weight to”
youth-related factors (§ 4801, subd. (c)) in determining whether
the offender is “fit to rejoin society”’” despite having committed a
serious crime while he was a child in the eyes of the law. (In re
Cook (2019) 7 Cal.5th 439, 449.)
B. Equal protection
“Both the Fourteenth Amendment to the United States
Constitution and article I, section 7 of the California Constitution
guarantee to all persons the equal protection of the laws. The
right to equal protection of the laws is violated when ‘the
government . . . treat[s] a [similarly situated] group of people
unequally without some justification.’ [Citations.] ‘The
California equal protection clause offers substantially similar
protection to the federal equal protection clause.’” (People v.
Jackson (2021) 61 Cal.App.5th 189, 195 (Jackson).)
“To succeed on an equal protection claim, appellants must
first show that the state has adopted a classification that affects
two or more similarly situated groups in an unequal manner.”
(People v. Edwards (2019) 34 Cal.App.5th 183, 195.) This initial
inquiry is not whether persons are similarly situated for all
purposes, but whether they are similarly situated for purposes of
the law challenged. (People v. Morales (2016) 63 Cal.4th 399,
408.)
If the appellant can establish a class of criminal defendants
is similarly situated to another class of defendants who are
sentenced differently, we look to determine whether there is a
rational basis for the difference. (People v. Edwards, supra, 34
Cal.App.5th at p. 195.) Under this highly deferential standard,
82
“equal protection of the law is denied only where there is no
‘rational relationship between the disparity of treatment and
some legitimate governmental purpose.’” (People v. Turnage
(2012) 55 Cal.4th 62, 74 (Turnage).)
To raise a successful rational basis challenge, a party must
negate “‘“every conceivable basis”’ that might support the
disputed statutory disparity.” (Johnson v. Department of Justice
(2015) 60 Cal.4th 871, 881.) “It is both the prerogative and the
duty of the Legislature to define degrees of culpability and
punishment, and to distinguish between crimes in this regard.
[Citation.] Courts routinely decline to intrude upon the ‘broad
discretion’ such policy judgments entail. [Citation.] Equal
protection analysis does not entitle the judiciary to second-guess
the wisdom, fairness, or logic of the law.” (Turnage, supra, 55
Cal.4th at p. 74.) We independently review defendants’ challenge
to section 3051. (Jackson, supra, 61 Cal.App.5th at p. 195.)
Defendants’ equal protection claim fails because even if we
assume they are similarly situated to juvenile offenders
sentenced to LWOP and to 18- to 25-year-old offenders sentenced
to “de facto” LWOP, they fail to demonstrate that there is no
rational basis for treating them differently from those two
groups. Age is a rational basis for distinguishing juvenile LWOP
offenders from young adults sentenced to LWOP. Drawing the
line at age 18 is “‘the point where society draws the line for many
purposes between childhood and adulthood.’” (People v. Argeta
(2012) 210 Cal.App.4th 1478, 1482; see Roper v. Simmons (2005)
543 U.S. 551, 574.) In criminal sentencing matters, both the
United States Supreme Court and the California Supreme Court
have found the line drawn between juveniles and nonjuveniles to
be a rational one. (See, e.g., Miller, supra, 567 U.S. at p. 471
83
[“children are constitutionally different from adults for purposes
of sentencing”]; Roper v. Simmons, supra, 543 U.S. at p. 574
[“The age of 18 is the point where society draws the line for many
purposes between childhood and adulthood.”]; People v. Gutierrez
(2014) 58 Cal.4th 1354, 1380 [the age of 18 “is the line the
[United States Supreme Court] has drawn in its Eighth
Amendment jurisprudence”].)
Although section 3051 is not a sentencing statute, it
impacts the length of sentence served. (In re Murray (2021) 68
Cal.App.5th 456, 464.) California appellate courts have therefore
concluded that, for purposes of LWOP offenders, the line drawn
at 18 is a rational one when distinguishing juvenile LWOP
offenders from young adult LWOP offenders. (Ibid.; Morales,
supra, 67 Cal.App.5th at p. 347; Jackson, supra, 61 Cal.App.5th
at p. 199; Acosta, supra, 60 Cal.App.5th at pp. 779-780; In re
Jones, supra, 42 Cal.App.5th at p. 482.) We reach the same
conclusion here. The age threshold is rational and not arbitrary.
Young adult offenders sentenced to LWOP may also be
treated differently from young adult offenders serving very
lengthy non-LWOP sentences (the “functional equivalent” of an
LWOP sentence) because, even assuming the two groups are
similarly situated, there is a rational basis for distinguishing
between them—“the severity of the crime committed.” (Acosta,
supra, 60 Cal.App.5th at p. 780.) Although both groups may
involve young adult offenders convicted of first degree murder,
“those sentenced to LWOP have also been found, beyond a
reasonable doubt, to have committed that first degree murder
under one . . . of the special circumstances that reflect that the
particular first degree murder was in some manner aggravated or
reflected a greater risk of harm to persons other than the
84
immediate murder victim or victims. [Citations.] As a result,
[young adult] offenders who have been sentenced to LWOP have
committed an aggravated form of first degree murder that
distinguishes them from [young adult] offenders who have
committed first degree murder but done so in the absence of any
such aggravating factors.” (Jackson, supra, 61 Cal.App.5th at
p. 199.)
The law imposes LWOP sentences for “crimes the
Legislature deems so morally depraved and so injurious as to
warrant a sentence that carries no hope of release for the
criminal and no threat of recidivism for society. In excluding
LWOP inmates from youth offender parole hearings, the
Legislature reasonably could have decided that youthful
offenders who have committed such crimes—even with
diminished culpability and increased potential for
rehabilitation—are nonetheless still sufficiently culpable and
sufficiently dangerous to justify lifetime incarceration.” (In re
Williams (2000) 57 Cal.App.5th 427, 436.)
Defendants here were convicted of a special circumstance
murder. “The Legislature rationally judged this crime to be more
severe and more deserving of lifetime punishment than
nonspecial circumstance first degree murder.” (In re Williams,
supra, 57 Cal.App.5th at p. 436.) “[P]ublic safety, and the desire
to punish those persons who commit first degree special
circumstance murder more harshly than persons who commit
first degree murder without aggravating circumstances, provide a
plausible basis for our Legislature to treat these two
classifications differently for purposes of section 3051.” (Jackson,
supra, 61 Cal.App.5th at p. 200.) Because there is a rational
basis for distinguishing between a young adult LWOP offender
85
and a young adult offender serving a non-LWOP sentence—the
severity of the crime committed—we conclude that no equal
protection violation arose from denying defendants a section 3051
parole hearing. (See In re Williams, at pp. 435-436; see also
Jackson, at pp. 199-200.)
Escalante’s claim that he was improperly denied the
opportunity to make a Franklin presentation fails because he was
statutorily ineligible for a Franklin proceeding. Under section
3051, subdivision (h), Escalante, who was convicted of a first
degree special circumstance murder he committed at age 18, was
ineligible for a Franklin proceeding. The trial court accordingly
had no obligation to provide Escalante with notice of the
opportunity to make a Franklin presentation, and the absence of
such notice did not result in any error. For the same reason,
Escalante’s counsel’s failure to make a Franklin presentation did
not constitute ineffective assistance.
X. Defendants’ LWOP sentences are not cruel and
unusual punishment
Defendants contend their LWOP sentences constitute cruel
and unusual punishment in violation of the Eighth Amendment
and article I, section 17 of the California Constitution. Escalante
claims his mandatory LWOP sentence is disproportionate to his
culpability as an 18-year-old adult aider and abettor who was not
the actual shooter. Gonzalez argues that because the jury’s
verdict did not include a finding that he was the shooter, his
culpability must be assessed as if he were not the shooter.
Neither argument has merit.
A court assessing a claim of cruel and unusual punishment
must “decide whether the penalty given ‘is so disproportionate to
the crime for which it is inflicted that it shocks the conscience
86
and offends fundamental notions of human dignity,’ thereby
violating the prohibition against cruel and unusual punishment
of the Eighth Amendment of the federal Constitution or against
cruel or unusual punishment of article I, section 17 of the
California Constitution.” (People v. Cunningham (2001) 25
Cal.4th 926, 1042.) A defendant “‘“attacking his sentence as
cruel or unusual must demonstrate his punishment is
disproportionate in light of (1) the nature of the offense and
defendant’s background, (2) the punishment for more serious
offenses, or (3) punishment for similar offenses in other
jurisdictions.”’” (In re Williams, supra, 57 Cal.App.5th at p. 437.)
Escalante concedes his Eighth Amendment claim must be
rejected under binding United States Supreme Court authority.
(Roper v. Simmons, supra, 543 U.S. at p. 574 [age 18 is the
appropriate cutoff for death penalty sentence eligibility].)
California courts have similarly held that a mandatory LWOP
sentence imposed on offenders 18 years of age and older does not
violate article I, section 17 of the California Constitution. (In re
Williams, supra, 57 Cal.App.5th at pp. 437-439 [LWOP sentence
not cruel and unusual punishment when imposed on 21-year-old
convicted of intentional first degree murder]; People v. Edwards,
supra, 34 Cal.App.5th at pp. 190-192 [functional equivalent of
LWOP sentences imposed on 19-year-old offenders not cruel and
unusual under state and federal Constitutions]; People v. Perez
(2016) 3 Cal.App.5th 612, 617; People v. Abundio (2013) 221
Cal.App.4th 1211, 1220-1221; People v. Argeta, supra, 210
Cal.App.4th at p. 1482 [mandatory LWOP imposed on defendant
who committed first degree murder five months after his 18th
birthday not cruel and unusual under federal and state
87
Constitutions].) Defendants provide no persuasive reason for
deviating from these cases.
Escalante’s LWOP sentence is not grossly disproportionate
to his culpability. Although Escalante was the driver and not the
shooter, he admitted knowing in advance that Gonzalez would
commit the shooting. As the trial court noted at sentencing,
Escalante was “as culpable as the shooter.”
As to Gonzalez, the jury found true the allegation that a
principal discharged a firearm for purposes of the gang-related
firearm enhancement. That finding, together with Gonzalez’s
admissions, establish that he was the shooter. Gonzalez’s LWOP
sentence is not grossly disproportionate to his culpability.
XI. Driveby special circumstance
In People v. Rodriguez (1998) 66 Cal.App.4th 157, 164, this
court rejected the argument defendants raise in this appeal—that
the driveby shooting special circumstance unconstitutionally fails
to narrow the pool of individuals eligible for LWOP because it
duplicates the elements of driveby first degree murder. We
decline defendants’ request that we reconsider that decision,
which controls here.
XII. Alleged cumulative error
We reject defendants’ contention that the cumulative effect
of the claimed errors identified in their appeals deprived them of
due process of law and a fair trial. Because we have found none
of the claimed errors to constitute individual errors, they cannot
as a group constitute cumulative error. (People v. Richardson,
supra, 43 Cal.4th at p. 1036.)
XIII. Presentence custody credit
The Attorney General concedes Escalante is entitled to
1,876 days of custody credit rather than the 1,869 days he was
88
awarded. On remand, the trial court is directed to recalculate
and award Escalante 1,876 days of presentence custody credit.
DISPOSITION
For each defendant, the gang enhancement allegation
findings under section 186.22, subdivision (b) under counts 1, 2,
and 4, and the gang-related firearm enhancement findings under
section 12022.53, subdivision (e)(1) under those same counts are
vacated. The matter is remanded to the trial court for retrial of
the gang allegations on those counts if the People so elect. We
direct the trial court to recalculate and award Escalante 1,876
days of custody credit and to prepare an amended abstract of
judgment reflecting that presentence custody credit award and to
forward a copy of the amended abstract to the Department of
Corrections and Rehabilitation. In all other respects, the
judgments are affirmed.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
HOFFSTADT, J.
89 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482636/ | Filed 11/9/22 P. v. Spears CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
----
THE PEOPLE,
Plaintiff and Respondent, C095418
v. (Super. Ct. No. LOD-CR-FE-
2020-0012028)
TYSON PATRICK SPEARS,
Defendant and Appellant.
Defendant Tyson Patrick Spears drove into a tree while he was under the influence
of drugs. His passenger, Austin Zachocki, died. A jury convicted defendant of vehicular
manslaughter while intoxicated and misdemeanor driving under the influence of a drug,
and the trial court sentenced him to 13 years in state prison.
Defendant now contends (1) it was error for the trial court to deny his motion to
suppress evidence of a blood draw taken after his arrest, (2) the trial court should not
have imposed a five-year enhancement under Penal Code section 667, subdivision (a)1,
(3) defendant’s trial counsel was ineffective in not objecting to the imposition of the five-
year enhancement, (4) the conviction for misdemeanor driving under the influence must
be stricken because it was a lesser included offense of vehicular manslaughter while
intoxicated, (5) the matter should be remanded for resentencing under Assembly Bill
1 Undesignated statutory references are to the Penal Code.
1
No. 518 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 441, § 1), (6) the matter should be
remanded for resentencing under Senate Bill No. 567 (2021-2022 Reg. Sess.) (Stats.
2021, ch. 731, § 1), and (7) defendant is entitled to three additional days of presentence
custody credit.
We will reverse the conviction for misdemeanor driving under the influence, strike
the five-year enhancement, vacate the sentence, and remand for full resentencing
consistent with current sentencing law and a proper award of presentence custody credit.
We will otherwise affirm the judgment.
BACKGROUND
A witness was driving southbound on Highway 99 in Lodi when a car driven by
defendant passed him, wobbled within the lane, and suddenly veered off the road and into
a tree. The witness stopped and helped defendant out of the car. Defendant was in pain
and used the witness’s cell phone to make a call. The witness saw someone in the front
passenger seat who appeared to be deceased.
California Highway Patrol Officer Jesse Apolonio arrived at the scene of the
accident soon after it happened. Defendant was lying on the asphalt, yelling in pain. The
passenger, Austin Zachocki, was deceased. Defendant was transported to the hospital by
ambulance. Officer Apolonio viewed surveillance video from a local business, and it
appeared defendant’s car was traveling about 75 to 80 miles per hour when it veered off
the road. Blood drawn from defendant at the hospital tested positive for
methamphetamine, amphetamine, midazolam, and marijuana metabolites.
An information charged defendant with gross vehicular manslaughter while
intoxicated (§ 191.5, subd. (a)—count 1) and driving under the influence causing bodily
injury (Veh. Code, § 23153, subd. (f)—count 2). The information also alleged a prior
serious felony conviction. (§§ 667, subd. (a); 1170.12, subd. (b).) A jury found
defendant not guilty of the charged offenses but guilty of the lesser included offenses of
2
vehicular manslaughter while intoxicated (§ 191.5, subd. (b)—count 1) and misdemeanor
driving under the influence of a drug (Veh. Code, § 23152, subd. (f)—count 2).
The trial court sentenced defendant to the upper term of four years for vehicular
manslaughter while intoxicated, doubled to eight years for the prior strike conviction.
(§ 191.5, subd. (c)(2).) The trial court also imposed a five-year enhancement for the prior
serious felony. (§ 667, subd. (a).) For the misdemeanor driving under the influence
conviction, the trial court imposed one year, stayed under section 654. (Veh. Code,
§ 23152, subd. (f).) The total aggregate sentence was 13 years.
DISCUSSION
I
Defendant contends it was error for the trial court to deny his motion to suppress
evidence of a blood draw taken after his arrest.
Law enforcement placed defendant under arrest after the accident for driving
under the influence, and, while defendant was unconscious, Officer Apolonio had a nurse
draw a blood sample, which tested positive for methamphetamine, amphetamine,
midazolam, and marijuana metabolites. Defendant moved to suppress the evidence
resulting from the blood draw, arguing the arrest was without probable cause. (§ 1538.5.)
The trial court denied defendant’s motion to suppress.
“An arrest is valid if supported by probable cause. Probable cause to arrest exists
if facts known to the arresting officer would lead a person of ordinary care and prudence
to entertain an honest and strong suspicion that an individual is guilty of a crime.”
(People v. Kraft (2000) 23 Cal.4th 978, 1037 (Kraft).) “The standard of probable cause
to arrest is the probability of criminal activity, not a prima facie showing.” (People v.
Lewis (1980) 109 Cal.App.3d 599, 608.) This is an objective standard based upon the
totality of circumstances at the time of arrest. (People v. Rosales (1987) 192 Cal.App.3d
759, 765.)
3
An arrest for driving under the influence of a drug requires probable cause the
suspect was (1) driving and (2) under the influence of a drug. (Veh. Code, § 23152,
subd. (f).) Defendant does not challenge the officer’s cause to believe he was driving.
When the trial court rules on a motion to suppress, it determines the facts, selects
the applicable rule of law, and applies the rule of law to the facts to determine whether
the rule was violated. (People v. Williams (1988) 45 Cal.3d 1268, 1301.) On appeal, the
trial court’s determination of the facts is reviewed for substantial evidence. (People v.
Loewen (1983) 35 Cal.3d 117, 123.) As to the applicable law and application of the law,
we exercise our independent judgment. (Ibid.)
The trial court ruled on the motion to suppress based on the evidence introduced at
the preliminary hearing. Because the facts known to the arresting officer are material to
the motion to suppress, we will focus on those facts from the preliminary hearing.
Officer Apolonio responded to the call concerning the traffic collision. When he
arrived, he observed the car with major damage. A passenger was in the right front seat,
and defendant was lying on the shoulder of the highway, next to the damaged car.
Defendant was almost in the fetal position yelling in pain. The passenger was deceased.
Officer Apolonio was unable to conduct any field sobriety testing on defendant because
of defendant’s injuries. An ambulance arrived soon after Officer Apolonio and left with
defendant within a few minutes.
Officer Apolonio took witness statements at the scene of the accident. A witness
told him he was driving behind the car defendant was driving when he saw defendant’s
vehicle suddenly veer off the road and into a tree. The witness pulled defendant from the
vehicle. The witness told Officer Apolonio it appeared to him defendant was under the
influence of a drug; however, the officer was not sure whether the witness said this at the
scene of the accident or later in a phone conversation after the arrest.
Officer Apolonio went to the hospital, but he was not able to speak to defendant
because defendant was intubated and awaiting emergency surgery. Officer Apolonio
4
examined defendant for injection sites on his arms, but he could not tell whether marks
were injection sites or injuries from the accident.
Officer Apolonio spoke to an emergency medical technician who had personally
observed defendant. She reported that defendant’s pupils were dilated before any
medication was administered, but she also described them as “[p]inpoint.” In his
training, Officer Apolonio knew that use of various controlled substances could lead to
dilated or constricted pupils, and he understood that being dilated and constricted were
not the same. Head trauma could also cause constricted pupils.
Officer Apolonio placed defendant under arrest for suspicion of driving under the
influence because of the way the car veered off the highway and based on the emergency
medical technician’s description of defendant’s eyes. He then directed a nurse to draw
blood without a warrant. The blood contained methamphetamine, amphetamine,
midazolam, and marijuana metabolites.
Regarding the circumstances of the accident, Officer Apolonio said: “Based on
my experience of [] investigating traffic collisions, it’s unusual for a vehicle to just veer
off the roadway. My experience, most sober drivers don’t have driving actions such as
that. If there is a mechanical failure or a medical issue, there is some brake application or
some slowing of the vehicle. But a vehicle going directly into a stationary object is very
unusual.”
The trial court denied the motion to suppress, finding Officer Apolonio had
probable cause to arrest defendant for driving under the influence. Specifically, the trial
court relied on two circumstances: the car made an abrupt turn off the road and collided
with a tree, and the state of defendant’s pupils.
The unusual nature of the accident supported an inference defendant was under the
influence when he suddenly veered off the road and into a tree. In addition, defendant’s
pupils were dilated or constricted or both at various times. Either condition would
support an inference defendant was under the influence of drugs. These two
5
circumstances amounted to probable cause for Officer Apolonio to arrest defendant for
driving under the influence after the accident because the “facts known to the arresting
officer would lead a person of ordinary care and prudence to entertain an honest and
strong suspicion” defendant was driving under the influence. (Kraft, supra, 23 Cal.4th at
p. 1037.)
Defendant disagrees for several reasons. He argues other “hallmark signs of drunk
driving,” such as slurred speech or odor of alcohol, were absent. But differences from
other instances of driving under the influence do not negate the inferences present here of
driving under the influence.
Defendant also argues it was physically impossible that his pupils were both
dilated and constricted, and, therefore, the trial court could not rely on that evidence.
(People v. Young (2005) 34 Cal.4th 1149, 1181 [testimony of a single witness is
sufficient if not physically impossible or inherently improbable].) But it is not clear from
the record whether one of the conditions was misreported or whether the description
referenced different times. The trial court was justified in determining that there was an
observed difference in the pupils, whether dilation or constriction, from which an
inference could be drawn that defendant was under the influence of drugs. Officer
Apolonio’s reliance on the condition of the pupils in making the arrest was supported.
Defendant claims that because Officer Apolonio could not eliminate the possibility
of a mechanical failure or a medical condition or a fight between the driver and
passenger, and because Officer Apolonio did not have evidence, beyond the
circumstances of the accident, that defendant was driving recklessly, Officer Apolonio
could not rely on the circumstances of the accident to support the conclusion defendant
was driving under the influence. To the contrary, the absence of other evidence
concerning defendant’s driving did not negate the reasonable inference Officer Apolonio
drew, based on his experience, from the sudden veering of the vehicle off the road and
into a tree.
6
The trial court properly found Officer Apolonio had probable cause to arrest
defendant for driving under the influence.
II
Defendant next contends the trial court should not have imposed the five-year
enhancement under section 667, subdivision (a) because the People did not plead or
prove a current serious felony conviction. The People agree, as do we.
Section 667, subdivision (a) provides for a five-year enhancement if a defendant
with a prior serious felony conviction is convicted of a new serious felony. Although
defendant had a prior serious felony conviction for assault with a deadly weapon in 2014,
and the trial court imposed the five-year enhancement under section 667, subdivision (a),
the People did not plead and prove that the current conviction for vehicular manslaughter
while intoxicated was a serious felony under section 667, subdivision (a).
Vehicular manslaughter while intoxicated, a violation of section 191.5,
subdivision (b), is not a serious felony under section 667, subdivision (a) unless the
People plead and prove defendant personally inflicted great bodily injury on a person
other than an accomplice. (§ 1192.8, subd. (a); People v. Gonzales (1994)
29 Cal.App.4th 1684, 1692.) Here, because the People did not plead and prove that the
vehicular manslaughter was a serious felony, the five-year enhancement should not have
been imposed. We will strike the enhancement, vacate the sentence, and remand for
resentencing. (See People v. Jones (2022) 79 Cal.App.5th 37, 46 (Jones) [full
resentencing necessary after part of sentence stricken].)
III
Defendant alternatively contends that if his challenge to the enhancement was
forfeited because his trial counsel did not object, trial counsel violated defendant’s right
to counsel. We need not consider the contention because the imposition of the
enhancement without pleading and proof resulted in an unauthorized sentence, which can
7
be raised on appeal without an objection on the specific ground in the trial court. (People
v. Mancebo (2002) 27 Cal.4th 735, 749, fn. 7.)
IV
Defendant also argues we must reverse his conviction in count 2 for misdemeanor
driving under the influence of a drug because it was a lesser included offense of his
conviction in count 1 for vehicular manslaughter while intoxicated. The People again
agree, as do we.
Multiple convictions based on the same conduct are prohibited if one of the
convictions is a lesser included offense of the other. (People v. Montoya (2004)
33 Cal.4th 1031, 1034.) “In deciding whether an offense is necessarily included in
another, we apply the elements test, asking whether ‘ “ ‘all the legal ingredients of the
corpus delicti of the lesser offense [are] included in the elements of the greater offense.
‘[Citation.]” ’ [Citation.] In other words, ‘if a crime cannot be committed without also
necessarily committing a lesser offense, the latter is a lesser included offense within the
former.’ [Citation.] ” (Ibid.)
Vehicular manslaughter while intoxicated (§ 191.5, subd. (b)) requires driving
under the influence (Veh. Code, § 23152). Therefore, misdemeanor driving under the
influence, charged in count 2, was a lesser included offense of vehicular manslaughter
while intoxicated. Such multiple convictions under these circumstances are prohibited.
(See People v. Miranda (1994) 21 Cal.App.4th 1464, 1468 [Vehicle Code section 23153,
subdivision (a) is a lesser included offense within section 191.5, subdivision (a)]; People
v. Binkerd (2007) 155 Cal.App.4th 1143, 1149 [any violation of Vehicle Code sections
23140, 23152, or 23153 resulting in a victim fatality is a lesser included offense of
vehicular manslaughter].) For that reason, we will reverse the conviction for
misdemeanor driving under the influence.
8
V
Defendant alternatively argues that if we conclude count 2 was not a lesser
included offense of count 1, we must remand for the trial court to exercise its newly
enacted discretion under Assembly Bill No. 518 to designate which crime to impose and
execute sentence, given that section 654 requires a stay of one of the sentences. But
because we have determined the conviction on count 2 must be reversed, we need not
consider this contention.
VI
In addition, defendant contends the matter should be remanded for resentencing
under Senate Bill No. 567.
The trial court sentenced defendant to the upper term of eight years. In doing so, it
relied on several aggravating factors, including defendant’s long criminal history, his
failure to reform through drug programs, and the increasingly serious nature of his
crimes. Defendant contends we should vacate the sentence and remand for resentencing
because Senate Bill No. 567 now makes the middle term presumptive and restricts the
circumstances under which a trial court may rely on aggravating factors to impose the
upper term. (See Jones, supra, 79 Cal.App.5th at p. 44 [recounting the effect of Senate
Bill No. 567].) The People respond that the trial court’s reliance on defendant’s criminal
history was consistent with Senate Bill No. 567 and in any event, any sentencing error
was harmless. We need not consider the parties’ arguments because, having determined
that we will reverse the conviction on count 2 and strike the enhancement under section
667, subdivision (a), we will vacate the sentence and remand for full resentencing. When
the trial court resentences, it must comply with current sentencing law. (Jones, at pp. 45-
46.)
VII
Defendant argues the trial court erred in awarding defendant 654 days of
presentence custody credit rather than 657 days. The People agree with defendant’s
9
calculation on appeal.
Defendant was arrested on December 1, 2020, and he was sentenced on
October 25, 2021. Including the date of the arrest and the date of sentencing, defendant
served 329 actual days in presentence custody. (See People v. Morgain (2009)
177 Cal.App.4th 454, 469 [defendant entitled to full-day credit for date of arrest and date
of sentencing].) He is also entitled to 328 days of presentence conduct credit. (§ 4019;
People v. Whitaker (2015) 238 Cal.App.4th 1354, 1358 [defendant entitled to two days of
presentence conduct credit for each two-day period of actual time served].) Thus,
defendant is correct that he is entitled 657 days of presentence custody credit. On
remand, the trial court must award defendant the correct number of days of presentence
custody credit.
DISPOSITION
The conviction for misdemeanor driving under the influence is reversed, and the
five-year enhancement under section 667, subdivision (a) is stricken. The sentence is
vacated, and the matter is remanded for resentencing consistent with current sentencing
laws and with the appropriate amount of presentence custody credit, which is 657 days.
In all other respects, the judgment is affirmed.
/S/
MAURO, Acting P. J.
We concur:
/S/
RENNER, J.
/S/
KRAUSE, J.
10 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482642/ | 2022 IL App (2d) 210648
No. 2-21-0648
Opinion filed November 9, 2022
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
JUDITH GRANDT, ) of Lake County.
)
Petitioner-Appellant, )
)
and ) No. 96-D-1537
)
LAURENCE J. GRANDT, ) Honorable
) Stephen M. DeRue,
Respondent-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Presiding Justice Brennan and Justice Hudson concurred in the judgment and opinion.
OPINION
¶1 Petitioner, Judith Grandt, appeals the judgment of the circuit court of Lake County denying
her petition for enforcement of judgment and restitution. In her petition, Judith sought to treat the
disability pension of respondent, Laurence J. Grandt, as a retirement pension subject to division
by the terms of the parties’ dissolution of marriage judgment and the marital settlement agreement
(MSA) incorporated therein. On appeal, Judith argues that, where Laurence is eligible to receive a
retirement pension, he should not be allowed to frustrate the intent of the MSA by claiming that it
remains a disability pension. We reverse and remand.
¶2 I. BACKGROUND
¶3 The relevant portions of the record reveal that, on May 21, 1997, the parties’ nearly 20-
year marriage was dissolved. At the time of the dissolution, Judith was 46 years of age, was
2022 IL App (2d) 210648
employed as a route manager for a newspaper and as a babysitter and day care provider, and was
earning approximately $12,000 per year. Laurence was 43 years of age, was employed as a
firefighter with the Countryside Fire Protection District (District), and was earning approximately
$62,000 per year. The parties had two children during the marriage, an 18-year-old attending
college and a 14-year-old attending high school.
¶4 In the parties’ MSA, they agreed that Judith would receive in maintenance $150 per month
for 24 months, after which either party could file a petition to terminate the maintenance or to
modify it based on the parties’ financial circumstances. In addition, the MSA recited that there was
“an affirmative obligation on [Judith] to be independently capable of obtaining employment or
finances to meet her reasonable needs.” The MSA also included a specific provision about the
division of Laurence’s pension from the District (pension provision):
“With respect to [Laurence’s] pension with Countryside Fire Protection District,
they will not honor a [qualified domestic relations order (QDRO)], therefore either a
withholding order shall be placed against [Laurence] or he shall be directly ordered to pay
[Judith] in accordance with a formula of 20 years of marriage over years of participation
times one half, which shall be paid to [Judith] only in the event it is received by [Laurence]
if it is paid to him as a pension benefit. [Laurence] shall make every effort to segregate the
funds if possible, by having the Plan Administrator segregate those funds into the name of
[Judith], or by direct payment to her as [Laurence] receives his funds. [Laurence] shall also
make an effort to name [Judith], allowing her the surviving widow’s award in the event of
the death of [Laurence] prior to his receiving his pension benefits.”
¶5 On February 17, 1999, Laurence filed a pro se motion seeking, among other things, the
suspension of his child support and maintenance obligations. Laurence stated in the motion that he
had lost his employment due to medical disability but was pursuing both workers’ compensation
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and an on-duty disability pension. 1 The parties entered an agreed order, suspending Laurence’s
obligations for 90 days or until he began receiving an on- or off-duty disability pension. The matter
was continued by agreement until July 22, 1999, at which time the parties entered another agreed
order setting a temporary child support amount.
¶6 On November 1, 1999, Judith filed a petition for rule to show cause, alleging that Laurence
had not paid his share of the minor child’s medical and educational expenses. On December 14,
1999, the parties entered an agreed order in which Laurence agreed to pay the medical- and
educational-cost arrearage at the rate of $100 per week.
¶7 On September 12, 2000, Laurence filed a petition to terminate child support because the
minor child had experienced an “emancipation event” as defined in the MSA in that he had been
expelled from high school for truancy, would not be returning to school, and was working full
time. On September 20, 2000, the trial court determined that the minor child was emancipated and
terminated Laurence’s obligation to pay child support for the minor child.
¶8 On May 1, 2001, the trial court entered a qualified Illinois domestic relations order
(QILDRO) specifying that Judith was to receive her marital portion of Laurence’s “retirement
benefit *** when benefits become payable” or “on the date the retirement benefit commences.”
Also on May 1, Laurence filed his consent to issue the QILDRO. No further postdissolution
motions appear in the record until February 25, 2020.
¶9 On February 25, 2020, Judith filed a petition for issuance of a QILDRO and for restitution.
There were apparent notice issues, and, on June 12, 2020, the trial court ordered Judith to effect
1
The record shows that, at 44 or 45 years of age at the time he incurred his disability,
Laurence was not eligible to receive a retirement pension even though he had sufficient years of
service.
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2022 IL App (2d) 210648
personal service on Laurence, which appears to have been accomplished. On July 24, 2020, the
court entered a default judgment against Laurence on the February 25, 2020, petition. On August
12, 2020, Laurence filed a motion to vacate the default judgment, and, on August 18, 2022, the
court granted Laurence’s motion to vacate. On September 2, 2020, Laurence filed a response to
Judith’s petition for issuance of a QILDRO and alleged that he had been receiving a disability
pension from the District, beginning about a year after the dissolution judgment and “long before
[he reached] retirement age.”
¶ 10 The parties appear to have engaged in settlement discussions. The proceedings were
continued, with the trial court recognizing that no settlement had been achieved and setting the
matter for hearing. On March 29, 2021, on its own motion, the court dismissed Judith’s petition
for issuance of a QILDRO for being “insufficiently pled.” The court also expressly invited Judith
to replead her petition.
¶ 11 On April 22, 2021, instead of filing an amended petition, Judith filed a petition for
enforcement of judgment and for restitution. 2 Judith alleged that the District, had a unified
employee disability and pension plan under article 4 (titled “Firefighters’ Pension Fund—
Municipalities 5000,000 and Under”) of the Illinois Pension Code (40 ILCS 5/4-101 et seq. (West
1996)) and Laurence, as an employee, was entitled to benefits under the pension plan. Judith
alleged that, after the entry of the judgment of dissolution, Laurence was injured in the course of
2
Laurence characterizes the petition for enforcement of judgment as an unlabeled amended
petition for issuance of a QILDRO. However, there appears to be no impropriety with Judith
having submitted the petition for enforcement of judgment rather than an amended petition for
issuance of a QILDRO, and Laurence did not pursue the issue in the trial court; instead, he has
pointed it out for the first time on appeal.
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2022 IL App (2d) 210648
his employment, stopped working for the District, and began receiving disability benefits. Judith
alleged, on information and belief, that, at some point after Laurence had attained 50 years of age,
Laurence had elected to retire, resulting in the conversion of disability pension payments into
retirement pension payments, and that she was entitled under the judgment of dissolution to her
marital portion of Laurence’s retirement benefits. In count I, Judith sought enforcement of the
pension provision, going forward. In count II, Judith sought to determine the date on which
Laurence began receiving his retirement pension payments and the arrearage arising from that and
she sought an order requiring Laurence to pay the arrearage.
¶ 12 On May 10, 2021, Laurence filed his response to the petition for enforcement of judgment.
Laurence admitted that the District had a statutory unified employee disability and pension plan
under the Pension Code but denied that he had elected to retire or that he had received retirement
pension payments. Laurence also maintained throughout the response to the petition that he was
receiving disability benefit payments and that, as a result, Judith was not entitled to any portion of
his disability payments.
¶ 13 The trial court ordered the parties to prepare an agreed stipulation of facts, but the record
does not show that any such stipulation was filed. The court set the matter for hearing, and the
hearing date was continued. The record does not contain an affirmative indication of whether the
parties argued Judith’s petition before the court. On October 18, 2021, the court denied Judith’s
petition. In expressing its reasoning, the court stated that it had been guided by the Second District
case of In re Marriage of Belk, 239 Ill. App. 3d 806 (1992), which it found helpful in analyzing
the MSA. The court found the term “pension” in the MSA to be ambiguous but ultimately
concluded from the MSA as a whole and the Pension Code that the parties intended the division
of an age-related or retirement pension and did not contemplate the division of any disability
pension benefits.
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2022 IL App (2d) 210648
¶ 14 Judith timely appeals.
¶ 15 II. ANALYSIS
¶ 16 On appeal, Judith argues that Laurence’s receipt of a disability pension should not defeat
her right to receive the agreed-upon portion of his pension benefits once Laurence had fully
attained eligibility to retire. Judith argues that the weight of authority and the structure of the
Pension Code support her contention. We begin by considering the standards that govern our
review.
¶ 17 A. Applicable Standards of Review
¶ 18 Review of the trial court’s decision involves several aspects. First, we must look to the
judgment of dissolution and the MSA incorporated therein. We must also interpret relevant and
applicable provisions of the Pension Code. Finally, we must account for the effect, if any, of the
procedural posture in the trial court on our review.
¶ 19 Turning to the standard governing the interpretation of the MSA, we first note that any
marital settlement agreement is a contract and interpreted according to the rules and principles of
contract interpretation. In re Marriage of Andres, 2021 IL App (2d) 191146, ¶ 51. Thus, our main
objective is to ascertain and give effect to the parties’ purpose and intent in entering the agreement.
In re Marriage of Schurtz, 382 Ill. App. 3d 1123, 1125 (2008). If the agreement’s language is clear
and unambiguous, it should be given its plain and ordinary meaning. Id. If, however, the language
is ambiguous, the parties’ intent must be ascertained by examining the facts and circumstances
surrounding the formation of the agreement. Id. In either case, the interpretation of an MSA is
reviewed de novo as a question of law. Andres, 2021 IL App (2d) 191146, ¶ 51.
¶ 20 Next, we consider our review of relevant provisions of the Pension Code. The cardinal rule
of statutory interpretation is to ascertain and give effect to the legislative intent. Rivtis v. Turan,
2022 IL App (2d) 210489, ¶ 19. Legislative intent is best indicated by the language employed in
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the statute, given its plain and ordinary meaning. Id. We review de novo the trial court’s
construction of a statute. Id.
¶ 21 Finally, the procedural posture below may also influence our standard of review, depending
on whether the trial court evaluated witness testimony and credibility and made evidentiary
findings. Here, Judith filed a petition seeking to enforce the judgment of dissolution and the
incorporated MSA and Laurence filed an answer to the allegations in Judith’s petition. It appears
that the court resolved the petition on the merits and that its judgment was based on its
interpretation of the MSA and the Pension Code, as needed, and it does not appear that any
nondocumentary evidence was offered. Therefore, the issues resolved in the court’s judgment
presented questions of law, which are reviewed de novo. Gallagher v. Lenart, 226 Ill. 2d 208, 219
(2007). With these principles of review in mind, we turn to the issue presented on appeal.
¶ 22 B. Disability Pension Versus Retirement Pension
¶ 23 Judith argues that, at this point, Laurence’s pension should be deemed equivalent to a
retirement pension. Judith argues that the clear intent of the MSA was to allow her to receive her
marital portion of Laurence’s retirement pension and that to accept Laurence’s claim to still be
receiving a disability pension at the age of 66 (his age when she filed her original petition, for
issuance of a QILDRO, in 2020) would frustrate the intent of the MSA.
¶ 24 Our starting point is the MSA. The MSA resolved issues of custody, maintenance, and the
division of the marital estate. Regarding maintenance, the parties agreed that Laurence would pay
$150 per month for 24 months. The parties also agreed that Judith had “an affirmative obligation”
to become economically self-sufficient. The marital estate was divided unequally, with Judith
receiving 60% of the marital estate and Laurence receiving 40%. Other assets identified
specifically were mutual funds, Laurence’s pension with the District, the marital residence,
-7-
2022 IL App (2d) 210648
automobiles, debts, attorney fees, the upcoming 1996 income tax filing, and the disposition of
various other items. In particular, the MSA provided:
“With respect to [Laurence’s] pension with Countryside Fire Protection District,
they will not honor a [qualified domestic relations order (QDRO)], therefore either a
withholding order shall be placed against [Laurence] or he shall be directly ordered to pay
[Judith] in accordance with a formula of 20 years of marriage over years of participation
times one half, which shall be paid to [Judith] only in the event it is received by [Laurence]
if it is paid to him as a pension benefit. [Laurence] shall make every effort to segregate the
funds if possible, by having the Plan Administrator segregate those funds into the name of
[Judith], or by direct payment to her as [Laurence] receives his funds. [Laurence] shall also
make an effort to name [Judith], allowing her the surviving widow’s award in the event of
the death of [Laurence] prior to his receiving his pension benefits.”
¶ 25 When interpreting a contract to ascertain the parties’ intent, we look to the language of the
contract, keeping in mind that we must consider the contract as a whole, viewing each provision
in light of the other provisions. Thompson v. Gordon, 241 Ill. 2d 428, 441 (2011). We cannot
determine the parties’ intent by looking at a provision in isolation or by looking at disparate,
isolated portions of the contract. Id. If, after performing this examination of the entire contract, the
language is clear and unambiguous, it will be given its plain, ordinary, and popular meaning; if,
however, the language of the contract is susceptible to more than one reasonable meaning, it is
ambiguous, and we may resort to extrinsic evidence to determine the parties’ intent. Id.
¶ 26 Here, the trial court focused on the word “pension” in determining that the MSA was
ambiguous, because “pension” could reasonably refer to a disability pension or a retirement
pension. A disability pension is awarded to provide income replacement for a firefighter who,
through injury or illness, is unable to perform the requirements of the position. See Schurtz, 382
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2022 IL App (2d) 210648
Ill. App. 3d at 1126 (disability pay is meant to replace the injured recipient’s income). A retirement
pension is a pension based on the recipient’s longevity and service. See, e.g., 40 ILCS 5/4-109
(West 1996) (providing that the pension is a percentage of salary attained at retirement from
service determined by years of creditable service). However, when looking at the language of the
pension provision and its context within the MSA as a whole, the meaning of “pension” is clear
and unambiguous, and the MSA itself is likewise unambiguous.
¶ 27 As an initial observation, the MSA does not reference “disability,” “disability pay,”
“disability pension,” “disability benefits,” or any other similar term. Instead, the pension provision
appears in the portion of the MSA dividing marital assets, and it provides that the pension shall be
divided between Judith and Laurence according to the length of the marriage divided by the years
of Laurence’s service. The division of the pension will occur “only in the event [the pension] is
received by [Laurence] if it is paid to him as a pension benefit.” The provision further provides
that Judith will be designated as the surviving widow should Laurence die before he receives his
pension benefits. The right of a surviving widow to receive any pension benefits is tied to the
condition precedent that the firefighter who dies is not receiving a disability pension. Id. § 4-114
(“[i]f a firefighter who is not receiving a disability pension *** dies,” the surviving spouse will
receive a pension). Finally, the MSA provided a relatively brief period of maintenance while Judith
became economically self-sufficient, and this evidences an intention that Judith was not to receive
a portion of Laurence’s income beyond the maintenance period. It would therefore be contrary to
the expressed intent of the MSA for Judith to now begin receiving a portion of Laurence’s
disability pension, which, as noted, is income replacement, not earned retirement benefits. Based
on our consideration of the whole of the MSA and contextualizing the pension provision therein,
we determine that the MSA is unambiguous and that the parties agreed to divide Laurence’s
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2022 IL App (2d) 210648
retirement pension only when he would begin to receive his retirement pension; the parties did not
consider or intend that “pension” would include a disability pension.
¶ 28 Even though the MSA is unambiguous, its language does not address what happens when
Laurence, despite receiving a disability pension, attains eligibility to retire. Judith argues that
Laurence’s continuing to receive a “disability” pension even though he is eligible to retire
essentially elevates the form over the substance and serves only to frustrate the parties’ clear intent
to divide Laurence’s pension, once he retired. In support, Judith cites In re Marriage of Benson,
2015 IL App (4th) 140682, for the proposition that a disability pension that is actually a substitute
for a retirement pension will be treated as a retirement pension. Laurence, for his part, argues that
the trial court was correct to follow Belk and attempts to distinguish Benson.
¶ 29 Before we approach the parties’ contentions, we first note that Laurence argues that Judith
has not provided a sufficient record on appeal, because she did not include the agreed stipulation
of facts (supra ¶ 13). Generally, an incomplete or insufficient record gives rise to the presumption
that the trial court acted in conformity with the law and with a sufficient factual basis for its
findings. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). The failure to include the parties’
stipulation is the only omission or lack in the record on appeal identified by Laurence. While it is
true that Judith did not include the stipulation in the record, we cannot see how the inclusion of
the stipulation would have any impact on our analysis. This case involves the interpretation of the
parties’ MSA, and we have determined that the MSA is unambiguous. Thus, even if the stipulation
had agreed facts touching on the parties’ intent at the time the MSA was executed, it would be
irrelevant because we look to the four corners of the unambiguous agreement. See Thompson, 241
Ill. 2d at 441 (extrinsic evidence to discern the parties’ intent may be considered only where the
instrument is ambiguous). Moreover, the interplay between the Pension Code and the MSA
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presents legal questions, which do not depend on any facts beyond those already contained in the
record. Foutch, then, simply has no applicability under the circumstances of this case.
¶ 30 Turning to the parties’ contentions on appeal, we begin with Laurence’s argument and Belk.
In that case, the parties agreed to divide the husband’s police pension “ ‘when and at the time [the
husband] withdraws any amounts from his pension plan or he is paid any benefits under said
plan.’ ” Belk, 239 Ill. App. 3d at 807. Nine days after the entry of the dissolution judgment, the
husband was injured in a non-duty-related accident and was thereafter unable to work. Id. The
husband received disability benefits as a result. Id. The trial court considered whether the wife was
entitled to a portion of the husband’s disability benefits, and it determined that the disability
benefits were similar to a retirement pension and should be treated the same as a retirement
pension. Id. at 807-08.
¶ 31 On appeal, this court held that the provision dividing the “pension plan” was ambiguous,
because it was susceptible to two reasonable meanings: the division of an age-related retirement
pension only, or the division of any benefits received through the husband’s pension plan,
including disability benefits. Id. at 809. This court considered several key factors in reaching its
conclusion. First, there was no reference to “disability.” Id. Second, the wife was not receiving
any part of the husband’s monthly income through maintenance (and a disability pension is a
substitute for monthly income.) Id. at 810. Third, to treat the husband’s disability payments as
divisible would be unreasonable because he would be receiving only a quarter of his monthly
salary if the disability payments were divided, instead of the half he would receive if the disability
payments were not divided (and this dovetailed with the second point, that the wife was not
receiving maintenance or any part of the husband’s monthly salary). Id. at 810-11. Fourth, the
parties discussed the division of “retirement” benefits on the record. Id. at 811. Fifth, the Pension
Code treated disability (salary derived only) differently from retirement (age and years of service
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derived). Id. Sixth, the parties used the standard formula typically employed to divide a retirement
pension. Id. at 812. Considering these factors, this court concluded that the parties intended to
divide only the husband’s retirement pension, not his disability pension. Id. We further observed
that the husband could, at some future date, elect to receive a retirement pension. Id. at 813. We
reasoned that there was no agreement regarding when the husband would retire or when the wife
would be entitled to receive any of the husband’s benefits. Id. at 814.
¶ 32 Laurence argues that we should follow Belk. He points out that the trial court was obligated
to, and did, follow Belk. 3 While there is a decided similarity between Belk and this case, Laurence
overlooks a key and dispositive distinction: the husband in Belk was not of retirement age at the
time he was disabled, and the litigation followed hard on the heels of his accident, so there was no
cause to examine under what circumstances, if any, could the husband be deemed to be evading
his obligation to divide his retirement pension. In other words, Belk did not consider what would
happen 25 years along, which is the precise circumstance in this case. As such, while Belk may
have been helpful in interpreting the MSA at issue in this case (but Belk focused on two words
rather than the entirety of the instrument, an approach we disagree with here), the fact that the
pension recipient there was not, at the time of the litigation to enforce the dissolution judgment,
eligible to receive a retirement pension significantly undermines any guidance we could draw from
it.
¶ 33 Judith argues that we should follow Benson. In that case, the parties divorced in 1999, and
the judgment of dissolution provided that the wife was granted a “ ‘one-half interest in [the
3
Of course, whether the trial court was obligated to follow Belk is of no moment to our
review, because we review the court’s judgment, not its rationale. City of Chicago v. Holland, 206
Ill. 2d 480, 491 (2003).
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2022 IL App (2d) 210648
husband’s] retirement plan through [his employer, a fire department].’ ” Benson, 2015 IL App
(4th) 140682, ¶ 5. In 2008, the husband was injured and began to receive disability benefits. Id.
¶¶ 6-7. At the time he was injured, the husband was eligible to retire and to receive a retirement
pension. Id. ¶ 7.
¶ 34 At a hearing on the wife’s petition to enforce the dissolution judgment, the husband
testified that the parties had not agreed to an MSA and that the dissolution judgment was the
product of a contested trial. Id. ¶ 11. The husband also testified that disability benefits were not
mentioned during the divorce trial and that he received disability benefits, which he intended to
continue to receive for as long as he was allowed. Id. The wife introduced evidence from the fire
department’s pension board, which characterized the husband’s disability payments as a “ ‘pension
benefit,’ ” and a document describing the husband’s pension plan, which showed that the benefits
through the plan included disability benefits. Id. ¶ 13. The trial court awarded the wife her marital
portion of the husband’s benefits. Id. ¶ 15.
¶ 35 On appeal, the husband argued that he was receiving disability, not retirement, benefits and
that the judgment of dissolution did not address disability benefits. Id. ¶ 20. The court held that the
wife was clearly entitled to her interest in the husband’s retirement plan, but the question presented
was whether it was reasonable to consider the husband’s disability benefits as part of his retirement
plan. Id. ¶ 24. The court noted that the husband was immediately eligible to receive retirement
benefits at the time he began to receive his disability benefits. Id. ¶ 32. The court also noted that
the husband did not intend to stop receiving disability benefits or elect to receive retirement
benefits. Id. The court held that, while the benefits were labeled “disability benefits, they [were]
essentially retirement benefits” because they served not as income replacement “but as a substitute
for his retirement pension.” Id.
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¶ 36 Laurence offers two grounds on which to distinguish Benson. First, Laurence claims that
Benson is distinguishable because the dissolution judgment was a court-prompted ruling, not an
MSA. This offered distinction is risible. A trial court’s order is reviewed as any written instrument,
with an eye toward ascertaining and giving effect to the drafter’s intent. LB Steel, LLC v. Carlo
Steel Corp., 2018 IL App (1st) 153501, ¶ 28; In re Knazze, 259 Ill. App. 3d 410, 414 (1994). Thus,
there would be no difference in the interpretation of a dissolution judgment dividing marital assets
or an MSA dividing marital assets. Second, Laurence distinguishes Benson on the basis that the
court in that case considered a physical exhibit about the husband’s retirement plan to support its
reading of the provision at issue and, here, we have no exhibits. Again, this offered distinction is
a cosmetic difference, not a substantive difference. It says nothing about the quality or
persuasiveness of the reasoning employed by the court. We therefore reject Laurence’s claims of
distinction regarding Benson.
¶ 37 We find that Benson’s reasoning is persuasive. Although there is a factual distinction,
because Laurence was not eligible to retire at the time he began receiving disability benefits while
the husband in Benson was (Benson, 2015 IL App (4th) 140682, ¶ 32), we do not believe that
difference affects the central point that, at an age when Laurence is eligible to retire, his “disability
benefits do not serve as income replacement, but as a substitute for his retirement pension.” Id.
Here, Laurence is also elevating the label of his benefits over the substance of what they represent:
at his age, namely, beyond the threshold of eligibility to retire, the benefits are a substitute for a
retirement pension. Accordingly, we choose to follow Benson, not Belk, and we hold that the trial
court erred in failing to divide Laurence’s pension according to the formula set forth in the MSA.
¶ 38 Our conclusion is bolstered by Schurtz, 382 Ill. App. 3d 1123. In that case, the parties
executed an MSA dividing the husband’s “ ‘accrued retirement pension benefits as of September
16, 1993, if, as, and when received by him.’ ” Id. at 1124. In 2004, the husband became disabled
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and began receiving disability benefits. Id. The wife sought to divide the disability benefits
according to the provision in the MSA, and the trial court granted the wife’s petition. Id. at 1124-
25. The appellate court reasoned that, when a disabled ex-husband is not eligible to receive
retirement benefits, an MSA dividing retirement benefits should not be interpreted to grant the ex-
wife a portion of the ex-husband’s disability benefits. Id. at 1126. However, if the ex-husband is
eligible to receive age-related retirement benefits and is receiving disability payments instead, the
MSA dividing retirement benefits should be enforced to give the ex-wife a portion of the payments
the ex-husband is receiving. Id. The court emphasized that “[i]t is not the label of the payments
(i.e., disability or retirement) that controls.” Id. “ ‘To allow a technicality, i.e., a disability benefit
instead of regular retirement pay, to defeat the terms of the [MSA] could hardly have been the
intention of the parties.’ ” Id. (quoting In re Marriage of Marshall, 166 Ill. App. 3d 954, 962
(1988)). The disability benefits the husband was receiving did not replace his income, but, instead,
they served to replace his retirement pension. Id.
¶ 39 We believe that the reasoning of Schurtz applies with equal force here, notwithstanding
Laurence’s age when he became disabled versus the husband’s age in Schurtz. As the Schurtz court
reasoned, the label of the benefits should not be invoked to defeat the clear intent of the MSA to
divide Laurence’s retirement benefits when he became eligible to receive them. Id. Because
Laurence was eligible to retire when Judith sought to enforce the MSA, his benefits were no longer
serving as an income replacement but instead were replacing his retirement benefits. To hold
otherwise would be to elevate the form over the substance, and this is strongly disfavored. E.g.,
Benson, 2015 IL App (4th) 140682, ¶ 32; Schurtz, 382 Ill. App. 3d at 1126.
¶ 40 Laurence focuses on how the Pension Code treats retirement benefits differently from
disability benefits. Specifically, Laurence relies on Belk’s treatment of a disability pension versus
an age-and-service-related pension (i.e., a retirement pension). See Belk, 239 Ill. App. 3d at 811-
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2022 IL App (2d) 210648
12 (the Pension Code provides for two separate and distinct pensions: one for age and length of
service, and the other for when a participant becomes disabled); see also 40 ILCS 5/4-109, 4-110
(West 1996) (age-related retirement pension and line-of-duty disability pension, respectively). The
existence of distinct types of pensions, however, does not provide an answer to the question
presented here—namely, what happens when the recipient of a disability pension becomes eligible
to receive a retirement pension that he or she has agreed to divide pursuant to an MSA?
¶ 41 A close consideration of the structure of the relevant provisions of the Pension Code
suggests the answer to the central question presented here. Section 4-109 deals with the age-related
retirement pension. 40 ILCS 5/4-109 (West 1996). Section 4-110 deals with the line-of-duty
disability pension. Id. § 4-110. Both types of pensions receive annual increases pursuant to section
4-109.1. Id. § 4-109.1. Specifically, subsections (b) and (c) provide:
“(b) The monthly pension of a firefighter who retired from service with 20 or more
years of service, on or before July 1, 1971, shall be increased, in January of the year
following the year of attaining age 65 or in January 1972, if then over age 65, by 2% of the
originally granted monthly pension, for each year the firefighter received pension
payments. In each January thereafter, he or she shall receive an additional increase of 2%
of the original monthly pension. Effective January 1976, the rate of the annual increase
shall be 3%.
(c) The monthly pension of a firefighter who is receiving a disability pension under
this Article shall be increased, in January of the year following the year the firefighter
attains age 60, or in January 1974, if then over age 60, by 2% of the originally granted
monthly pension for each year he or she received pension payments. In each January
thereafter, the firefighter shall receive an additional increase of 2% of the original monthly
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2022 IL App (2d) 210648
pension. Effective January 1976, the rate of the annual increase shall be 3%.” Id. § 4-
109.1(b), (c).
¶ 42 Under the Pension Code, Laurence was eligible to receive his retirement pension when he
attained the age of 60. Under section 4-109.1(c), Laurence, who is receiving a disability pension,
began to receive an annual increase of 3% to his disability pension, which corresponds to the
annual increase for the retirement pension. This suggests that, upon attaining eligibility to receive
the age-related retirement pension, the disability pension is contemplated to become a substitute
for a retirement pension and no longer functions as income replacement. Thus, structurally, the
Pension Code provides a point at which the income replacement function of the disability pension
transitions to a retirement pension substitute that receives an annual increase fully equivalent to
the basic terms of the age-related retirement pension.
¶ 43 Even though Belk recognized that there are two types of pensions provided for recipients
under the Pension Code, the structure of the applicable provisions in the Pension Code suggests
that the Pension Code itself contemplated the potential transition from the income replacement of
a disability pension to a substitute for an age-related retirement pension as the recipient continues
to age. Laurence’s reliance on Belk, therefore, is unavailing.
¶ 44 Belk and Laurence’s argument fail to consider what happens as a disabled pension recipient
ages and becomes eligible for retirement benefits, where the parties have agreed or have been
ordered to apportion the age-related retirement benefits. In this void, we find Benson and Schurtz,
along with the structure of the Pension Code, to be both instructive and persuasive. Laurence offers
no substantial thoughts on this issue, and his attempt to distinguish Benson is unsuccessful, to say
the least. Instead, Laurence focuses on the contract-interpretive aspects of Belk without
considering the central issue here, which is what happens when benefits labeled as disability
benefits stop functioning as income replacement and instead replace the recipient’s retirement
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2022 IL App (2d) 210648
benefits? That question is persuasively answered by Benson, Schurtz, and the Pension Code itself.
Accordingly, we hold that the trial court erred in denying Judith’s petition and reverse its judgment.
Due to the court’s erroneous judgment, the issue of when Laurence’s disability benefits ceased
replacing his income and instead transitioned into a substitute for his retirement pension was not
litigated. We therefore remand the matter to the trial court to determine this question and for further
proceedings as necessary consistent with our judgment here.
¶ 45 III. CONCLUSION
¶ 46 For the foregoing reasons, the judgment of the circuit court of Lake County is reversed and
the cause remanded for further proceedings.
¶ 47 Reversed and remanded.
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In re Marriage of Grandt, 2022 IL App (2d) 210648
Decision Under Review: Appeal from the Circuit Court of Lake County, No. 96-D-1537;
the Hon. Stephen M. DeRue, Judge, presiding.
Attorneys Matthew Kaplan, of Libertyville, for appellant.
for
Appellant:
Attorneys Dwayne Douglas, of Douglas Law PC, of Bannockburn, for
for appellee.
Appellee:
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https://www.courtlistener.com/api/rest/v3/opinions/8482629/ | USCA4 Appeal: 21-4547 Doc: 36 Filed: 11/08/2022 Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4547
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ALLEN LAMIN,
Defendant – Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paula Xinis, District Judge. (8:20−cr−00044−PX−1)
Submitted: October 3, 2022 Decided: November 8, 2022
Before WILKINSON and QUATTLEBAUM, Circuit Judges, and FLOYD, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, Cullen
MacBeth, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Erek L. Barron, United States Attorney,
Baltimore, Maryland, Rajeev R. Raghavan, Assistant United States Attorney, Jennifer L.
Wine, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 21-4547 Doc: 36 Filed: 11/08/2022 Pg: 2 of 6
PER CURIAM:
After over a year of stealing blank money orders from United States Post Offices,
forging fake amounts on them, and then depositing them under fake identities and fictitious
entities, Allen Lamin was arrested and pled guilty to five counts of bank fraud, in violation
of 18 U.S.C. § 1344. The district court found that these fraudulent acts involved
“sophisticated means,” so it imposed a sentence enhancement under U.S.S.G.
§ 2B1.1(b)(10)(C). Lamin was sentenced to 84 months in prison, and the district court
entered a forfeiture order of $62,900 against him. He now appeals the sentence
enhancement, asserting that his acts of fraud were no more intricate or complex than typical
bank fraud, and the forfeiture order, claiming that the government introduced no evidence
that Lamin actually obtained the funds at issue. The district court did not err in either
respect, so we affirm.
I.
Between February 2019 and April 2020, Allen Lamin repeatedly committed bank
fraud. His modus operandi was to enter United States Post Offices, steal blank postal
money orders, alter them by using a printer to affix legitimate issue dates and USPS unit
numbers, and then negotiate with several financial institutions to deposit the money orders
under false names, fictitious entities, and stolen identities. Lamin often forged the money
orders to be worth between $800 and $1,000. Once the illicit funds had been deposited,
Lamin would use the accounts for personal use. See United States v. Lamin, No. CR PX-
20-44, 2021 WL 1265232 at *1 (D. Md. Apr. 6, 2021). Lamin began his criminal enterprise
in Maryland, but was later arrested in Texas, where he fled to avoid law enforcement and
2
USCA4 Appeal: 21-4547 Doc: 36 Filed: 11/08/2022 Pg: 3 of 6
continue defrauding banks. Id. After stealing blank orders from roughly half a dozen post
offices, altering hundreds of money orders, and depositing them across several financial
institutions, Lamin raked in hundreds of thousands of dollars in ill-gotten gains.
Lamin was charged with five counts of bank fraud in violation of 18 U.S.C. § 1344,
to which he pled guilty. At sentencing, the district court applied a 12-level enhancement
because the loss attributable to Lamin was more than $250,000, a 2-level enhancement
because Lamin’s offense involved 10 or more victims, and a 2-level enhancement under
U.S.S.G. § 2B1.1(b)(10)(C) because Lamin’s offense involved sophisticated means. J.A.
282–94. Lamin also received a 2-level acceptance of responsibility reduction. The district
court calculated a final offense level of 21 and sentenced him to a within-Guidelines
sentence of 84 months in prison. The district court also entered a $62,900 forfeiture money
order against Lamin, which represented the proceeds Lamin had obtained as a result of his
scheme to defraud. J.A. 111.
II.
Lamin appeals on two issues. First, he challenges the sentence enhancement under
U.S.S.G. § 2B1.1(b)(10)(C), arguing that his offense did not involve sophisticated means.
Second, Lamin contests the district court’s forfeiture order of $62,900, asserting that the
government failed to show that Lamin actually acquired that money after it was deposited.
We address each issue in turn.
A.
“Whether a defendant’s conduct involved sophisticated means is a factual inquiry
that we review for clear error.” United States v. Savage, 885 F.3d 212, 228 (4th Cir. 2018)
3
USCA4 Appeal: 21-4547 Doc: 36 Filed: 11/08/2022 Pg: 4 of 6
(quoting United States v. White, 850 F.3d 667, 675 (4th Cir. 2017)). The bank fraud
guidelines apply a 2-level enhancement for offenses involving “sophisticated means” when
the “defendant intentionally engaged in or caused the conduct constituting sophisticated
means.” U.S.S.G. § 2B1.1(b)(10)(C). For the means to be sophisticated, they must be
“especially complex or especially intricate.” U.S.S.G. § 2B1.1, cmt. n.9(B). This Court has
held that the enhancement is appropriate “when there is proof of complexity beyond the
minimum conduct required to establish” a bank fraud violation “in its simplest form.”
Savage, 885 F.3d at 228 (internal quotation marks omitted).
Here, Lamin’s offenses went well beyond simple bank fraud. Lamin’s behavior for
over a year evinced a sophisticated and intricate method of meticulously altering blank
money orders and negotiating with numerous financial institutions to deposit the funds
under a web of fake names, stolen identities, and fictious entities. Lamin argues that these
actions were quite ordinary, and the fact that he often repeated this process does not
increase the level of sophistication.
Lamin’s argument goes against our clear guidance: Courts are to weigh the
“cumulative impact of the criminal conduct, for the total scheme may be sophisticated in
the way all the steps were linked together.” United States v. Jinwright, 683 F.3d 471, 486
(4th Cir. 2012) (internal quotation marks omitted). Lamin executed a scheme involving
various post offices, at least ten victims, a handful of fictitious entities, numerous bank
accounts, several financial institutions, and multiple states for approximately 14 months.
What might appear simple in isolation here becomes complex in combination. Thus, the
district court did not clearly err in its finding of “sophisticated means.”
4
USCA4 Appeal: 21-4547 Doc: 36 Filed: 11/08/2022 Pg: 5 of 6
B.
Regarding whether we must reverse the $62,900 forfeiture order, there is a dispute
over the standard of review. Lamin argues that he properly challenged the order at the
district court level, and we should therefore review this issue de novo. The government
asserts that Lamin failed to raise it before the district court, and we should therefore review
this issue for plain error. The standard of review is of no consequence, however, because
the district court did not err in any respect.
In imposing a sentence for bank fraud, the district court “shall order that the person
forfeit to the United States any property constituting, or derived from, proceeds the person
obtained directly or indirectly, as a result of such violation.” 18 U.S.C. § 982(a)(2)(A). The
district court “must determine the amount of money that the defendant will be ordered to
pay.” Fed. R. Crim. P. 32.2(b)(1)(A). District courts are “afforded broad discretion in
calculating illicit gains based on the circumstances of a case.” United States v. Walters,
910 F.3d 11, 32 (2d Cir. 2018). To establish whether a defendant’s illicit gains are subject
to forfeiture, the district court must ask whether the defendant had “dominion and control”
over the money at issue. In re Bryson, 406 F.3d 284, 291 (4th Cir. 2005).
Applying this test, the district court found that Lamin’s ability to make deposits into
various bank accounts demonstrated “dominion and control” over the money at issue, for
it showed that Lamin had “obtained the proceeds of a crime when he put[] the money” into
various bank accounts. J.A. 330. Relying on Honeycutt v. United States, Lamin argues that
the government did not prove he ever withdrew the funds, and thus it cannot show he
“actually acquired” that money. 137 S. Ct. 1626, 1635 (2017). But Lamin’s reliance on
5
USCA4 Appeal: 21-4547 Doc: 36 Filed: 11/08/2022 Pg: 6 of 6
Honeycutt is misguided. Rather than undermine the district court’s findings, Honeycutt
confirms that a defendant obtains property for the purposes of forfeiture when he “come[s]
into possession of” or “acquire[s]” it. Id. at 1632. Here, the government established—and
Lamin admits—that he deposited $62,900 worth of money orders into various bank
accounts following his acts of bank fraud. Thus, he admits that he acquired or came into
possession of $62,900. Therefore, the district court did not err in issuing the $62,900
forfeiture order.
Its judgment is therefore affirmed.
AFFIRMED
6 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482641/ | 2022 IL App (1st) 201343-U
THIRD DIVISION
November 9, 2022
No. 1-20-1343
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 12 CR 19150
)
JEROME ADAMS, ) Honorable
) James Michael Obbish,
Defendant-Appellant. ) Judge Presiding.
_____________________________________________________________________________
PRESIDING JUSTICE McBRIDE delivered the judgment of the court.
Justices Gordon and Ellis concurred in the judgment.
ORDER
¶1 Held: Affirming the trial court’s denial of leave to file a successive postconviction
petition where defendant’s claims were barred by res judicata and waiver and
otherwise lacked merit.
¶2 Following a bench trial, defendant, Jerome Adams, was convicted of attempted first-
degree murder and sentenced to 10 years’ imprisonment, plus a mandatory 25-year add on for
personally discharging a firearm during the commission of the offense. This appeal arises from
No. 20-1343
the denial of defendant’s motions for leave to file a successive postconviction petition and for
substitution of judge.
¶3 The record shows that defendant was charged by indictment with five counts of
attempted first-degree murder and one count of aggravated battery.
¶4 The evidence at trial established that on September 7, 2012, defendant was living at a
home on South Spaulding Street in Chicago with his girlfriend, Carolyn Webster, and her five
children. The victim, 17-year-old Michael Gray, was a friend of one of Webster’s sons and also
lived at the home. At the time of the offense, Webster was five months pregnant with defendant’s
child, and, at the time of her trial testimony, Webster had given birth to their child.
¶5 Webster testified at trial that in the late evening and early morning hours of September 6
and 7, 2012, several people were at the house drinking on the front porch. At some point,
defendant took Webster’s drink and threw it across the street. Webster testified that she was
“mad” so she ran into the house and grabbed a burner grate from her stove. Defendant followed
Webster inside and, in front of the victim, Webster hit defendant on his shoulder with the burner
grate once or twice. Defendant then took the burner grate from Webster, pushed her down, and
hit her in her face twice. Webster testified that the victim grabbed defendant to stop him from
hitting Webster, and then defendant left, walking out the back door of the house.
¶6 Webster testified that she sat on her couch while the victim stood by the stove in the
kitchen. Shortly thereafter, defendant came back into the house through the front door. Webster
saw defendant talking to the victim, and then the victim and defendant started “tussling.” The
victim pushed defendant onto the couch. Webster testified at trial that they were fighting over a
gun, and she “guess[ed]” that defendant had the gun. Defendant was standing on the couch and
they were “tussling over the gun.” Webster “tried to tell them stop,” and the victim said, “what
2
No. 20-1343
are you doing, what are you doing.” Defendant then said, “stop, stop, before this gun go[es] off;
stop before this gun go[es] off.” Webster further testified that defendant asked her to “step back
before this gun go[es] off.” Webster stepped back, and then heard a shot.
¶7 Webster testified that she did not see who fired the shot, but she saw the victim fall to the
ground. Prior to the shooting, she saw both defendant and the victim with the gun, but she saw
defendant with the gun first. Webster testified that after the gunshot, she did not know where
defendant went as she was not paying attention to him at that time.
¶8 Webster further testified that the police came to her residence and the victim was taken
away in an ambulance. Webster went to a police station and gave a videorecorded statement to
an assistant state’s attorney (ASA). At trial, Webster acknowledged that in her statement, she
told the ASA that when defendant returned to the house, he came in the front door and pointed a
gun at the victim. Webster could not recall if she told the ASA that defendant said to the victim,
“you want to be in my business, stay out of my business.” Webster also acknowledged that
during the videorecorded statement, she reenacted the shooting by standing up and playing the
role of the victim, while the detective played defendant. The detective stood on a chair because
Webster told him that defendant was standing on the couch. Webster also demonstrated that the
victim put his hands out in an effort to push away the gun, and that the victim was facing
defendant straight on.
¶9 During her trial testimony, Webster recanted portions of her videorecorded statement.
She testified that at the time of the shooting, and during the videorecorded interview, she was
drunk and that the shooting “didn’t happen” the way she demonstrated. Webster testified that
they were drinking “three half gallons of vodka,” gin, and some beers, and that she personally
drank about “a bottle and a half.” She further stated that she was at the police station for hours
3
No. 20-1343
and did not get any sleep. Webster testified that she was angry at defendant because they had just
been in a physical altercation.
¶ 10 Webster testified generally that she did not have an independent recollection of the
interview. Webster testified that she did not remember if she told the ASA what the victim said
right before he was shot. She did not remember telling the ASA that after the shooting, defendant
called her a “b***” and walked out the front door. Webster admitted that the ASA asked her if
she was under the influence of drugs or alcohol at the time of her statement and she responded
that she was not. Webster stated that the victim had stayed with her before, and that his mother
had kicked him out of the house for lying and stealing from her. She stated that she cares for the
victim and was upset after seeing him shot.
¶ 11 On redirect, Webster testified that she had visited defendant between 10 and 20 times
since the shooting and she had not visited the victim.
¶ 12 Shakira Johnson testified that she was 16 years old and Webster’s niece. Shakira’s
mother is Sherita Mullen, and Shakira had a 14-year-old sister named Shamya. Shakira testified
that she knew Webster’s son Tyberius, and his friend, the victim. On the night of the shooting,
Shakira, her mother, and her sister were living with Webster, and Shakira knew defendant
because he was dating Webster.
¶ 13 Shakira testified that between midnight and 12:45 a.m., she was outside on the front
porch talking on the phone. The victim, defendant, and Webster were also at the residence.
Shakira could hear defendant and Webster arguing inside the house at that time. The victim came
out on the porch, spoke to Shakira, and then went back inside the house. As Shakira continued to
talk on the phone, she eventually walked out to, and sat on, the curb on the street. Shakira then
heard a gunshot coming from inside the residence. After the gunshot, Shakira saw defendant
4
No. 20-1343
running through an alley behind the house holding a gun. Shakira watched defendant run out of
the alley and onto Spaulding Avenue, and then she went into the house. When Shakira walked
into the house, she saw Webster crying, and she saw the victim on the floor. Shakira testified that
the victim looked at her and said, “help me, help me,” and Shakira called the police. Shakira
could see that the victim had been shot in the head. Around 3:35 a.m., Shakira spoke with
detectives at the police station, with her mother present, and identified a photograph of
defendant. Shakira never saw the victim, or anyone other than defendant, with a gun that night.
¶ 14 Shamya Johnson, Shakira’s sister, also testified at trial. Shamya testified that she was 14
years old, that Webster is her aunt, and that she knows the victim and defendant. On September
7, 2012, Shamya was staying at the home on South Spaulding with her mom and sister. Just
before midnight, Shamya was upstairs sleeping along with her little sister, Sharissa, and her
cousins. Shamya’s sister Shakira was downstairs. Shamya testified that she heard the victim yell,
“don’t shoot,” and Webster say “no, no, stop,” just before a gunshot. Shamya came downstairs,
saw Webster crying, and saw the victim on the ground with blood. She further testified that
defendant was in the house that night before she went to bed, but he was not there when she
came downstairs.
¶ 15 The victim testified that on September 7, 2012, he was at Webster’s home, along with
defendant, Shakira, Shamya and others. Around midnight, the victim was playing cards with
Webster, defendant, and Sherita Mullen. During a card game, Webster and defendant got into an
argument and defendant threw Webster’s drink on the ground. Defendant and Webster started
arguing and defendant threw Webster to the ground.
¶ 16 The victim testified that defendant then walked into the kitchen and grabbed a metal
burner from the stove. The victim saw defendant raise his hand to strike Webster with the metal
5
No. 20-1343
burner. Defendant hit Webster and the victim “rushed over” and put his hand out to stop him.
Defendant then went to the closet and retrieved a pole, which he swung at Webster, and then
defendant ran out the back door.
¶ 17 The victim sat on the couch and asked Webster “if she was all right,” and Webster replied
affirmatively. At that point, defendant walked in the back door with a big black metal gun in his
hand. The victim testified that the last thing he remembered was defendant walking toward him
with the gun, before he woke up in the hospital and learned he had been shot. The victim testified
that he was shot in the skull slightly behind and above his right ear. He learned that he had
undergone three surgeries, including removing part of his skull. The victim testified that he had
to relearn things after the shooting, including how to walk and talk, and that his memory is
“pretty bad.”
¶ 18 Tyesha Sanders, Webster’s sister, testified that she was at the house the night of the
shooting. While she was upstairs that night, she heard “a little argument,” and recognized the
voices of defendant, Webster and the victim. Sanders heard Webster say “why, Jerome? Why,
Jerome?” and defendant say, “stay out of my business.” Sanders then heard the victim say
“please, man, put that down,” and Webster say, “put that down.” Sanders also heard Webster say
“Why, Jerome? Why did you do that?” During the argument, Sanders heard a gunshot. She ran
downstairs and saw Webster crying and drinking. The victim was on the floor with his feet on
the couch, and Sanders saw that he had been shot in the head. Sanders identified defendant to
police as the person whose voice she heard in the house before the gunshot.
¶ 19 On cross-examination, Sanders acknowledged that she had been drinking for six hours at
the time of the shooting. Sanders also acknowledged that she did not initially tell the detective
that she heard defendant say “stay out of my business,” or that the victim said “please stop.”
6
No. 20-1343
Sanders also testified that she heard defendant call Webster a “bogus b***.” Sanders believed
that she heard two gunshots, and acknowledged that she told the detective that she heard three
gunshots.
¶ 20 Tomeshah Patterson testified that she was 15 years old at the time of her testimony, and
was 13 years old on the night of the shooting. On September 7, 2012, Tomeshah was at the home
with defendant, the victim, Webster and others. Around midnight on the night of the shooting,
people were drinking and playing cards. Tomesha testified that she was running between the
upstairs and downstairs, checking on the younger children and keeping them away from the
adults downstairs. At some point, Tomeshah saw defendant and Webster arguing, but she did not
pay attention to the argument at that time. Tomeshah went back upstairs and heard more arguing
and what she thought was shoving against the wall and “big banging.” About ten minutes later,
Tomeshah heard a “big boom” which she later learned was a gunshot. Tomeshah raced
downstairs and saw the victim on the floor and defendant “running out the back door.” From the
front window she could see defendant running from the back toward the front of the house onto
Spaulding. Tomeshah saw blood coming from the victim’s head, and she called the police. On
cross-examination, Tomeshah acknowledged that she talked to a detective after the shooting, and
that she did not tell the detective that she saw defendant running out the back door or outside
from the front window.
¶ 21 Chicago Police Officer Michael Curry testified that he responded to the shooting at
approximately 12:44 a.m. on September 7, 2012. When he arrived, he saw the victim bleeding on
the floor and made sure the ambulance was on the way. There were four adults and several
young children at the home. Officer Curry attempted to secure the scene and determined that the
7
No. 20-1343
perpetrator was not present. Thereafter, an ambulance arrived and transported the victim to the
hospital.
¶ 22 ASA Kevin DeBoni testified that he interviewed Webster, and that she consented to
having her statement video recorded. ASA DeBoni testified that Webster did not appear to be
intoxicated, and she told ASA DeBoni that she was not intoxicated when she gave her
videorecorded statement. The statement was published in court and admitted into evidence.
¶ 23 The parties stipulated that Dr. Michael Sturgill would testify he was an emergency room
doctor at Mount Sinai Hospital and on September 7, 2012, he treated the victim, who was
suffering from a gunshot wound to the right hemisphere of the brain. The victim was intubated
and taken for surgery. The doctor observed from a CAT scan of the victim’s head that there was
defused swelling with a bullet in the mid temporal lobe. There was a subarachnoid hemorrhage
and subdural hematoma with a fracture of the squamous orbital bone with multiple bone
fragments in the anterior temporal lobe. Dr. Sturgill would also testify that blood was taken from
the victim, and that the bloodwork showed no alcohol, cannabis, cocaine, or other narcotics in
the victim’s system. The surgery involved a hemicraniotomy and possible temporal lobotomy as
a lifesaving measure. The bullet was removed, but bullet fragments remained in the right
hemisphere of the brain. The doctor would further testify that the temporal lobotomy involved
removing the skull bone and putting it in a flap in the abdomen, and another surgery removed the
skull bone flap and placed it back in the head approximately 22 days later, after the swelling
from the injury had gone down. The victim’s traumatic brain injury resulted in the victim being
unable to sit or turn in bed, dress himself, or attend to personal hygiene. The victim’s ability to
communicate in both speech and writing was diminished. The victim remained in the hospital
from September 7 until November 15, 2012, when he was transferred to Schwab Rehab Institute
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No. 20-1343
where he remained until December 2012. The victim was then transferred to Carbondale Neuro
Restorative Rehab where he remained until December 2013.
¶ 24 The parties further stipulated that the victim was treated for a brain injury, and that he
suffers from grand mal seizure disorder and a loss of memory.
¶ 25 The State rested, and defendant’s motion for directed verdict was denied.
¶ 26 The defense proceeded by stipulation. The parties stipulated that if Detective Steve Soria
were called to testify, he would state that he interviewed Shakira with her mother, and Shakira
never told the detective that she saw defendant running in the alley behind the house with a gun
after the shots or that she heard Webster and defendant arguing before the shooting. Detective
Soria would also testify that he interviewed Shamya with her mother, and Shamya never told the
detective that she heard Webster say “no, no, stop,” while she was upstairs before the gunshot.
¶ 27 The parties also stipulated that Detective Wilbourn would testify that he interviewed
Shakira and she never told the detective that she saw defendant running in the alley behind the
house with a gun after she heard the shots. He would further testify that Shakira never told the
detective that she heard defendant and Webster arguing before the shooting. However, she did
tell the detective that she heard them arguing earlier, around 10 or 11 p.m. Detective Wilbourn
would also testify that he was present for an electronically recorded interview with Sanders and
during that recorded interview, she did not tell the detective or ASA that she heard the victim say
defendant’s name and “please.”
¶ 28 Additionally, the parties stipulated that if called to testify, Assistant Public Defender
Randilin Peterson would testify that she interviewed the victim on January 2, 2014. The victim
stated that he tried to break up a fight between defendant and Webster and that defendant pulled
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No. 20-1343
out a gun and shot him. The victim did not state that defendant got a pole out of the closet or that
defendant left between the fight with Webster and the shooting.
¶ 29 Finally, the parties stipulated that on November 13, 2013, the victim was arrested for
misdemeanor battery. The case was dismissed and the Cook County State’s Attorney’s Office
“provided him no benefit in exchange for the dismissal of the case.” Following the above
stipulations, the court admonished defendant regarding his right to testify, and defendant
informed the court that he was choosing not to testify. Defendant indicated that he understood his
right, that the decision was his own, and that no one threatened, forced, or promised him
anything relating to that decision. The defense rested.
¶ 30 In closing argument, the State argued that the evidence was clear that defendant
committed attempted murder, specifically noting evidence that defendant left the home and
returned with a gun; that defendant, the victim and Webster made certain statements immediately
preceding and following the gunshot; and that defendant fled from the scene. Defense counsel
argued that there was not enough evidence to show that defendant intended to kill the victim.
Instead, counsel characterized the shooting as a “tragic accident,” contending that the gun went
off accidentally during a struggle between defendant and the victim.
¶ 31 The trial court took the matter under advisement to review all the evidence.
¶ 32 The next day, the court found defendant guilty on all charges. The trial court found that
the most “significant and most important witness in the case” was Webster. It noted that she
testified in court “to a set of events that she wasn’t sure who had the firearm, that the firearm
prior to the shooting had been in the possession of both” defendant and the victim. The court
noted, however, that Webster had given a prior videorecorded statement, and that statement was
“significantly different than the *** testimony she provided in open court.” The court explained:
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No. 20-1343
“I continued the case until today to rule so that I could consider that out-
of-court statement that was introduced late yesterday afternoon from Ms.
Webster. After reviewing that statement along with all of the other evidence that
was introduced, I believe the State has in fact proven [defendant] guilty of the
offense of attempt[ed] first degree murder *** and that during the commission of
that murder he personally discharged a firearm that proximately caused great
bodily harm to [the victim].
***
The basis of that is that I think and believe that the statement that Ms.
Webster made the day of this offense was far more credible than her testimony
that she gave earlier in January and that I believe that testimony supported proof
beyond a reasonable doubt that at the time the defendant fired the gun he intended
to kill [the victim].”
¶ 33 The trial court went on to explain that the evidence showed that there had been an
argument between defendant and Webster, both of whom were not “particularly innocent here.”
The court found, however, that the victim attempted to intervene and stop the incident from
escalating. At that point, defendant left the apartment and returned, brandishing a firearm and
pointing it at the victim. The court noted that even if there was a struggle over the gun, the victim
was justified in attempting to prevent himself from being shot. The court additionally pointed to
Webster’s videorecorded statement in which she indicated that defendant freed his hand which
was holding the gun, put the gun to the victim’s head, and pulled the trigger. The court
additionally noted that defendant did not express remorse after shooting the victim, and he did
11
No. 20-1343
not “stay around” or wait for medical personnel. Based on all of the above, the court found that
the evidence demonstrated defendant’s “intent to kill.”
¶ 34 The trial court also specifically found based on its review of the videorecorded statement,
that Webster did not appear to be intoxicated at the time she made the statement. The court found
the videorecorded statement to be “far more credible than her testimony in open court,” in part
because the statement was given much closer in time to the relevant events. The court also found
that Webster’s trial testimony “demonstrated clearly that there was a bias trying to help
defendant,” specifically noting that she had visited defendant multiple times in the Cook County
jail.
¶ 35 Defendant filed a motion to reconsider and a motion for new trial. Defendant argued that
his guilt or innocence relied on “whether or not he intentionally shot” the victim, and that the
eyewitness testimony of Webster could not be relied upon to establish guilt beyond a reasonable
doubt. During argument on the motion, defense counsel stated that the “only difference[s] in her
testimony between here in court and the video testimony” was “who pulled the trigger,” and
whether defendant “was able to get his hand away during the struggle before the gun went off
and whether he actually pulled the trigger intentionally.” Defense counsel outlined several
reasons why the circuit court should not believe Webster’s videorecorded statement, including
that she was drunk, she was upset regarding what she had witnessed, and she was angry at
defendant because of their argument.
¶ 36 The State argued that Webster “had more incentive to be telling the truth on the evening
that she gave the” videorecorded statement, than she did “when she comes in here a year and-a-
half, two years later,” particularly where Webster had since given birth to defendant’s child and
continued to visit him. The State argued that it was clear from Webster’s videorecorded
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No. 20-1343
statement that “she was not intoxicated, she was not sleep deprived,” and she was not repeating
“lines fed to her by somebody else[.]” The prosecutor also noted that other witnesses
corroborated Webster’s videorecorded statement, and that defendant’s flight demonstrated his
consciousness of guilt.
¶ 37 The trial court denied the motion for a new trial, finding that the evidence was strong.
The trial court noted that it had listened carefully to the testimony of all the witnesses,
particularly that of Webster. Specifically, the trial court stated:
“[I]t was very clear in my mind after listening to [Webster] testify, listening to her
being cross-examined, listening to and watching the video more than once, I saw
it several times, is that there was one rather credible version of what occurred
here, and that was the version that was on the video[.] *** [When] she testified in
open court, she was trying to shield [defendant] from what he had done and from
what she had observed. Motivation for that apparently was that they had a long-
term relationship and she had a child with [defendant], she continued to see him
when he was in the Department of Corrections. So the sort of shock, I guess, of
what she had seen and realized what [defendant] was capable of had worn off and
I guess she was considering her long-term future would be better with [defendant]
not convicted of such a serious offense, and so she chose to come into court and
give very misleading testimony and testimony that was not credible.”
¶ 38 The trial court again summarized that the evidence showed there was an argument
between defendant and Webster, and that the victim tried to prevent a physical altercation
between them. The court stated that defendant “completely lost his temper” and felt that
“violence was necessary to protect his manhood,” so he left the apartment, returned with a gun,
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No. 20-1343
and aimed it at the victim. The court agreed there was a “struggle,” but that the victim was
entitled to defend himself, and “at one point in the struggle, *** [defendant] was now again
completely in control of the weapon, [and] he fires a bullet from that gun into the young man’s
head.” The court explained:
“[I]f this was an accident, if this was something other than what it was, why
wouldn’t you maybe try to stay around and try to help somebody? What’s more
important, that you not get caught with a gun, you not get arrested or something,
or that maybe you try to help somebody that you just put a bullet in their brain
unless, you know, that was what you wanted?”
¶ 39 The motion for a new trial was denied and the parties proceeded to sentencing. In
aggravation, the State noted in particular the extent of the victim’s injuries and requested a
sentence of 40 years’ imprisonment. The defense requested that the court impose the minimum
sentence of 31 years’ imprisonment—6 years on the attempted murder conviction, plus a
mandatory 25-year add on for personally discharging the firearm—which was a “significant”
amount of time. In allocution, defendant stated that he was “willing to take responsibility for
[his] actions, *** even though [the shooting] was an accident.” Defendant acknowledged that he
came back with a gun, and apologized to the victim’s family.
¶ 40 The trial court acknowledged that the minimum term of 31 years was “lengthy” and that
the trial court had given minimum sentences in other situations where, unlike here, the defendant
did not have a criminal background or where the victim had not been shot or suffered injuries.
The court concluded that the bare minimum was not appropriate in this case, and that the most
appropriate sentence was 35 years’ imprisonment—10 years for the attempted murder, plus the
mandatory 25-year firearm enhancement.
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No. 20-1343
¶ 41 Defendant filed a timely notice of direct appeal on May 19, 2014. The State Appellate
Defender submitted an appellate brief on defendant’s behalf in November 2015, arguing that the
court erred in its sentencing decision based on a comparison to other offenders who had received
statutory minimum sentences. After the State filed its response brief in February 2016, defendant
moved to voluntarily dismiss his direct appeal. This court granted his request on February 25,
2016.
¶ 42 Meanwhile, both before and after the resolution of his direct appeal, defendant filed
several collateral challenges to his conviction and sentence.
¶ 43 On August 21, 2014, defendant filed a document entitled “Petition for Declaratory
Relief,” asserting that the statute providing for mandatory sentence enhancements based on the
use of a firearm in the commission of an offense (720 ILCS 5/8-4(c)(l)(B), (C), (D) (West
2012)), violated his due process rights and the proportionate penalties clause; was
unconstitutionally vague; and constituted an impermissible double enhancement. The circuit
court denied his petition on September 30, 2014, finding it frivolous and concluding that the
mandatory sentencing enhancement had been routinely held constitutional on all the challenged
grounds. Defendant filed a notice of appeal on November 6, 2014, which was denied due to
untimeliness.
¶ 44 On October 22, 2014, defendant filed another document entitled “Petition for Declaratory
Relief,” pursuant to 735 ILCS 5/2-701, raising the same constitutional arguments regarding his
25-year mandatory sentence enhancement. The circuit court denied his petition, and defendant
did not appeal.
¶ 45 In February of 2015, defendant filed a petition entitled, “Petition to Quash Complaint &
Dismiss Indictment/Relief of Judgement,” seeking relief pursuant to section 2-1401 of the Code
15
No. 20-1343
of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2014)). Defendant asserted that his
indictment was void because the complaint against him was forged and because his indictment
was not signed by the foreman of the grand jury in compliance with 725 ILCS 5/111-3 (West
2012). Defendant further asserted that because of these defects, the court lacked both personal
and subject matter jurisdiction. On May 29, 2015, the court entered a written order finding
defendant’s claims to be without factual basis and without merit. The court concluded that
defendant failed to show a cause for relief under section 2-1401 of the Code. Defendant did not
appeal.
¶ 46 On August 7, 2015, defendant again filed a petition seeking relief from judgment
pursuant to section 2-1401 of the Code, (735 ILCS 5/2-1401 (West 2014)), raising identical
claims. The circuit court denied his petition on October 9, 2015, finding it frivolous and without
merit. Defendant did not appeal.
¶ 47 On January 20, 2016, defendant filed an initial postconviction petition, which he
subsequently amended on February 16, 2016. Defendant raised several issues, including, among
other things, that his appellate counsel was ineffective for failing to challenge certain issues on
appeal, specifically that the complaint was “forged,” that the indictment was “based solely on the
fraudulent, fatally defective, null and void complaint,” and that the trial court “lacked personal
jurisdiction over defendant” to bring him to trial. Defendant also maintained that appellate
counsel should have challenged the sufficiency of the evidence where the “primary evidence
against” him was “Webster’s incredible, uncorroborated prior inconsistent statement,” and that
the firearm enhancement applied to his sentence was an “unlawful double enhancement.”
Defendant further argued that appellate counsel was ineffective for failing to challenge the
admission of Webster’s videorecorded testimony as substantive evidence, because it “violated
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No. 20-1343
his *** due process rights” where there was “no ample corroborating evidence of the statement’s
reliability.” Additionally, defendant contended that trial counsel rendered ineffective assistance
for failing to move to quash his arrest and the complaint, for failing to object to the introduction
of Webster’s videorecorded statement, and for failing to argue for a conviction on a lesser
offense of reckless conduct. Defendant also contended that trial counsel was ineffective for
failing to introduce prior consistent statements that Webster gave to defense counsel’s
investigator on November 1 and December 6, 2012. Defendant argued that Webster’s statements
on those dates were consistent with her trial testimony and would have refuted the suggestion
that her trial testimony was recently fabricated. Finally, defendant contended that the mandatory
firearm enhancement was unconstitutional, as it violated “double jeopardy,” was an “unlawful
double enhancement,” and was not included in his indictment.
¶ 48 In support of defendant’s amended petition, defendant attached his own affidavit.
Defendant averred that before trial, his counsel informed him that the State had disclosed a copy
of a visitor log of visits defendant received while in the Cook County jail showing that Webster
“visited [him] a lot.” Counsel informed defendant that if Webster “recant[ed] her prior out of
court statements at trial,” the State would be able to point to the log and argue that her
recantation was rehearsed and was at defendant’s request. Defendant averred that he asked
counsel if “she [was] aware of the prior statements [Webster] made to [defendant’s] counsel’s
investigator on [his] first [two] court dates,” and she responded that she was. Defendant asserted
that he told counsel that “we can use that to show that [Webster] changed her story a long time
ago before all the visits.” Defendant did not articulate the substance of Webster’s statements or
include an affidavit from her.
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No. 20-1343
¶ 49 On April 1, 2016, the circuit court summarily dismissed the postconviction petition,
finding the issues raised to be frivolous and patently without merit. The same day, the court
entered a separate order assessing filing fees and court costs pursuant to 735 ILCS 5/22-105
(West 2016) for frivolous and unnecessary filings.
¶ 50 Defendant filed a notice of appeal, and counsel was appointed to represent him on appeal.
On December 14, 2017, appointed counsel filed a motion for leave to withdraw pursuant to
Pennsylvania v. Finley, 481 U.S. 551 (1987), based on counsel’s assessment that the appeal
presented no meritorious issues for review. Counsel submitted a memorandum in support of the
motion, in which she expanded on her assessment of the issues raised by defendant. Specifically,
counsel noted defendant’s claims that trial counsel was ineffective for failing to dismiss his
indictment and complaint was not meritorious, in part because his underlying claim that the
instruments were “fraudulent and void” was rebutted by the record. As to defendant’s argument
that counsel was ineffective for failing to object to the introduction of Webster’s videorecorded
statement, counsel explained that the statement was properly introduced as substantive evidence,
and that an objection to its introduction would have been futile. Counsel also addressed
defendant’s claim that trial counsel was ineffective for failing to introduce Webster’s “prior
consistent statements.” Counsel explained that defendant failed to set forth the content of any
such statement or provide any supporting documentation, and without any evidence that Webster
actually made a prior consistent statement or what the substance of the statement was, it could
not be determined whether any such statement would have been admitted or could have changed
the result of defendant’s trial.
¶ 51 Counsel further concluded that defendant’s arguments regarding the effectiveness of
appellate counsel failed as well. Specifically, counsel noted that defendant claimed appellate
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No. 20-1343
counsel was ineffective for failing to argue the sufficiency of the evidence on appeal, based on
defendant’s claimed that Webster’s videorecorded statement was unreliable and uncorroborated.
Counsel reiterated that the statement was properly admitted, and that the court, as trier of fact,
weighed the credibility of Webster’s testimony and her prior statement and ultimately found the
prior statement to be more credible. Finally, counsel explained that defendant’s argument
regarding the constitutionality of the mandatory firearm enhancement statute lacked a cognizable
legal basis, as the statute had been upheld repeatedly in the face of the same constitutional
challenges.
¶ 52 Defendant was permitted to respond to counsel’s motion, and he filed a pro se response
on January 16, 2018. Defendant acknowledged that several issues in his petition were not
meritorious, explaining that he “decided to abandon several of the issues raised in his
postconviction petition.” Defendant, however, argued that certain arguments were meritorious,
and that counsel’s assessments of those issues were wrong. Specifically, defendant continued to
maintain that trial counsel was ineffective for failing to move to quash his complaint and arrest
and to dismiss the indictment. Defendant also argued that trial counsel was ineffective for failing
to introduce Webster’s prior consistent statements, and to argue for a conviction on a lesser
offense of reckless conduct. Defendant further argued that appellate counsel was ineffective for
failing to raise an issue as to the sufficiency of the evidence, and to challenge the admission of
Webster’s videorecorded statement as a violation of defendant’s due process rights.
¶ 53 Regarding his claim that trial counsel was ineffective for failing to introduce Webster’s
prior consistent statements, defendant contended that it was unnecessary for him to describe the
contents of Webster’s statements, as he had alleged in his petition that they were “consistent with
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No. 20-1343
[her] trial testimony,” and he need only “present a limited amount of detail” at the first stage of
postconviction proceedings.
¶ 54 On April 12, 2018, this court filed a summary order, granting counsel’s motion and
affirming the judgment of the circuit court summarily dismissing defendant’s postconviction
petition. We noted that we had “carefully reviewed the record in this case, counsel’s
memorandum, and defendant’s response and f[ou]nd no issues of arguable merit to be raised in
an appeal.” People v. Adams, No. 1-16-1407 (2018) (unpublished summary order under Illinois
Supreme Court Rule 23(c)).
¶ 55 Meanwhile, on January 24, 2018, defendant filed another petition pursuant to section 2-
1401 of the Code. Defendant again challenged the constitutionality of the firearm sentencing
enhancement statute.
¶ 56 On March 28, 2018, the circuit court found that defendant had failed to state a cognizable
claim under section 2-1401 and dismissed the petition for relief. The circuit court concluded that
defendant had previously raised the same challenges in prior petitions for declaratory judgment
and for postconviction relief, and that the law regarding the constitutionality of the mandatory
sentencing enhancement had not changed since those petitions. The court found defendant’s
claims were barred by res judicata and were without merit, and dismissed his petition. The court
assessed defendant $160 in filing fees and court costs for filing a frivolous petition.
¶ 57 Defendant appealed, and the Office of the State Appellate Defender was appointed to
represent him on appeal. Thereafter, appointed counsel filed a motion for leave to withdraw
based on counsel’s conclusion that the appeal would be without arguable merit. The motion was
made pursuant to Finley and was accompanied by a memorandum in which counsel concluded
that the circuit court correctly determined that defendant’s claims were without merit and barred
20
No. 20-1343
by res judicata. Defendant submitted a pro se response restating his argument and claiming that
it was meritorious. Defendant further argued that his claims were not barred by res judicata
because they had not been disposed of on the merits in his prior collateral proceedings, and that
he raised grounds that differed from his prior challenges under the proportionate penalties clause
and due process.
¶ 58 On March 4, 2020, this court issued a summary order. We explained that we had
carefully reviewed the record, counsel’s memorandum, and defendant’s pro se response and
found no issues of arguable merit to be asserted on appeal. We therefore granted the motion of
the State Appellate Defender for leave to withdraw as counsel and affirmed the judgment of the
circuit court of Cook County. People v. Adams, No. 1-18-0883 (2020) (unpublished summary
order under Illinois Supreme Court Rule 23(c))
¶ 59 Meanwhile, on April 4, 2019, defendant filed a combined motion for substitution for
judge and motion for leave to file a successive postconviction petition, followed by a combined
motion for substitution of judge and petition for relief from judgment in May 2019. On
September 20, 2019, defendant filed a “Supplemental Successive Petition for Post-Conviction
Relief,” and on January 15, 2020, defendant filed an “Addendum In Support of Motion for Leave
to File a Successive Petition for Post-Conviction Relief.”
¶ 60 Defendant claimed that he was denied the right to a “fair and impartial trial,” because the
court “abandon[ed] its role as a neutral and impartial arbiter of fact and assum[ed] the role of
prosecutor” by “making “conjecture inferences that Webster had a biased interest and motive to
testify falsely at trial.” Defendant contended that the trial court “solely relied” on these
inferences to disbelieve Webster’s trial testimony. Defendant also argued that the trial court’s
statement that it had reviewed the videorecorded statement during an overnight recess indicated
21
No. 20-1343
that the court had engaged in improper “private investigation.” Defendant alleged that the judge
was “biased and prejudiced against” him, and that a “new trial before a different trial judge is
warranted.”
¶ 61 As grounds for postconviction relief, defendant claimed that trial counsel was ineffective
for failing to introduce Webster’s prior consistent statements, and for failing to challenge the
admission of Webster’s videorecorded statement. Defendant also alleged that trial counsel was
ineffective for failing to “present the possibility of a conviction for the lesser offense of reckless
conduct.” Defendant acknowledged that he had previously raised these claims in his initial
postconviction petition but asserted that the proceedings on his initial petition were
“fundamentally deficient” and that he was denied the opportunity to be heard. Defendant further
alleged that postconviction counsel rendered ineffective assistance for failing to argue the claims.
¶ 62 Defendant also argued that trial counsel was ineffective for “incorrectly advising him” to
waive his rights to testify and for a jury trial. Defendant asserted that he told counsel he wanted
to testify and have a jury trial, and counsel responded “in a scolding tone” that she strongly
opposed his decision to testify and that if defendant testified, “that’s all it would take for the
State to secure a conviction.” Defendant stated that counsel also incorrectly advised him that his
criminal background would be brought out only if he chose to testify, when in reality it came out
whether or not he testified. Defendant further stated that counsel informed him that if he chose a
jury trial, he would “definitely receive the maximum sentence” if convicted, because a jury trial
costs the State a significant amount of money and the judge “shows no mercy” to those who
choose a jury. Defendant also claimed that his due process rights were violated because his
indictment was invalid, arguing it was obtained through the knowing use of perjured, misleading,
and unsworn testimony from a detective during grand jury proceedings.
22
No. 20-1343
¶ 63 Finally, defendant claimed that the statute underlying his 25-year firearm enhancement is
void.
¶ 64 The circuit court entered a written order on November 12, 2020. Initially, regarding
defendant’s motion for substitution of judge, the court noted that the judge who presided over a
defendant’s criminal trial generally should hear post-judgment matters unless it is shown that the
judge was substantially prejudiced. Although defendant claimed that the judge was prejudiced
toward him, and that the judge improperly relied on Webster’s bias as the sole reason for
rejecting her trial testimony, the record reflected that the judge considered all the evidence,
including the substance of Webster’s testimony and the conflict between that testimony and her
prior statement to police. The court also rejected defendant’s claim that the judge conducted
improper “private investigation” by considering the videorecorded statement, noting that the
statement was introduced into evidence for the judge’s review. The court found defendant’s
claims of bias to be rebutted by the record, and concluded that recusal was not warranted.
¶ 65 Turning to the allegations of defendant’s postconviction petition, the circuit court noted
that defendant sought to “re-litigate numerous claims from his initial post-conviction petition”
and that such action was clearly barred by the Post-Conviction Hearing Act. The court clarified
that it had previously found that these claims were frivolous and patently without merit or
waived for failure to raise them on direct appeal. The court further explained that claims which
were not waived were again denied on direct appeal after postconviction appellate counsel
previously filed an exhaustive Finley memorandum setting forth the reasons why those claims
were without merit.
¶ 66 The circuit court also found that defendant failed to show cause and prejudice for the
claims raised in his motion for leave to file a successive postconviction petition, and leave to file
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No. 20-1343
was denied. The circuit court also rejected defendant’s challenges the constitutionality of his 25-
year sentencing enhancement, noting that defendant’s claims failed as a matter of law. Lastly, the
circuit court found defendant’s filings to be frivolous in that they lacked an arguable basis in law
or in fact, contained allegations without evidentiary support, and/or were presented to hinder or
cause unnecessary delay. Accordingly, the trial court ordered that defendant pay filing fees and
court costs in the amount of $340. Defendant filed a timely notice of appeal.
¶ 67 In this court, defendant pro se contends that the court erred in denying his motions for
substitution of judge and for leave to file a successive postconviction petition. We first address
defendant’s claims regarding substitution of the trial judge.
¶ 68 Defendant argues that the circuit court erred in denying his motion for a substitution of
judge because defendant “has shown that [the] trial judge is substantially prejudiced and was
required to recuse himself from ruling on motions.” Defendant asserts that the judge should not
have ruled on his motions because he is “biased and prejudiced against [defendant] and had an
interest in reaching a conclusion against him in his particular case.” Defendant further claims
that the circuit court was biased against him because the circuit court had “unwavering
certainties in his rulings” and “prejudged” the “entire case,” and there was “no hope of
persuading him to the contrary if this cause were re-heard before him.”
¶ 69 A judge is presumed to be impartial, and this presumption must be overcome by the party
claiming that the judge is prejudiced. People v. Steidl, 177 Ill. 2d 239, 265 (1997). There is no
absolute right to a substitution of judge at a postconviction proceeding. People v. Hall, 157 Ill.
2d 324, 331 (1993). Rather, the same judge who presided over defendant’s trial should hear his
postconviction petition, unless it is shown that defendant would be substantially prejudiced. Id.
The fact that a judge has ruled adversely to a defendant in a criminal case does not disqualify that
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No. 20-1343
judge from sitting in subsequent cases in which the same person is a party. People v. Harvey, 379
Ill. App. 3d 518, 522 (2008).
¶ 70 In order to obtain a different judge for postconviction proceedings, defendant must show
that allowing the same judge to preside over the case would result in “substantial prejudice.”
People v. Zirko, 2021 IL App (1st) 162956, ¶ 28; People v. Townsend, 2020 IL App (1st)
171024, ¶ 49. Prejudice means “ ‘animosity, hostility, ill will, or distrust towards [the]
defendant.’ ” Townsend, 2020 IL App (1st) 171024, ¶ 49 (quoting People v. Patterson, 192 Ill.
2d 93, 131 (2000)). We review a trial court’s ruling on a motion for substitution of judge under
the manifest weight of the evidence standard. People v. Mercado, 244 Ill. App. 3d 1040, 1047
(1993). A decision is against the manifest weight of the evidence where it is clearly erroneous, or
where the record reflects the opposite conclusion. Id.
¶ 71 We find nothing in the record to support defendant’s claim that the circuit court was
prejudiced against him. Defendant’s claim is based primarily on the court’s finding that
Webster’s videorecorded statement to police the night of the shooting was more credible than her
recantation at trial. Defendant disagrees with the court’s credibility conclusion, and contends that
the trial court “abandon[ed] its role as a neutral and impartial arbiter of fact and assum[ed] the
role of prosecutor” by making “conjecture inferences that Webster had a biased interest and
motive to testify falsely at trial.” However, it is the function of the trier of fact to assess the
credibility of the witnesses, determine the appropriate weight of the testimony, and resolve
conflicts or inconsistencies in the evidence. People v. Graham, 392 Ill. App. 3d 1001, 1009
(2009).
¶ 72 As the trier of fact during defendant’s criminal trial, the judge made rulings based on the
credibility of the witnesses. In her trial testimony, Webster testified that the victim and defendant
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No. 20-1343
were fighting over the firearm when it was discharged. This testimony was contrary to her
videorecorded statement, in which she stated that defendant held the firearm to the victim’s head
and fired. Webster also testified that she visited defendant in pre-trial detention between ten and
twenty times, and had given birth to defendant’s child in the time since the shooting. In assessing
the evidence and finding that the State had proved defendant’s guilt beyond a reasonable doubt,
the circuit court found that the “statement that Ms. Webster made the day of this offense was far
more credible than” her trial testimony. The record reflects that the circuit court properly
considered not only Webster’s bias, but the substance of her trial testimony, the substance of her
videorecorded statement, and all the other evidence elicited at trial.
¶ 73 This court has reviewed Webster’s videotaped statement as part of this appeal, and we
see no basis from which to second guess the trial court’s credibility assessment. See People v.
Sturgeon, 2019 IL App (4th) 170035, ¶ 55 (A reviewing court will not “substitute its judgment
for that of the fact finder on questions involving the weight of the evidence or the credibility of
the witnesses.”). Although defendant contends that Webster was intoxicated at the time of her
videotaped statement, based on our independent review, we agree with the trial court that there
was no evidence showing that Webster was intoxicated at that time. Webster answered all
questions directed to her, and her demeanor was generally calm and coherent, although she
became visibly upset at times when detailing the shooting. When specifically asked whether she
was under the influence of any alcohol or drugs, Webster responded that she was not.
¶ 74 Defendant also takes issue with one particular comment made during the trial court’s
ruling. In explaining its assessment of the credibility of Webster’s trial testimony, the court
stated: “By her own admission, she had visited [defendant] numerous times in Cook County Jail,
and so I guess some phrase that was used by a judge many, many years ago, she decided to rally
26
No. 20-1343
around the living, so to speak.” Defendant contends that by referring to another judge’s
comments in a different case, the court was relying on “private knowledge” and “information
outside the record.” A reasonable reading of the court’s comments makes clear that the trial court
was merely discussing the evidence and expressing its own analysis of Webster’s credibility
based on the court’s knowledge and experience, as the trier of fact is entitled to do. Thomas, 377
Ill. App. 3d at 963 (“A trial judge does not operate in a bubble; she may take into account her
own life and experience in ruling on the evidence.”). The court’s isolated comment referring to a
statement by another judge does not demonstrate that the court considered improper evidence.
¶ 75 Finally, defendant argues that the circuit court “has also been engaging in an ongoing
pattern of deliberately and intentionally (1) failing to give any due independent consideration to
each and every claim raised by [defendant]; (2) mischaracterizing, improperly assessing, and
contradicting claims as a basis to reject them; (3) using inapplicable precedent case law
authorities as a basis to reject claims; and (4) failing to acknowledge, consider, follow, and apply
relevant and applicable precedent case law authorities, constitutional law, and Illinois law that
[defendant] cite[s] to base and support claims.” Defendant offers no support for these
contentions, other than the fact that the court has ruled against him. “The entry of an adverse
judgment, standing alone, is not evidence of prejudice.” People v. Hall, 157 Ill. 2d 324, 335
(1993). Based on our review of the appellate record, we find nothing to support a claim that the
trial judge continuing to preside over defendant’s case would result in “substantial prejudice” to
defendant. We accordingly affirm the denial of defendant’s motion for substitution of judge.
¶ 76 Defendant next asserts that the circuit court erred when it denied his motion for leave to
file his successive postconviction petition. Initially, we note that defendant has focused his
appellate argument on the following five specific claims: (1) his trial counsel provided
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No. 20-1343
ineffective assistance by failing to introduce Webster’s prior inconsistent statements; (2)
defendant’s due process rights to a fair trial were violated by the introduction of Webster’s
videorecorded statement, and appellate counsel was ineffective for failing to raise the issue on
direct appeal; (3) defendant’s due process rights to a fair trial were violated because the trial
judge was biased against him; (4) defendant’s due process rights to a fair trial were violated
because his “indictment was based on unsworn, misleading, [and] deceptive testimony”; and (5)
the firearm sentencing enhancement is unconstitutional. Defendant has provided no argument
regarding the other several claims contained in his successive postconviction petition, and
accordingly, he has abandoned those arguments, forfeiting them for review. People v. Lewis,
2017 IL App (1st) 150070, ¶ 9; Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1, 2016); People v. Guest, 166
Ill.2d 381, 414 (1995).
¶ 77 The Illinois Post-Conviction Hearing Act (Act) provides a mechanism for convicted
defendants to assert that their constitutional rights were substantially violated during their
original trial or sentencing hearings. People v. Dorsey, 2021 IL 123010, ¶ 31; 725 ILCS 5/122-
1(a). Postconviction proceedings are confined to constitutional matters that have not and could
not have been previously adjudicated. People v. Blair, 215 Ill. 2d 427, 447 (2005).
¶ 78 Because an action seeking postconviction relief is a collateral proceeding, not an appeal
from the underlying judgment, the Act contemplates the filing of one postconviction petition.
People v. Edwards, 2012 IL 111711, ¶ 22. “Consequently, all issues actually decided on direct
appeal or in the original postconviction petition are barred by the doctrine of res judicata, and all
issues that could have been raised in the original proceeding, or original postconviction petition,
but were not, are waived.” People v. Anderson, 375 Ill. App. 3d 990, 1000 (2007).
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No. 20-1343
¶ 79 Claims not raised in an initial petition are waived unless the defendant can show cause
for, and prejudice from, failing to raise the claim in the earlier petition, or makes a colorable
claim of actual innocence. People v. Robinson, 2020 IL 123849, ¶ 42. Where, like here, a
defendant does not raise a claim of actual innocence, the defendant must establish both cause and
prejudice in order to prevail on a motion for leave to file a successive postconviction petition.
People v. Pitsonbarger, 205 Ill. 2d 444, 464 (2002).
¶ 80 The cause-and-prejudice standard a defendant must meet to obtain leave to file a
successive petition involves a higher standard than the frivolous and patently without merit, or
“gist,” standard that an initial petition must meet to survive summary dismissal under section
122-2.1(a)(2) of the Act. Edwards, 2012 IL 111711, ¶¶ 26-27. The Act defines “cause” as “an
objective factor that impeded [the defendant’s] ability to raise a specific claim during his or her
initial postconviction proceedings.” 725 ILCS 5/122-1(f) (West 2016). To establish “prejudice,”
a defendant must demonstrate that the claim not raised in an initial postconviction proceeding
“so infected the trial that the resulting conviction or sentence violated due process.” Id.
¶ 81 When faced with a motion for leave to file a successive postconviction petition, the court
conducts “a preliminary screening” to determine whether the motion adequately alleges facts to
make a prima facie showing of cause and prejudice. People v. Bailey, 2017 IL 121450, ¶ 24. To
meet the cause-and-prejudice test for a successive petition, a defendant must “submit enough in
the way of documentation to allow a circuit court to make that determination.” People v. Tidwell,
236 Ill. 2d 150, 161 (2010). “[L]eave of court to file a successive postconviction petition should
be denied when it is clear, from a review of the successive petition and the documentations
submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or
where the successive petition with supporting documentation is insufficient to justify further
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No. 20-1343
proceedings.” People v. Smith, 2014 IL 115946, ¶ 35. Courts review the denial of a motion for
leave to file a successive petition de novo. Dorsey, 2021 IL 123010, ¶ 32.
¶ 82 Defendant does not identify any objective factor that impeded his ability to raise any
specific claim during his initial postconviction proceedings to establish cause for his failure to
raise the issues earlier. In fact, defendant did raise the same claims in his initial petition.
Defendant contends, however, that he should be allowed to “re-raise” the issues that were
contained in his initial petition, because postconviction appellate counsel rendered “ineffective
assistance” by failing to raise the claims on appeal and, instead, filing a Finley motion. We note,
however, that on appeal from defendant’s initial postconviction petition, this court already
considered the issues defendant raised. We carefully reviewed the record, counsel’s Finley
memorandum, and defendant’s response, and agreed with counsel’s conclusion that there were
no issues of arguable merit to be raised in an appeal. People v. Adams, No. 1-16-1407 (April 12,
2018) (unpublished summary order under Illinois Supreme Court Rule 23(c)).
¶ 83 Defendant acknowledges that his issues were previously raised in his initial petition for
postconviction relief. He contends, however, that this court should treat his successive petition as
an initial petition, because the proceedings on his initial petition were “void” where the trial
judge did not recuse himself from ruling on the petition, which, defendant asserts, contained
“meritorious claims of bias and prejudice” against the judge. As we have previously found
nothing in the record that could support defendant’s claim that the trial judge was prejudiced
against him, we similarly reject defendant’s claim that the trial judge’s continued participation
“void[ed]” the subsequent proceedings.
¶ 84 Defendant additionally argues that he is not barred from re-raising the same issues
because he has not received a decision on the merits of his issues, and that he need not establish
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No. 20-1343
“cause” for not raising an issue in his direct appeal because he “did not exhaust his direct
appeal.” However, as stated above, postconviction proceedings allow inquiry into constitutional
issues that were not, and could not have been, adjudicated on direct appeal or in a prior
postconviction proceeding. People v. Anderson, 375 Ill. App. 3d 990, 1000 (2007). Whether
defendant proceeded in his direct appeal is not the relevant question. Instead, issues that were
raised and decided on direct appeal or in a previous postconviction proceeding are barred by the
doctrine of res judicata, and issues that could have been raised, but were not, are waived. Towns,
182 Ill.2d at 502–03.
¶ 85 In these circumstances, we conclude that defendant’s claims in this appeal are barred by
res judicata and waiver. Where res judicata and waiver preclude defendant from obtaining relief,
such a claim will necessarily be frivolous and patently without merit (Blair, 215 Ill.2d at 445),
and leave of court to file a successive postconviction petition should be denied (Smith, 2014 IL
115946, ¶ 35).
¶ 86 Forfeiture aside, this court would also affirm the denial of leave to file a successive
postconviction petition, as the issues defendant raises lack merit.
¶ 87 Specifically, defendant raises a claim of ineffective assistance based on trial counsel’s
failure to introduce prior consistent statements that Webster allegedly gave to defense counsel’s
investigator prior to trial. Defendant claims that the prior consistent statements of Webster would
have corroborated Webster’s later testimony that the shooting occurred during a “struggle” over
the gun.
¶ 88 To demonstrate “prejudice,” defendant was required to show the contents of Webster’s
statements and how they would have changed the results of the trial. Defendant, however, failed
to provide the contents of Webster’s alleged statements or any documentation attesting that the
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No. 20-1343
statements actually occurred. Defendant contends that he was not required to state the contents of
Webster’s statements, but offers no support for this contention except to argue that he needed
only present a “limited amount of detail.”
¶ 89 Initially, we note that the requirement that a pro se petitioner present a “limited amount
of detail” applies to first-stage initial postconviction petitions, and “our court has made
pellucidly clear [that] the pleading requirements for successive postconviction petitions are
higher than the pleading requirements for initial postconviction petitions.” People v. Horshaw,
2021 IL App (1st) 182047, ¶ 134, citing Smith, 2014 IL 115946, ¶ 35; People v. Robinson, 2020
IL 123849, ¶ 43. Nonetheless, even under the more lenient standard applied to initial petitions,
our supreme court has explained,
“a limited amount of detail does not mean that a pro se petitioner is excused from
providing any factual detail at all surrounding the alleged constitutional
deprivation. Such a position would contravene the language of the Act that
requires some factual documentation which supports the allegations to be attached
to the petition or the absence of such documentation to be explained. This court
has held that the purpose of section 122–2 is to establish that a petition’s
allegations are capable of objective or independent corroboration. We have also
held that the affidavits and exhibits which accompany a petition must identify
with reasonable certainty the sources, character, and availability of the alleged
evidence supporting the petition’s allegations. Thus, while a pro se petition is not
expected to set forth a complete and detailed factual recitation, it must set forth
some facts which can be corroborated and are objective in nature or contain some
explanation as to why those facts are absent. As a result, the failure to either
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No. 20-1343
attach the necessary affidavits, records, or other evidence or explain their absence
is fatal to a post-conviction petition and by itself justifies the petition’s summary
dismissal.” People v. Delton, 227 Ill. 2d 247, 254 (2008) (internal quotation
marks and citations omitted).
¶ 90 Here, defendant conclusively claims that Webster made statements that were consistent
with her trial testimony, but he provided no factual allegations from which one could determine
the contents of her statements. Without knowing the contents of Webster’s alleged statements,
defendant cannot show that they were consistent with her trial testimony, that they would have
been admissible at trial, or that they would have changed the outcome of his trial.
¶ 91 Moreover, even assuming that Webster gave prior consistent statements to the defense
investigator months after the shooting, defendant cannot show ineffective assistance from trial
counsel’s failure to introduce evidence of such statements. Ineffective assistance of counsel
claims are judged by the standard set forth by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668, 687 (1984). People v. Albanese, 104 Ill. 2d 504 (1984). “Strickland
requires that defendant prove (1) that counsel’s performance was deficient in that it fell below an
objective standard of reasonableness and (2) that the deficient performance prejudiced the
defense such that defendant was deprived a fair trial whose result was reliable.” (Internal
quotation marks and citation omitted) People v. Pecoraro, 144 Ill. 2d 1, 13 (1991).
¶ 92 Judicial scrutiny of counsel’s performance is highly deferential and “a court must indulge
a strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action might be considered sound trial strategy.” Strickland, 466
U.S. at 689. Regarding the second prong, “the defendant must demonstrate that there is a
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No. 20-1343
reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding
would have been different.” People v. Shatner, 174 Ill. 2d 133, 144 (1996). The failure to satisfy
either prong of Strickland precludes a finding of ineffective assistance of counsel. Strickland,
466 U.S. at 697. When analyzing the two-part Strickland test, a court may dispose of an
ineffectiveness claim for lack of sufficient prejudice before reaching the deficiency analysis. Id.
at 13.
¶ 93 Even assuming that Webster gave prior consistent statements to the defense investigator,
there is no reasonable probability that the result of defendant’s trial would have been different
had those statements been introduced. The circuit court clearly expressed that it found Webster’s
statements immediately after the shooting more credible, and a subsequent recantation of her
videorecorded statement still would suffer from the same issues of credibility, whether that
recantation was initially made at trial or to a defense investigator. Accordingly, defendant cannot
establish prejudice from trial counsel’s failure to introduce Webster’s alleged prior consistent
statements.
¶ 94 Second, defendant argues that his due process rights to a fair trial were violated because
Webster’s videorecorded statement was “improperly admitted at trial as a prior inconsistent
statement under 725 ILCS 5/115-10.1,” and he blames his appellate counsel for failing to cite
this issue on appeal. Section 5/115-10.1 of the Code of Criminal Procedure provides that
“evidence of a statement made by a witness is not made inadmissible by the
hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement—
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No. 20-1343
***
(2) narrates, describes, or explains an event or condition of which the
witness had personal knowledge, and
***
(B) the witness acknowledged under oath the making of the
statement either in his testimony at the hearing or trial in which the
admission into evidence of the prior statement is being sought, or
at a trial, hearing, or other proceeding, or
(C) the statement is proved to have been accurately recorded by a
tape recorder, videotape recording, or any other similar electronic
means of sound recording.
¶ 95 Defendant focuses on what he characterizes as “significant inconsistencies” in Webster’s
videorecorded statement, which he contends show that her statement was “false” and that she
“did not narrate, describe, nor explain events of the shooting within her personal knowledge.”
Defendant therefore contends that the evidence against him was “insufficient to sustain” his
conviction for attempted murder.
¶ 96 The two-part test for effective assistance of counsel announced in Strickland also applies
to claims of ineffective assistance of appellate counsel. People v. Caballero, 126 Ill. 2d 248, 269-
70. A successful claim of ineffective assistance of appellate counsel requires a showing that (1)
the failure of appellate counsel to raise an issue was objectively unreasonable, and (2) there is a
reasonable probability that, but-for appellate counsel’s error, appellant’s sentence or conviction
would have been reversed. Id. It is not incompetent for appellate counsel to refrain from raising
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No. 20-1343
issues that are without merit, unless counsel’s appraisal was patently wrong. People v. Barnard,
104 Ill. 2d 218, 231 (1984).
¶ 97 Contrary to defendant’s argument, the fact that defendant finds inconsistencies in
Webster’s account does not mean that she did not have personal knowledge of the shooting.
Significantly, defendant does not contend that Webster was not present for the shooting; he
merely contends that her account of the shooting at trial was more accurate than her earlier
videorecorded account. Accordingly, we find no merit in defendant’s contention that the
videorecorded statement should not have been admitted as a prior inconsistent statement under
725 ILCS 5/115-10.1, and appellate counsel was not ineffective for failing to raise that issue.
¶ 98 Defendant next claims that his due process rights to a fair trial were violated because the
trial judge was biased against him. As we have previously found no evidence of bias, we need
not analyze this claim further.
¶ 99 Defendant further claims that his due process rights to a fair trial were violated because
his “indictment was based on unsworn, misleading, [and] deceptive testimony.” Defendant’s
argument on this point is exceedingly sparse. He does not expand on what testimony was
unsworn, misleading or deceptive, and he cites no legal authority. Even if the argument was not
barred by res judicata and waiver, as we found above, we would conclude that he has forfeited
review of the issue in these circumstances. See People v. Macias, 2015 IL App (1st) 132039, ¶
88 (“A reviewing court is entitled to have the issues on appeal clearly defined with pertinent
authority cited and a cohesive legal argument presented. The appellate court is not a depository
in which the appellant may dump the burden of argument and research.” (Internal quotations and
citation omitted)); see also In re A.H., 215 Ill. App. 3d 522, 529–30 (1991) (noting that pro se
appellants are held to the same standards as attorneys on appeal).
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No. 20-1343
¶ 100 Nonetheless, as best this court can understand, it appears that defendant is challenging the
grand jury proceedings. As part of this appeal, defendant requested that this court allow him to
supplement the record with minutes or transcripts from the grand jury proceedings. The motion
was granted, and we ordered the Office of the State’s Attorney to facilitate the release,
certification, and supplementation of the record. Thereafter, transcripts of the grand jury
proceedings were filed in the record on appeal. This court has reviewed those transcripts, which
indicate that the testifying detective was duly sworn, and we find nothing to support defendant’s
conclusory claims that the testimony was misleading or deceptive.
¶ 101 Finally, defendant raises several challenges to the constitutionality of his 25-year firearm
enhancement, and requests that this court “simply vacate” his 25-year sentence enhancement
without remanding for resentencing. In addition to those challenges being barred by res judicata
and waiver, as described above, defendant’s constitutional challenges are legally meritless.
Accordingly, defendant cannot establish the prejudice requirement for filing a successive
postconviction petition.
¶ 102 A statute is presumed constitutional, and the party challenging the statute bears the
burden of demonstrating its invalidity. People v. Moss, 206 Ill. 2d 503, 519-20 (2003), rev’d on
other grounds, People v. Sharpe, 216 Ill. 2d 481 (2005). Courts must construe a statute in a
manner that upholds its validity and constitutionality if it reasonably can be done. Moss, 206 Ill.
2d at 520. The constitutionality of a statute is subject to de novo review. Id.
¶ 103 Defendant first contends that the firearm enhancement, “as applied” to him, violates
“double jeopardy” and “due process” because it results in “multiple punishments for the same
act,” and accordingly, it is “not reasonably designed to remedy the particular evil that the
legislation was intended to target.” Defendant argues that “the discharge of a firearm against [the
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No. 20-1343
victim] inflicting great bodily harm stand[s] alone as the alleged act of [defendant], and both his
10-year baseline sentence and his 25-year add-on were based on this sole act.”
¶ 104 This argument has been rejected repeatedly by the supreme court and this court. See
Moss, 206 Ill. 2d at 537 (the use of a firearm element did not constitute multiple punishment and,
therefore, did not result in any double jeopardy violation); People v. Sawczenko-Dub, 345 Ill.
App. 3d 522, 535 (2003) (mandatory firearm enhancement provisions do not violate
proportionalities clause or prohibition against double jeopardy); People v. Bloomingburg, 346 Ill.
App. 3d 308, 325 (2004) (“[B]ecause the firearm factor is not an inherent or essential element of
[the offense] and it is only used to impose a longer sentence, there is no double enhancement.”).
¶ 105 Defendant additionally argues that the firearm enhancement violates the “equal
protection” clause, as applied to him, because there are “numerous individuals who were also
convicted of committing attempted murder with a firearm but did not receive any of the firearm
enhancements.” Defendant cites 28 purported examples of cases in which the defendants were
“convicted of committing attempted murder with a firearm” but did not receive a firearm
enhancement to their sentences.
¶ 106 Defendant characterizes his argument as an “equal protection” challenge; however, he
does not identify any classification created by the statute. The guarantee of equal protection
requires that the government treat similarly situated individuals in a similar manner unless the
government can demonstrate an appropriate reason to treat them differently. People v. R.L., 158
Ill. 2d 432, 437-38 (1994). “For a court to engage in any manner of equal protection review of a
statute, the challenging party must show that the statute classifies persons in some manner.”
People v. Bennett, 284 Ill. App. 3d 276, 280 (1996) (citing People v. Wegielnik, 152 Ill. 2d 418,
429 (1992)). Before we can reach the ultimate question of whether the complained of statute
38
No. 20-1343
violates the equal protection clause, we must first determine whether defendant is similarly
situated to the comparison group. People v. Guyton, 2014 IL App (1st) 110450, ¶ 68 (citing
People v. Whitfield, 228 Ill. 2d 502, 513 (2007)). When a party fails to make this showing, his
equal protection challenge must fail. Id.
¶ 107 Defendant’s claim is merely that other individuals have experienced better outcomes than
himself. However, defendant’s equal protection interests have not been violated simply because
other defendants who committed unrelated crimes may have received more lenient sentences.
The supreme court has rejected such “cross-case comparative sentencing” as a basis for
challenging a defendant’s sentence. People v. Fern, 189 Ill. 2d 48, 55-62 (1999) (“[S]uch an
analysis does not comport with our sentencing scheme’s goal of individualized sentencing and
would unduly interfere with the sentencing discretion vested in our trial courts.”); see also
People v. Gutierrez, 402 Ill. App. 3d 866, 901 (2010); see also People v. Harris, 2012 IL App
(1st) 092251, ¶ 30, quoting People v. Wade, 131 Ill. 2d 370, 379 (1989) (“In point of fact, our
supreme court has held that even where the statutes themselves provide different sentencing
ranges for similar conduct, giving the prosecutor the power to elect upon which statute to
prosecute the offense, ‘the availability of different punishments for separate offenses based on
the commission of the same acts does not offend the constitutional guarantees of equal protection
or due process.’”).
¶ 108 Defendant next asserts that the firearm enhancement is “facially unconstitutional” under
the cruel and unusual punishment clause, because one who is charged with attempted murder is
not permitted “to introduce mitigation evidence that he acted while possessing an unreasonable
belief that his actions were necessary for his defense.” According to defendant, this means that
his punishment is “disproportionate” in violation of the eighth amendment because an offender
39
No. 20-1343
who “succeeds in killing his victim” does receive an opportunity to reduce his sentence by
presenting this sort of mitigation evidence.
¶ 109 The Illinois Supreme Court in People v. Lopez, 166 Ill. 2d 441, 450-51 (1995), rejected
this very same argument where it was raised under the Illinois constitution’s proportionate
penalties clause. Specifically, the Lopez court held: “We do not believe that the disparity in
sentencing range here is cruel, degrading, or so wholly disproportionate to the offense committed
as to shock the moral sense of the community. Accordingly, we hold that under the Illinois
attempt statute, no crime of attempted second degree murder exists.” Id. Because the Illinois
proportionate penalties clause is co-extensive with the eighth amendment’s cruel and unusual
punishment clause (People v. Patterson, 2014 IL 115102, ¶ 106), defendant’s claim necessarily
fails.
¶ 110 Defendant next claims that “the attempt statute and [his] 25-year firearm enhancement
are facially unconstitutional *** under the Equal Protection Clause” because an offender who is
convicted of attempted first-degree murder can have his sentence reduced to a Class 1 offense by
presenting evidence that he acted under sudden and intense passion resulting from serious
provocation, but not because he acted while possessing an unreasonable belief that his actions
were necessary for his defense.
¶ 111 This argument was specifically rejected in People v. Guyton, 2014 IL App (1st) 110450,
¶¶ 53-69. The Guyton court explained that, as discussed above, the supreme court in Lopez found
that attempted second degree murder did not exist. Lopez, 166 Ill. 2d at 450-51. Almost 15 years
after Lopez, the legislature acted, but chose only to allow attempted first-degree murder to be
mitigated by “serious provocation,” and not “imperfect self-defense.” See People v. Guyton,
2014 IL App (1st) 110450, ¶ 45. As the court in Guyton observed, “The legislature could have
40
No. 20-1343
easily addressed the issue of whether imperfect self-defense would be a mitigating factor in an
attempted murder situation by adding such language when it made the above amendment, but
chose not to. *** [T]hus, its inaction suggests agreement with the judicial interpretation of
Lopez.” Id.
¶ 112 Finally, defendant argues that “the attempt statute and [his] 25-year firearm enhancement
are facially unconstitutional *** under the Due Process Clause” because the term “another
person” is ambiguous and “causes ordinary people to believe that this provision only proscribes
serious bodily harm or death to another person other than the perpetrator and intended victim by
the use of a firearm.” (Emphasis in original). This argument was specifically rejected in Sharpe,
216 Ill. 2d at 528-29, in which our supreme court determined that it was “quite clear that the
legislature intended the enhanced penalty to apply whenever the perpetrator by means of
personal discharge of a firearm causes the requisite level of injury to someone other than
himself.”
¶ 113 Accordingly, all of defendant’s constitutional challenges to his 25-year sentence
enhancement are legally meritless and leave to file a successive postconviction petition was
properly denied. See Smith, 2014 IL 115946, ¶ 35.
¶ 114 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 115 Affirmed.
41 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482635/ | Filed 11/9/22 P. v. Truong CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G060773
v. (Super. Ct. No. 19NF2484)
JONATHAN TRUONG, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Steven
D. Bromberg and Terri K. Flynn-Peister, Judges. Affirmed.
Laura Vavakin, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Melissa Mandel, Teresa
Torreblanca, and Britton B. Lacy, Deputy Attorneys General, for Plaintiff and
Respondent.
Jonathan Truong appeals from a judgment after the jury convicted him of
two counts of possessing drugs for sale. Truong argues the trial court erred by denying
his motion to suppress evidence. We disagree and affirm the judgment.
FACTS
Late one night, Officer Billy Phu was on patrol when he saw Truong
standing on a skateboard looking into a backpack. With his body-worn camera activated,
Phu approached Truong and spoke with him. Phu asked Truong if he had any controlled
substances. Truong answered, “I have some meth dude.”
Phu handcuffed Truong and asked if he had anything else. Truong said he
had heroin. Phu searched him and found bags containing 2.0 grams of methamphetamine
and a bag containing 0.536 grams of heroin.
Truong consented to a search of his cell phone. Phu found messages he
believed indicated a plan to sell controlled substances. Phu asked about the text
messages. Truong admitted he was selling the methamphetamine and heroin to an
individual in another state.
An information charged Truong with possession of methamphetamine for
sale (Health & Saf. Code, § 11378; count 1) and possession of heroin for sale (Health &
Saf. Code, § 11351; count 2). The information alleged he suffered three prior strike
convictions (Pen. Code, §§ 667, subds. (d) & (e)(2)(A); 1170.12, subds. (b) & (c)(2)(A))
and served a prior prison term (Pen. Code, § 667.5, subd. (b)).
Truong filed a motion to suppress evidence. The prosecution filed
opposition, and Truong filed a reply. The trial court denied the motion.
A jury convicted Truong of both counts. At a bifurcated bench trial, the
trial court found the three strike priors true. At sentencing, the court struck the priors,
sentenced Truong to jail with credit for time served, and placed him on two years of
formal probation.
2
DISCUSSION
Truong contends the trial court erred by denying his motion to suppress
evidence because it was not a consensual encounter. We disagree.
A. Background
Truong moved to suppress inter alia the drugs, the body-worn camera
footage, and his statements because Phu unlawfully detained him. In its opposition, the
prosecution argued the initial contact was consensual and the search was lawful because
Truong was on probation, he consented, and Phu arrested him. In reply, Truong asserted
the detention was unlawful.
At the hearing, Phu testified he was on patrol by himself around 10:48 p.m.
when he saw Truong standing in the street between two parked vehicles. Phu stopped his
marked patrol vehicle on the wrong side of the street behind Truong. Phu’s vehicle did
not block or trap Truong’s path of travel, and Phu did not activate his siren or overhead
lights. Phu did not brandish his weapon.
Phu, who was in uniform, approached Truong from behind. Truong was
wearing a hooded sweatshirt with the hood over his head and “digging in a backpack.”
When Phu got out of his vehicle, he said, “Police department, man. What’s goin’ [sic]
on?” Phu testified he identified himself to Truong for his own safety and Truong’s safety
because based on his training and experience the neighborhood was “a high-crime area
and part of the territory of a known gang in Fullerton called Baker Street.” Phu said,
“Can you take your hands out of the bag for me?” Truong raised his hands in the air.
Phu asked Truong several questions, including the following: “What’s
your name dude?”; “Where you comin’ from bro?”; and “Where do you live at?” When
Phu asked if he was on probation, Truong responded, “[S]ummary probation.”
Following a couple background questions, Phu asked, “Anything illegal on
you at all?” Truong replied, “I have some meth dude.” Phu asked whether he had
3
anything else and confirmed he was subject to a probation search. At some point a
second officer arrived.
Phu asked him to take off his backpack and place his hands behind his
back. When Phu asked whether he had anything else, Truong admitted he had heroin.
Phu searched Truong and recovered bags containing methamphetamine and
heroin, and a cell phone. After Truong consented to Phu searching his phone, Phu found
messages that were consistent with drug sales.
The trial court denied Truong’s motion to suppress evidence concluding it
was a consensual encounter. The court mused one day the Supreme Court would address
the “significant issue” of whether it was consensual when the person refused to talk to the
1
officer and walked away. It added, “If I’m stopped by a police officer, I’m not going to
feel safe to walk away and not say anything. . . . I have a right to walk away. [¶]
[Truong] had a right to walk away.” The court opined once Truong said he was on
probation and had methamphetamine and heroin, “[i]t comes pretty easily” for Phu.
B. Law & Analysis
“An officer may approach a person in a public place and ask if the person is
willing to answer questions. If the person voluntarily answers, those responses, and the
officer’s observations, are admissible in a criminal prosecution. [Citations.] Such
consensual encounters present no constitutional concerns and do not require justification.
[Citation.] However, ‘when the officer, by means of physical force or show of authority,
has in some way restrained the liberty of a citizen,’ the officer effects a seizure of that
person, which must be justified under the Fourth Amendment to the United States
Constitution. [Citations.] In situations involving a show of authority, a person is seized
1
In the future, however, our Supreme Court may provide greater guidance
on the concept of what constitutes a consensual encounter. But we are bound to follow
that law as it currently exists.
4
‘if “in view of all of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave,”’ or ‘“otherwise terminate the
encounter,”’ [citation], and if the person actually submits to the show of authority
[citation].” (People v. Brown (2015) 61 Cal.4th 968, 974 (Brown).)
“Circumstances establishing a seizure might include any of the following:
the presence of several officers, an officer’s display of a weapon, some physical touching
of the person, or the use of language or of a tone of voice indicating that compliance with
the officer’s request might be compelled. [Citations.] The officer’s uncommunicated
state of mind and the individual citizen’s subjective belief are irrelevant in assessing
whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]” (In
re Manuel G. (1997) 16 Cal.4th 805, 821.) On review of denial of a suppression motion,
we defer to the trial court’s factual findings when supported by substantial evidence, but
exercise independent judgment to determine whether, on the facts found, the search was
reasonable under Fourth Amendment standards. (Brown, supra, 61 Cal.4th at p. 975.)
Here, the trial court properly denied Truong’s motion to suppress evidence
because it was a consensual encounter. We watched the body-worn camera footage.
When Phu stopped his patrol vehicle, he did not restrict Truong’s path of travel. Indeed,
the body-worn camera footage shows Truong had ample room to walk away and continue
on his path. (People v. Franklin (1987) 192 Cal.App.3d 935, 940 [officer parking behind
pedestrian not a detention because did not block path].) At the outset, Phu was the only
officer present, although another officer arrived after Truong admitted he was on
probation and possessed methamphetamine. Phu neither brandished his weapon nor
touched Truong until the time he handcuffed Truong. Contrary to Truong’s claim, Phu’s
language and tone did not indicate he would compel compliance with his request.
(United States v. Drayton (2002) 536 U.S. 194, 203-204 [finding there was no illegal
search and seizure when police officer questioned defendant in a polite tone and did not
5
brandish a weapon or make intimidating movements].) Phu’s tone was casual and
conversational.
Truong asserts Phu’s command to take his hands out of his bag “amounted
to an illegal detention.” The audio on this portion of the footage is difficult to decipher.
Truong states there is an “almost inaudible ‘can you’” before Phu told him to take his
hands out of his bag. Even if it was a command and not a request, it does not
“automatically transform a consensual encounter into a detention.” (In re Frank V.
(1991) 233 Cal.App.3d 1232, 1239 [merely asking suspect to take hands out of pockets
not detention].) Truong’s subjective belief, including that he raised his hands, was
irrelevant in determining whether this was a consensual encounter.
Truong makes much of the fact the trial judge mused that if an officer
stopped him, he would not feel free to walk away and refuse to answer questions. The
trial judge’s musings about a hypothetical encounter are irrelevant.
Truong relies on several cases to support his contention Phu detained him.
His reliance on People v. Kasrawi (2021) 65 Cal.App.5th 751, 757, review granted
September 1, 2021, S270040, and People v. Garry (2007) 156 Cal.App.4th 1100, 1111, is
misplaced. In those cases, the officers used a spotlight on the suspect. Here, Phu did not
illuminate Truong with a spotlight.
He also relies on People v. Jones (1991) 228 Cal.App.3d 519. In that case,
an officer pulled his patrol car “to the wrong side of the road,” parked it “diagonally
against the traffic,” got out, and told the defendant, who was walking away, to “‘“Stop.
Would you please stop.”’” (Id. at pp. 522-523.) Here, although Phu parked his car on the
opposite side of the street, he did not park diagonally to obstruct all traffic and did not
obstruct Truong’s path of travel. Additionally, Phu did not order Truong to stop, he said,
“What’s goin’ on?” In view of all the circumstances, the trial court properly denied
Truong’s motion to suppress.
6
DISPOSITION
The judgment is affirmed.
O’LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
MOTOIKE, J.
7 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482632/ | USCA4 Appeal: 22-1063 Doc: 22 Filed: 11/08/2022 Pg: 1 of 3
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1063
MARVIS ERLINDO MARTINEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
Submitted: October 26, 2022 Decided: November 8, 2022
Before WYNN and HEYTENS, Circuit Judges, and MOTZ, Senior Circuit Judge.
Petition denied by unpublished per curiam opinion.
ON BRIEF: Arnedo S. Valera, LAW OFFICES OF VALERA & ASSOCIATES P.C.,
Fairfax, Virginia, for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney
General, John S. Hogan, Assistant Director, Matthew A. Spurlock, Office of Immigration
Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
USCA4 Appeal: 22-1063 Doc: 22 Filed: 11/08/2022 Pg: 2 of 3
PER CURIAM:
Marvis Erlindo Martinez, a native and citizen of Honduras, petitions for review of
an order of the Board of Immigration Appeals (“Board”) adopting and affirming the
Immigration Judge’s (“IJ”) decision denying Martinez’s application for cancellation of
removal under 8 U.S.C. § 1229b(b)(1). The IJ concluded that Martinez’s application failed
because he did not establish that his removal to Honduras would result in an exceptional
and extremely unusual hardship to his United States citizen son. We deny the petition for
review.
The Attorney General “‘may cancel removal’ of an applicant who meets four
statutory criteria: 1) that the applicant has been physically present in the United States for
at least ten continuous years, 2) that the applicant had been a person ‘of good moral
character’ during that ten-year period, 3) that the applicant had not committed certain
enumerated offenses, and 4) that the applicant ‘establishes that removal would result in
exceptional and extremely unusual hardship to the [applicant’s citizen or lawful permanent
resident] spouse, parent, or child[ren].’” Gonzalez Galvan v. Garland, 6 F.4th 552, 557
(4th Cir. 2021) (alterations in original) (quoting 8 U.S.C. § 1229b(b)(1)).
In Gonzalez Galvan, we held that the IJ’s ruling that an applicant has not met the
exceptional and extremely unusual hardship requirement of § 1229b(b)(1) is a mixed
question of law and fact that we possess jurisdiction to review under 8 U.S.C.
§ 1252(a)(2)(D). Id. at 560. But in performing that review, we may not disturb “the IJ’s
factual findings related to the hardship determination,” and we assess only whether “the IJ
erred in holding that [the] evidence failed as a matter of law to satisfy the statutory standard
2
USCA4 Appeal: 22-1063 Doc: 22 Filed: 11/08/2022 Pg: 3 of 3
of exceptional and extremely unusual hardship.” Id. at 561 (internal quotation marks
omitted). Our review of that legal question is de novo. Id.
After reviewing the record, we are satisfied that the IJ “applied the correct statutory
standard, considered all the evidence, and adequately explained the reasons for his ruling.”
Id. We therefore conclude that the IJ did not commit an error of law in denying Martinez’s
application for cancellation of removal.
Accordingly, we deny the petition for review. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
PETITION DENIED
3 | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482644/ | Withopf v Rapid Tr. Servs., Inc. (2022 NY Slip Op 06286)
Withopf v Rapid Tr. Servs., Inc.
2022 NY Slip Op 06286
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
VALERIE BRATHWAITE NELSON
CHERYL E. CHAMBERS
LILLIAN WAN, JJ.
2020-03728
(Index No. 601512/13)
[*1]Corrine Withopf, etc., appellant,
vRapid Transit Services, Inc., et al., defendants, Premier Home Health Care Services, Inc., et al., respondents.
Parker Waichman, LLP, Port Washington, NY (Jay L. T. Breakstone and Stephenie L. Bross of counsel), for appellant.
Miranda Slone Sklarin Verveniotis, LLP, Mineola, NY (Kelly M. Zic and Ondine Slone of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Thomas Feinman, J.), dated May 1, 2020. The order, insofar as appealed from, granted those branches of the motion of the defendants Premier Home Health Care Services, Inc., and Marie Doninelli which were for summary judgment dismissing the amended complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Marie Mascioli commenced this action to recover damages for personal injuries she allegedly sustained when she fell from a wheelchair while traveling in an ambulette owned by the defendant Rapid Transit Services, Inc., and operated by the defendant James Jones. At the time of the accident, Mascioli was accompanied by her home health aide, the defendant Marie Doninelli, who was employed by the defendant Premier Home Health Care Services, Inc. (hereinafter Premier). The amended complaint alleged, inter alia, that Doninelli was negligent in failing to properly secure Mascioli to the ambulette. Mascioli died from unrelated causes while this action was pending in the Supreme Court, and the administrator of her estate was substituted as plaintiff.
Doninelli and Premier (hereinafter together the Premier defendants) moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against them. The evidence submitted in support of the motion included the transcripts of the deposition testimony of Doninelli and Jones. While their accounts differed on the events in the moments preceding the fall, both testified that Mascioli fell out of her wheelchair onto the floor and they each observed that a piece of the wheelchair seatbelt had broken off. Further, Doninelli testified that the seatbelt on the wheelchair was secure when she pushed Mascioli to the curb for transfer to the ambulette, that she did not assist beyond that point, and that Jones brought Mascioli in her wheelchair into the ambulette and secured her and the wheelchair for travel. Doninelli testified that she observed Jones place certain clamps onto the wheelchair and she was not aware of any other straps or security measures that should have been taken. Jones testified that he would not permit the home health aide to [*2]manipulate the wheelchair from the time that he met Mascioli at the curb until he brought her out of the ambulette at the destination, and that he alone brought Mascioli into the ambulette and secured her for travel. The Premier defendants also submitted evidence that a home health aide's responsibilities did not include supervising or assisting with the securing of a patient within an ambulette.
In opposition to the motion, the plaintiff pointed to Jones's deposition testimony that there was an additional seatbelt available to secure Mascioli within the ambulette, but he did not use it on the day in question. The plaintiff submitted the affidavit of a home health aide who opined that the proper standard of care required a home health aide accompanying a patient to be familiar with the transporting vehicle's available safety equipment and to ensure that the driver utilized it. In an order dated May 1, 2020, the Supreme Court, inter alia, granted those branches of the Premier defendants' motion which were for summary judgment dismissing the amended complaint insofar as asserted against them. The plaintiff appeals.
"To prove a prima facie case of negligence, a plaintiff must demonstrate the existence of a duty, a breach of that duty, and that the breach of such duty was a proximate cause of his or her injuries" (Fox v Marshall, 88 AD3d 131, 135; see Ferreira v City of Binghamton, 38 NY3d 298, 308; PNC Bank, N.A. v Steinhardt, 159 AD3d 999, 1000). "In the absence of duty, there is no breach and without a breach there is no liability" (Pulka v Edelman, 40 NY2d 781, 782; see Fox v Marshall, 88 AD3d at 135).
Here, the Premier defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that Doninelli did not breach any duty of care to Mascioli (cf. Branda v MV Pub. Transp., Inc., 139 AD3d 636, 637; Garcia v All Metro Health Care, 108 AD3d 742, 743). Their submissions demonstrated that the ambulette driver, not Doninelli, was responsible for securing Mascioli and her wheelchair to the ambulette for travel. In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiff's expert was insufficient to raise a triable issue of fact because it was conclusory, lacking in foundation, and failed to identify any specific industry standard upon which the affiant relied in concluding that Doninelli was negligent (see Thornberg v Town of Islip, 127 AD3d 1162, 1163; Tucci v Starrett City, Inc., 97 AD3d 811, 813; Bohan v F.R.P. Sheet Metal Contr. Corp., 58 AD3d 781).
Accordingly, the Supreme Court properly granted those branches of the Premier defendants' motion which were for summary judgment dismissing the amended complaint insofar as asserted against them.
BARROS, J.P., BRATHWAITE NELSON, CHAMBERS and WAN, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487515/ | August, 1817. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487516/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487517/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487519/ | August, 1817. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487520/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487541/ | By the Court.
Considering the nature of this account, that it has not been signed by the accountant, that the fees are marked on it to be due, and that this Court may inquire into all matters touching accounts passed, or said to be passed by the Register, the whole account should be annulled and vacated. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487570/ | No opinion found. Click here to view source material. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487612/ | Per Curiam.
The effect of this arrangement between the Bank and McKinney was to give McKinney a credit of 168 days beyond the time of payment of these notes. Why were the notes protested and the bond taken for their amount? The answer is, to supersede the necessity of payment or of renewing the notes with a new indorser. Robeson’s death gave rise to the. transaction. The bond was a substitute for an indorser. McKinney paid the interest on these notes every sixty days, from their protest in November and December, 1812, to February 25, 1815, according to the arrangement. It is evident that this arrangement was the cause of the credit given. It was further agreed that the credit of McKinney in the Bank should not be affected by the protest, and it was not. The protests were merely formal, and were not designed to be enforced against McKinney.
Why were these protests made, the bond taken with a credit of 168 days, and agreement made to pay the interest every sixty days, and the interest actually paid for fourteen or fifteen months, if it was not the clear intention of the parties that McKinney should have time given at least for 168 days? After this arrangement they could not have put the notes in suit until the expiration of 168 days, he paying the interest. This is the plain import of the agreement. Here then, without the consent of the indorser, time was given to McKinney; and however the bond may have [been] considered as a collateral security, it is manifest that it was acted on as the principal and only security. It does not appear when proceedings were had on this bond, but certainly not until after February 25, 1815, the time of the last payment of interest. Be that though as it may, it superseded all proceedings against McKinney on the notes and against the representatives of Robeson, until this suit was commenced.
By giving time, the Bank took on itself all responsibility, and discharged the indorser. It was idle to declare in the indorsement on the bond that the taking the bond should not release *656the indorser. Nothing but a reservation of the remedy against him, with his consent or the consent of his representatives, if he were then dead, could continue his liability. This we think is a stronger case than Hedges against The Farmers’ Bank.
Judgment affirmed.
Note (made April 2, 1822, on reading the case, Ex parte Gifford, 6 Ves.Jr. 805). Although the consent of the indorser was not had to the agreement indorsed on the bond, yet, did not the reservation of the remedy against the indorser amount to an agreement of McKinney that Robeson might still pay the money and then proceed against him? Was it not the consent of McKinney that he should be liable to Robeson if he paid the money? In short, were not all remedies reserved to all parties by this agreement?
(April 3, 1822.) Though the decision is right, I fear that the reasoning of the Court is not perfectly correct. After the death of Robeson, the indorser, his administrators could not pay the debt unless the Bank proved it; and the continuation of the credit at two several times for 168 days each, gave time far beyond the original agreement, and there was no reservation of the remedy against the indorser for these periods. Besides, his death ought to have closed the business, as his administrators could not pay without probate and some act of the Bank. The death alone of the indorser without the actual consent of his administrators, I think, forbade any enlargement of the time, for they were bound to settle his estate in one year, and ought not by implication to be made parties to a new agreement. Still, according to the doctrine in 6 Ves.Jr., if they had paid the money I do not see but that they could have proceeded against McKinney; for his reservation of the remedy reserved their remedy against him. But the Bank must first have moved by making probate. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482657/ | People v Rivera (2022 NY Slip Op 06268)
People v Rivera
2022 NY Slip Op 06268
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
JOSEPH J. MALTESE
PAUL WOOTEN
LILLIAN WAN, JJ.
2019-00957
(Ind. No. 194/18)
[*1]The People of the State of New York, respondent,
vSenate Rivera, appellant.
Patricia Pazner, New York, NY (Alice R. B. Cullina of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart and Timothy Pezzoli of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Alexander Jeong, J.), rendered December 17, 2018, convicting him of criminal sale of a controlled substance in the first degree and criminal possession of a weapon in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, without a hearing, of those branches of the defendant's omnibus motion which were to controvert search warrants and suppress physical evidence seized in the execution thereof.
ORDERED that the judgment is affirmed.
After the issuance of three search warrants based upon information from two undercover police officers and a confidential informant, the police recovered one loaded pistol, ammunition, heroin, fentanyl, and drug paraphernalia from inside two apartments located at 50 Caroline Street in Richmond County.
The defendant moved, inter alia, to controvert the search warrants and suppress the evidence seized by the police. The Supreme Court denied the defendant's motion. The defendant thereafter entered a plea of guilty to one count of criminal sale of a controlled substance in the first degree and one count of criminal possession of a weapon in the second degree. The defendant appeals.
As an initial matter, contrary to the People's contention, the defendant's contention that one of the warrants was not supported by probable cause is preserved for appellate review. Although the defendant did not raise any arguments related to whether the search warrant was supported by probable cause in his motion, inter alia, to controvert the search warrants and suppress the evidence seized in the execution thereof, the Supreme Court "expressly decided" the issue of whether the warrant was supported by probable cause (see CPL 470.05[2]; see generally People v Palmer, 84 AD3d 1414).
Contrary to the defendant's contention, the Supreme Court properly denied those branches of his motion which were to controvert search warrants and suppress the evidence seized in the execution thereof. "There is a strong judicial preference for search warrants" (People v Corr, [*2]28 AD3d 574, 575; see People v Hanlon, 36 NY2d 549, 558). "The search warrant application must provide the court with sufficient information to support a reasonable belief that evidence of illegal activity will be present at the specific time and place of the search" (People v Corr, 28 AD3d at 575; see People v Bigelow, 66 NY2d 417, 423). Here, there was probable cause to issue the subject search warrants (see People v Bigelow, 66 NY2d at 423; People v Williams, 249 AD2d 343, 344).
The defendant's contention that the Supreme Court erred in upholding the provision in the search warrants permitting the police officers to enter the subject location without announcing their presence is unpreserved for appellate review, and we decline to reach the issue in the exercise of our interest of justice jurisdiction (see CPL 470.05[2]).
Accordingly, we affirm the defendant's judgment of conviction.
DUFFY, J.P., MALTESE, WOOTEN and WAN, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482651/ | Shan Yun Lin v Lau (2022 NY Slip Op 06279)
Shan Yun Lin v Lau
2022 NY Slip Op 06279
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
PAUL WOOTEN
DEBORAH A. DOWLING
LILLIAN WAN, JJ.
2019-09704
(Index No. 715728/18)
[*1]Shan Yun Lin, et al., respondents,
vJay Lau, et al., appellants, et al., defendants.
Winget, Spadafora & Schwartzberg, LLP, New York, NY (Anthony D. Green and Alexander A. Truitt of counsel), for appellants.
Xue & Associates, P.C., Glen Cove, NY (Benjamin B. Xue and Michael S. Romero of counsel), for respondents.
DECISION & ORDER
In an action, inter alia, to recover damages for legal malpractice and breach of fiduciary duty, the defendants Jay Lau and Lau & Associates, P.C., appeal from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered July 12, 2019. The order, insofar as appealed from, denied those defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiffs commenced this action against the defendant Jay Lau and his law firm, the defendant Lau & Associates, P.C. (hereinafter together the Lau defendants), among others, asserting, as against the Lau defendants, causes of action to recover damages for legal malpractice and breach of fiduciary duty. The complaint alleged that the Lau defendants represented the plaintiffs in connection with the formation of Wong Real Estate Fund I, LLC (hereinafter WRE I), the receipt of investment funds to be held in escrow, and the disbursement of those funds.
According to the complaint, the purpose of WRE I was to purchase and develop certain property located on 41st Avenue in Flushing. However, the plaintiffs' funds held in the Lau defendants' escrow account were disbursed in connection with a different property, located on 77th Street in Elmhurst (hereinafter the 77th Street property), which was purchased by another client of the Lau defendants. Neither WRE I nor the plaintiffs received any interest in the 77th Street property.
The Lau defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the grounds, inter alia, that it failed to state a cause of action and that a defense was founded upon documentary evidence. The Supreme Court denied the motion, and the Lau defendants appeal.
The existence of an attorney-client relationship is an essential element of a cause of action to recover damages for legal malpractice (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 792). "An attorney-client relationship may exist in the [*2]absence of a retainer or fee" (Willoughby Rehabilitation & Health Care Ctr., LLC v Webster, 190 AD3d 887, 889). "In determining the existence of an attorney-client relationship, a court must look to the actions of the parties to ascertain the existence of such a relationship" (Wei Cheng Chang v Pi, 288 AD2d 378, 380). "[A] party's unilateral belief does not confer upon him or her the status of client. Rather, to establish an attorney-client relationship, there must be an explicit undertaking to perform a specific task" (Willoughby Rehabilitation & Health Care Ctr., LLC v Webster, 190 AD3d at 889; see Volpe v Canfield, 237 AD2d 282, 283).
Here, in affidavits properly submitted to amplify the allegations in the complaint (see Leon v Martinez, 84 NY2d 83, 88), the plaintiffs averred that Lau met with them to form WRE I and orally informed them that he was representing them, instructed them to wire funds to his escrow account, committed to certain conditions of disbursement of those funds, and advised that he would continue to represent them on matters related to the property to be acquired by WRE I. Contrary to the Lau defendants' contention, assuming these allegations to be true and affording the plaintiffs the benefit of every possible favorable inference (see J.P. Morgan Sec. Inc. v Vigilant Ins. Co., 21 NY3d 324, 334), they sufficiently alleged the existence of an attorney-client relationship (see Ripa v Petrosyants, 203 AD3d 770; Blank v Petrosyants, 203 AD3d 685; Mawere v Landau, 130 AD3d 986, 990).
Further, since legal malpractice actions are not subject to special pleading requirements, "a legal malpractice plaintiff need not, in order to assert a viable cause of action, specifically plead that the alleged malpractice fell within the agreed scope of the defendant's representation" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 39; see Fitzsimmons v Pryor Cashman LLP, 93 AD3d 497, 498). "Rather, a legal malpractice defendant seeking dismissal pursuant to CPLR 3211(a)(1) must tender documentary evidence conclusively establishing that the scope of its representation did not include matters relating to the alleged malpractice" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d at 39 [emphasis omitted]). Here, the Lau defendants failed to submit such documentary evidence.
Accordingly, the Supreme Court properly denied dismissal of the legal malpractice cause of action.
The Supreme Court also properly denied dismissal of the breach of fidiciary duty cause of action as duplicative of the legal malpractice cause of action. "An attorney holding funds in escrow owes a fiduciary duty to anyone with a beneficial interest in the trust" (Baquerizo v Monasterio, 90 AD3d 587, 587 [internal quotation marks omitted]; see Levit v Allstate Ins. Co., 308 AD2d 475, 477; Takayama v Schaefer, 240 AD2d 21, 25). An escrow agent has a duty not to deliver the escrow funds to anyone except upon strict compliance with the conditions imposed (see Sasidharan v Piverger, 145 AD3d 814, 815; Baquerizo v Monasterio, 90 AD3d at 587; Matter of Ginzburg, 89 AD3d 938, 941). Here, the complaint sufficiently pleaded the existence of an oral escrow agreement (see Gargano v Morey, 165 AD3d 889, 891), invoking fiduciary duties even in the absence of an attorney-client relationship. Therefore, as the court correctly determined, the breach of fiduciary duty cause of action was properly pleaded in the alternative, in the event that it is ultimately determined that no attorney-client relationship existed or that the Lau defendants' conduct related to the escrow funds was not within the scope of any such relationship.
Finally, contrary to the Lau defendants' contention, an exculpatory clause in the limited liability company agreement of WRE I did not conclusively establish a defense to the breach of fiduciary duty cause of action as a matter of law. Insofar as the exculpatory clause is applicable to the Lau defendants' actions taken in good faith as an escrow agent (cf. Baquerizo v Monasterio, 90 AD3d at 587), the complaint sufficiently alleges that the challenged disbursement was not made in good faith or was the result of the Lau defendants' gross negligence, and the documentary evidence did not conclusively defeat those allegations (see Elbayoumi v TD Bank, N.A., 185 AD3d 786, 789; Lenoci v Secure Alarm Installations, LLC, 97 AD3d 800, 801).
Accordingly, the Supreme Court properly denied the Lau defendants' motion pursuant [*3]to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.
IANNACCI, J.P., WOOTEN, DOWLING and WAN, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482654/ | People v Taylor (2022 NY Slip Op 06271)
People v Taylor
2022 NY Slip Op 06271
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
ANGELA G. IANNACCI
WILLIAM G. FORD
HELEN VOUTSINAS, JJ.
2018-12084
(Ind. No. 1670/15)
[*1]The People of the State of New York, respondent,
vMichael Taylor, appellant.
Jillian S. Harrington, Staten Island, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Tammy J. Smiley and Jason R. Richards of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Nassau County (Howard E. Sturim, J.), rendered August 29, 2018, convicting him of attempted murder in the second degree, attempted assault in the first degree (two counts), criminal possession of a weapon in the third degree (two counts), aggravated criminal contempt, and endangering the welfare of a child, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court did not err in permitting the admission into evidence of testimony regarding a prior incident of domestic violence between the defendant and the complainant. "'The evidence provided relevant background material to enable the jury to understand the defendant's relationship with the complainant and also served as proof of the defendant's intent'" (People v Gonzales, 186 AD3d 1711, 1712, quoting People v Braswell, 181 AD3d 818, 819; see generally People v Frankline, 27 NY3d 1113, 1115). Moreover, any prejudice to the defendant was minimized by the court's limiting instructions (see People v Durrant, 173 AD3d 890).
The defendant was not deprived of a fair trial by two instances of prejudicial testimony that were stricken from the record. The jury is presumed to have followed the Supreme Court's instructions not to consider stricken testimony (see People v Murphy, 168 AD3d 880). Additionally, contrary to the defendant's contention, the complainant's testimony that the defendant "had been away" prior to returning to live with the family was not prejudicial.
Contrary to the defendant's contention, viewing the record in its entirety, the defendant received meaningful representation (see People v Benevento, 91 NY2d 708, 713; People v Baldi, 54 NY2d 137). Further, he was not deprived of the effective assistance of counsel under the United States Constitution (see Strickland v Washington, 466 US 668; People v Richards, 208 AD3d 603).
The defendant's contention that the sentence imposed improperly penalized him for exercising his right to a jury trial is unpreserved for appellate review (see People v Cherry, 127 [*2]AD3d 879). In any event, the contention is without merit. The fact that the sentence imposed after trial was greater than the sentence offered during plea negotiations, is not, standing alone, an indication that the defendant was punished for proceeding to trial (see People v Perez, 132 AD3d 911, 912). There is no indication in the record that the sentence was the result of vindictiveness or retribution for the defendant's refusal to accept a plea offer and the exercise of his right to a jury trial (see id. at 912). Furthermore, the sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
CONNOLLY, J.P., IANNACCI, FORD and VOUTSINAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482655/ | People v Smith (2022 NY Slip Op 06270)
People v Smith
2022 NY Slip Op 06270
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
CHERYL E. CHAMBERS
JOSEPH A. ZAYAS
HELEN VOUTSINAS, JJ.
2019-13193
(Ind. No. 952/18)
[*1]The People of the State of New York, respondent,
vNoel Smith, appellant.
Steven A. Feldman, Manhasset, NY, for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Barry E. Warhit, J.), rendered September 12, 2019, convicting him of driving while intoxicated and aggravated unlicensed operation of a motor vehicle in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the Supreme Court's involvement in eliciting from the defendant a purported waiver of his right to appeal did not affect the knowing, voluntary, and intelligent nature of his plea of guilty (see People v Valentin, 175 AD3d 1569; see also People v Yancey, 204 AD3d 1044; People v Small, 203 AD3d 756).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
BARROS, J.P., CHAMBERS, ZAYAS and VOUTSINAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482650/ | Valdez v MTA Bus Co. (2022 NY Slip Op 06280)
Valdez v MTA Bus Co.
2022 NY Slip Op 06280
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
REINALDO E. RIVERA
DEBORAH A. DOWLING
JANICE A. TAYLOR, JJ.
2020-08902
(Index No. 705663/18)
[*1]Francia Valdez, appellant,
vMTA Bus Company, et al., respondents, et al., defendant.
Siegel & Coonerty, LLP, New York, NY (Michael P. Peters of counsel), for appellant.
Morris, Duffy, Alonso, Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered November 24, 2020. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the defendants MTA Bus Company and Christopher Beckford, incorrectly sued herein as Christer Beckford.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On August 13, 2017, the plaintiff allegedly was injured while riding as a passenger on a bus owned by the defendant MTA Bus Company (hereinafter MTA) and operated by the defendant Christopher Beckford, incorrectly sued herein as Christer Beckford. The bus allegedly was involved in an accident with a vehicle operated by the defendant Hai Sun (hereinafter the Hai Sun vehicle). The plaintiff commenced this action to recover damages for personal injuries allegedly sustained by her in the accident. Thereafter, the plaintiff moved, inter alia, for summary judgment on the issue of liability against MTA and Beckford, alleging that they violated Vehicle and Traffic Law §§ 1143, 1128(a), and 1162. In an order entered November 24, 2020, the Supreme Court, among other things, denied that branch of the plaintiff's motion. The plaintiff appeals.
"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Hai Ying Xiao v Martinez, 185 AD3d 1014, 1014 [internal quotation marks omitted]; see Rodriguez v City of New York, 31 NY3d 312; Shah v MTA Bus Co., 201 AD3d 833, 834). Here, the plaintiff failed to meet her prima facie burden. In support of that branch of her motion which was for summary judgment on the issue of liability against MTA and Beckford, the plaintiff primarily relied upon video footage taken from certain cameras on the bus. However, none of the video footage showed the roadway from Beckford's vantage point on the bus or showed the alleged impact between the bus and the Hai Sun vehicle. The plaintiff's motion was made prior to conducting the depositions of both Beckford and Hai Sun. At her own deposition, the plaintiff testified that she did not observe the actual contact between the bus and the Hai Sun vehicle. Accordingly, the Supreme Court properly denied that [*2]branch of the plaintiff's motion which was for summary judgment on the issue of liability against MTA and Beckford, without regard to the sufficiency of their opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
DUFFY, J.P., RIVERA, DOWLING and TAYLOR, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482646/ | Wijesinghe v Buena Vida Corp. (2022 NY Slip Op 06284)
Wijesinghe v Buena Vida Corp.
2022 NY Slip Op 06284
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
ROBERT J. MILLER
WILLIAM G. FORD
HELEN VOUTSINAS, JJ.
2019-13615
(Index No. 15824/14)
[*1]Victor Wijesinghe, et al., respondents,
vBuena Vida Corp., etc., defendant, Wyckoff Heights Medical Center, et al., appellants.
Arshack, Hajek & Lehrman, PLLC, New York, NY (Lynn Hajek of counsel), for appellant Wyckoff Heights Medical Center.
Vaslas Lepowsky Hauss & Danke, LLP, Staten Island, NY (Karen Hauss of counsel), for appellant Jude Ozuzu.
Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York, NY (Samantha E. Quinn of counsel), for appellant Bernard Chukwuneke.
Kuharski, Levitz & Giovinazzo, Staten Island, NY (Lonny Levitz of counsel), for respondents.
DECISION & ORDER
In an action, inter alia, to recover damages for medical malpractice, etc., the defendants Wyckoff Heights Medical Center, Jude Ozuzu, and Bernard Chukwuneke separately appeal from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated September 23, 2019. The order denied the separate motions of the defendants Wyckoff Heights Medical Center, Jude Ozuzu, and Bernard Chukwuneke for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is reversed, on the law, with one bill of costs, and the separate motions of the defendants Wyckoff Heights Medical Center, Jude Ozuzu, and Bernard Chukwuneke for summary judgment dismissing the complaint insofar as asserted against each of them are granted.
The plaintiff Victor Wijesinghe (hereinafter the injured plaintiff), and his wife suing derivatively, commenced this action, alleging, inter alia, that the defendants Wyckoff Heights Medical Center (hereinafter Wyckoff), Jude Ozuzu, and Bernard Chukwuneke committed medical malpractice in treating the injured plaintiff following a slip-and-fall accident. Wyckoff, Ozuzu, and Chukwuneke (hereinafter collectively the moving defendants) separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied the motions, determining that the plaintiffs raised triable issues of fact in opposition to the moving defendants' respective prima facie showings. The moving defendants separately appeal.
"A defendant seeking summary judgment in a medical malpractice action bears the initial burden of establishing, prima facie, either that there was no departure from the applicable [*2]standard of care, or that any alleged departure did not proximately cause the plaintiff's injuries" (Michel v Long Is. Jewish Med. Ctr., 125 AD3d 945, 945; see Barrocales v New York Methodist Hosp., 122 AD3d 648, 649; Trauring v Gendal, 121 AD3d 1097, 1097; Berthen v Bania, 121 AD3d 732, 732). Where a defendant makes a prima facie showing on a motion for summary judgment, "the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician" (Spilbor v Styles, 191 AD3d 722, 723 [internal quotation marks omitted]; see Stukas v Streiter, 83 AD3d 18, 30). "General and conclusory allegations of medical malpractice, . . . unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician's summary judgment motion" (Myers v Ferrara, 56 AD3d 78, 84; see J.P. v Patel, 195 AD3d 852, 854). "In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record" (Tsitrin v New York Community Hosp., 154 AD3d 994, 996 [internal quotation marks omitted]; see Valentine v Weber, 203 AD3d 992, 993).
Here, Ozuzu and Chukwuneke each established their prima facie entitlement to judgment as a matter of law by submitting the affirmations of their medical experts, the injured plaintiff's medical records, and the transcripts of deposition testimony. This evidence demonstrated, prima facie, that Ozuzu and Chukwuneke did not depart from the applicable standard of care and that any alleged departures were not a proximate cause of the injured plaintiff's injuries (see Alvarez v Prospect Hosp., 68 NY2d 320, 325; Trauring v Gendal, 121 AD3d at 1098; Berthen v Bania, 121 AD3d at 733; Stukas v Streiter, 83 AD3d at 30-31). In opposition, the affirmation of the plaintiffs' expert offered merely conclusory and speculative assertions on the issue of proximate cause and, thus, failed to raise a triable issue of fact (see Zabary v North Shore Hosp. in Plainview, 190 AD3d 790, 794; Gilmore v Mihail, 174 AD3d 686, 687-688; Iodice v Giordano, 170 AD3d 971, 973). Accordingly, the Supreme Court should have granted the separate motions of Ozuzu and Chukwuneke for summary judgment dismissing the complaint insofar as asserted against each of them.
Further, the Supreme Court should have granted Wyckoff's motion for summary judgment dismissing the complaint insofar as asserted against it. Inasmuch as Ozuzu and Chukwuneke established that they could not be held liable, Wyckoff, as their employer, established that it could not be held liable under any theory of vicarious liability. A claim of vicarious liability cannot stand when "there is no primary liability upon which such a claim of vicarious liability might rest" (Karaduman v Newsday, Inc., 51 NY2d 531, 546; see Pereira v St. Joseph's Cemetery, 54 AD3d 835, 837; Rojas v Feliz, 24 AD3d 652). Nor does the complaint set forth any other basis upon which it could be held liable in this case.
Dismissal of the direct claim of medical malpractice mandates dismissal of the derivative cause of action (see Camadeo v Leeds, 290 AD2d 355, 356; Balestrero v Prudential Ins. Co. of Am., 283 App Div 794, affd 307 NY 709).
The plaintiffs' remaining contention is not properly before this Court.
CONNOLLY, J.P., MILLER, FORD and VOUTSINAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482649/ | Valdez v MTA Bus Co. (2022 NY Slip Op 06281)
Valdez v MTA Bus Co.
2022 NY Slip Op 06281
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
REINALDO E. RIVERA
DEBORAH A. DOWLING
JANICE A. TAYLOR, JJ.
2020-09253
(Index No. 705663/18)
[*1]Francia Valdez, plaintiff,
vMTA Bus Company, et al., respondents, Hai Sun, appellant.
The Law Offices of Michael E. Garron, P.C., Plainview, NY (Seth D. Cohen of counsel), for appellant.
Morris, Duffy, Alonso, Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Andrea M. Alonso of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Hai Sun appeals from an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered November 24, 2020. The order denied that defendant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.
ORDERED that the order is affirmed, with costs.
On August 13, 2017, the plaintiff allegedly was injured while riding as a passenger on a bus owned by the defendant MTA Bus Company and operated by the defendant Christopher Beckford, incorrectly sued herein as Christer Beckford. The bus allegedly was involved in an accident with a vehicle operated by the defendant Hai Sun. The plaintiff commenced this action against the defendants to recover damages for personal injuries allegedly sustained by her as a result of the accident. Thereafter, Hai Sun moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against him. In an order entered November 24, 2020, the Supreme Court denied Hai Sun's motion. Hai Sun appeals.
"Defendants moving for summary judgment in a personal injury action must demonstrate, prima facie, that they did not proximately cause the plaintiff's injuries" (Fargione v Chance, 154 AD3d 713, 714; see Fergile v Payne, 202 AD3d 928, 930; Wilson v Mazewski, 175 AD3d 1352, 1353). "Since there can be more than one proximate cause of an accident, a defendant seeking summary judgment must establish freedom from comparative fault as a matter of law" (Wilson v Mazewski, 175 AD3d at 1353; see Cattan v Sutton, 120 AD3d 537, 538).
Here, in support of his motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him, Hai Sun failed to eliminate the existence of triable issues of fact as to whether he contributed to the happening of the alleged accident. Even if, as contended by Hai Sun, he had the right-of-way, "a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision, to see what there is to be seen through the proper use of his or her senses, and to drive at a speed that is reasonable and prudent under the conditions, having regard to the actual and potential hazards then existing" (Pei Ru Guo v Efkarpidis, 185 AD3d [*2]949, 951-952). Accordingly, the Supreme Court properly denied Hai Sun's motion regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
DUFFY, J.P., RIVERA, DOWLING and TAYLOR, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482647/ | Wijesinghe v Buena Vida Corp. (2022 NY Slip Op 06283)
Wijesinghe v Buena Vida Corp.
2022 NY Slip Op 06283
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
ROBERT J. MILLER
WILLIAM G. FORD
HELEN VOUTSINAS, JJ.
2019-10494
(Index No. 15824/14)
[*1]Victor Wijesinghe, et al., respondents,
vBuena Vida Corp., etc., appellant, et al., defendants.
Goldberg Segalla LLP, Buffalo, NY (Meghan M. Brown of counsel), for appellant.
Kuharski, Levitz & Giovinazzo, Staten Island, NY (Lonny Levitz of counsel), for respondents.
DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, etc., the defendant Buena Vida Corp. appeals from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated April 29, 2019. The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
On January 10, 2014, the plaintiff Victor Wijesinghe (hereinafter the injured plaintiff) allegedly was injured when he slipped and fell on coffee that had dripped from an urn and accumulated on the floor in premises owned by the defendant Buena Vida Corp. (hereinafter Buena Vida). In November 2014, the injured plaintiff, and his wife suing derivatively, commenced this action against, among others, Buena Vida, inter alia, to recover damages for personal injuries. Buena Vida moved for summary judgment dismissing the complaint insofar as asserted against it, arguing, among other things, that it did not create or have actual or constructive notice of the allegedly dangerous condition that caused the injured plaintiff's accident. The Supreme Court denied the motion, determining, inter alia, that Buena Vida established its entitlement to judgment as a matter of law by demonstrating, prima facie, that it did not create the alleged hazardous condition or have actual or constructive notice of it, but in opposition, the plaintiffs raised a triable issue of fact on the issue of constructive notice. Buena Vida appeals.
"'A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the allegedly hazardous condition nor had actual or constructive notice of its existence'" (Griffin v PMV Realty, LLC, 181 AD3d 912, 912-913, quoting Steele v Samaritan Found., Inc., 176 AD3d 998, 999). A party who has actual knowledge of an ongoing and recurring dangerous condition can be charged with constructive notice of each specific recurrence of that condition (see Pagan v New York City Hous. Auth., 172 AD3d 888, 889). "A question of fact regarding a recurrent dangerous condition can be established by offering evidence that an ongoing and recurring dangerous condition existed in the area of the accident which was routinely left unaddressed" (Mauge v Barrow St. Ale House, 70 AD3d 1016, 1017).
Here, Buena Vida failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it. Buena Vida's submissions, which included a transcript of the injured plaintiff's deposition testimony, failed to eliminate all triable issues of fact as to whether it had constructive notice of a recurrent dangerous condition (see Butnik v Luna Park Hous. Corp., 200 AD3d 1013; Asprou v Hellenic Orthodox Community of Astoria, 185 AD3d 641). The injured plaintiff testified that he made numerous complaints regarding the leaking urn and no actions to eliminate the condition were taken.
Buena Vida's remaining contention is without merit.
Accordingly, Buena Vida's motion for summary judgment dismissing the complaint insofar as asserted against it was properly denied regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
CONNOLLY, J.P., MILLER, FORD and VOUTSINAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482969/ | People v West (2022 NY Slip Op 06290)
People v West
2022 NY Slip Op 06290
Decided on November 10, 2022
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered:November 10, 2022
110509B
[*1]The People of the State of New York, Respondent,
vSkylar West, Appellant.
Calendar Date:October 14, 2022
Before:Garry, P.J., Egan Jr., Clark, Ceresia and Fisher, JJ.
Aaron A. Louridas, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Clark, J.
Appeal from a judgment of the County Court of Albany County (Peter A. Lynch, J.), rendered April 2, 2018, convicting defendant upon his plea of guilty of the crime of gang assault in the first degree.
In satisfaction of a seven-count indictment, defendant pleaded guilty to gang assault in the first degree, with the understanding that he would be sentenced to a prison term of no less than 7 years and no more than 10 years to be followed by five years of postrelease supervision, and that the sentence would run consecutively to a sentence that he was already serving. As part of the plea agreement, defendant also purportedly waived the right to appeal. County Court thereafter sentenced defendant to 10 years in prison, to be followed by five years of postrelease supervision, with the sentence ordered to run consecutively to the prison sentence defendant was already serving. Defendant appealed, and this Court rejected counsel's Anders brief, withheld decision and assigned new counsel to represent defendant on the appeal (197 AD3d 1436 [3d Dept 2021]).
Initially, we agree with defendant that his waiver of the right to appeal is invalid. As we have previously found, this exact written appeal waiver contains overbroad language and County Court's brief colloquy regarding the waiver of the right to appeal did not cure its defects (see People v Stratton, 201 AD3d 1201, 1202 [3d Dept 2022], lv denied 38 NY3d 1036 [2022]; People v Robinson, 195 AD3d 1235, 1236 [3d Dept 2021]). As defendant's waiver of the right to appeal is unenforceable, defendant's challenge to the severity of the sentence imposed is not precluded. Nonetheless, we discern no basis upon which to disturb the sentence as unduly harsh or severe (see CPL 470.15 [6] [b]), given the violent nature of the crime and that the sentence imposed was both within the range agreed to as part of the plea agreement and well below the maximum sentence for a class B felony offense (see Penal Law §§ 70.02 [1] [a]; [3] [a]; 120.07; People v Sanders, 134 AD3d 1351, 1351 [3d Dept 2015]).
Defendant's challenge to the voluntariness of his plea is unpreserved for our review, as the record does not reflect that he made an appropriate postallocution motion, despite having ample opportunity to do so prior to sentencing (see People v Rubert, 206 AD3d 1378, 1380 [3d Dept 2022]; People v Davis, 204 AD3d 1072, 1074 [3d Dept 2022], lv denied 38 NY3d 1032 [2022]). Moreover, defendant did not make any statements during the plea colloquy that cast doubt upon his guilt, negated an element of the crime or called into question the voluntariness of his plea so as to trigger the narrow exception to the preservation rule (see People v Duckett, 205 AD3d 1229, 1230 [3d Dept 2022]; People v Pompey, 203 AD3d 1411, 1412 [3d Dept 2022], lv denied 38 NY3d 1009 [2022]). Defendant's claim of ineffective assistance of counsel, to the extent that it impacts the voluntariness of the plea, is similarly unpreserved for lack of an appropriate [*2]postallocution motion (see People v Loya, 204 AD3d 1255, 1256 [3d Dept 2022], lv denied 38 NY3d 1072 [2022]; People v Nack, 200 AD3d 1197, 1198 [3d Dept 2021], lv denied 38 NY3d 1009 [2022]). In any event, the alleged inadequacies involve matters outside of the record that are better explored in a CPL article 440 motion (see People v Linear, 200 AD3d 1498, 1499 [3d Dept 2021], lv denied 38 NY3d 951 [2022]).
Garry, P.J., Egan Jr., Ceresia and Fisher, JJ., concur.
ORDERED that the judgment is affirmed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482968/ | Savignano v Play (2022 NY Slip Op 06307)
Savignano v Play
2022 NY Slip Op 06307
Decided on November 10, 2022
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided and Entered:November 10, 2022
534785
[*1]Peter Savignano, Respondent- Appellant,
vRobert Play, Appellant- Respondent.
Calendar Date:September 9, 2022
Before:Garry, P.J., Egan Jr., Lynch, Clark and Ceresia, JJ.
Bosman Law, LLC, Blossvale (Robert Strum of counsel), for appellant-respondent.
Cuddy & Feder LLP, White Plains (Troy D. Lipp of counsel), for respondent-appellant.
Ceresia, J.
Cross appeals from an order of the Supreme Court (Lisa M. Fisher, J.), entered July 8, 2021 in Greene County, which, among other things, partially granted plaintiff's cross motion for summary judgment.
On May 11, 2020, plaintiff transmitted a signed form contract to defendant and his brother, Edward Play (hereinafter collectively referred to as the sellers), proposing to purchase real property owned by them for the asking price of $320,000. The property consists of approximately 53 acres of land with a cabin and two barns. The form contract included, as pertinent here, two contingencies. First, an attorney approval contingency required the parties to obtain approval by their respective attorneys as to all matters in the agreement. However, this contingency was deemed waived unless either attorney notified the other of his or her disapproval of the agreement, in writing, by May 20, 2020. Second, an inspection contingency contemplated the performance of several inspections. This contingency, too, was deemed waived unless plaintiff notified the sellers of the failure of any of the inspections. If plaintiff did so notify the sellers, and provided a copy of the relevant inspection report, then the agreement would be deemed cancelled and plaintiff's deposit returned, unless plaintiff elected to defer such cancellation for 10 days to permit the parties an opportunity to come to a written agreement on the inspection issue.
On May 12, 2020, plaintiff's attorney faxed to the sellers' attorney a proposed rider containing several additional terms. The sellers signed the original contract on May 13, 2020, and returned it to plaintiff, but did not sign the proposed rider. On May 18, 2020, plaintiff's attorney wrote to the sellers' attorney, confirming receipt of the signed contract and inquiring about the rider as well as several other documents to assist plaintiff with his title search. On June 17, 2020, plaintiff's attorney again wrote to the sellers' attorney, indicating that an inspection had revealed an inadequate well water flow rate and numerous electrical problems. Plaintiff's attorney advised that the problem with the well was "totally unsatisfactory" and "not acceptable" to plaintiff, that the well would need to be redrilled, and that if there was no adjustment in the purchase price to account for the redrilling, then plaintiff would "abandon" the contract. An inspection report was also provided to the sellers, confirming these issues.
On June 25, 2020, the sellers' attorney wrote to plaintiff's attorney, stating that the repairs would not be performed by the sellers because the property was being sold in "as is" condition, and inquiring as to whether plaintiff wished to proceed with the transaction. On July 12, 2020, plaintiff's real estate agent emailed the sellers' attorney indicating that plaintiff was willing to accept the property "as is." Shortly thereafter, the sellers began to express opposing positions as to whether they intended to proceed [*2]with the sale, with defendant telling their realtor and attorney that he did not wish to proceed, and Play advising plaintiff's attorney that he did wish to pursue the sale.
On August 3, 2020, plaintiff's attorney sent the sellers' attorney a letter declaring that time was of the essence and scheduling a closing date of September 4, 2020. A new attorney representing defendant responded on August 12, 2020, rejecting the time-of-the-essence demand, asserting that there existed no valid contract, and indicating that there would be no closing. On August 21, 2020, a new attorney representing plaintiff wrote to defendant's attorney, rejecting the August 12, 2020 letter and indicating that plaintiff intended to pursue the purchase or seek legal recourse. After the closing did not occur on the scheduled date, plaintiff filed a notice of pendency and commenced the instant action for breach of contract, seeking specific performance. By this point, Play had sold his interest in the property to defendant and, as such, plaintiff discontinued the action as against Play.
Defendant then moved to dismiss the complaint, and plaintiff cross-moved for summary judgment. Plaintiff also sought to have defendant's dismissal motion converted to a motion for summary judgment. Supreme Court granted the conversion request and permitted the parties to file additional submissions. By decision and order entered July 8, 2021, the court denied defendant's motion, granted plaintiff's cross motion as to liability and set the matter down for a trial on damages. Specifically, the court found that a valid contract existed between the parties which had not been canceled via any contingency. The court further determined that defendant's failure to proceed with the transaction constituted a breach of contract, entitling plaintiff to damages for which a trial would be appropriate. Defendant appeals from the denial of his motion, and plaintiff cross-appeals from the court's determination to hold a trial relative to damages.
Initially, we agree with Supreme Court that the parties entered into an enforceable contract. "It is a fundamental principle of contract law that a valid acceptance must comply with the terms of the offer" (Woodward v Tan Holding Corp., 32 AD3d 467, 469 [2d Dept 2006] [internal quotation marks and citations omitted]), and a purported acceptance that does not comply with the offer's terms is "equivalent to a rejection and counteroffer" (Lamanna v Wing Yuen Realty, 283 AD2d 165, 166 [1st Dept 2001] [internal quotation marks and citation omitted], lv denied 96 NY2d 719 [2001]; accord East Harlem Abyssinian Triangle Corp. v New York City Economic Dev. Corp., 137 AD3d 536, 537 [1st Dept 2016]). Here, plaintiff's transmission of the form contract and rider constituted an offer, and the sellers counteroffered by signing and returning to plaintiff only the form contract without the rider. Plaintiff then accepted the counteroffer by proceeding with the inspections, as "a counteroffer [*3]may be accepted by conduct" (Daimon v Fridman, 5 AD3d 426, 427 [2d Dept 2004]; accord Gator Hillside Vil., LLC v Schuckman Realty, Inc., 158 AD3d 742, 744 [2d Dept 2018]). We also agree with the court that plaintiff's counsel's May 18, 2020 letter did not constitute attorney disapproval of the contract under the attorney approval contingency. This letter merely acknowledged receipt of the signed contract and inquired as to the rider and other documents; in no way did it signal disapproval.
However, our view diverges with Supreme Court as to whether the contract was ultimately canceled. Plaintiff's attorney, in his letter of June 17, 2020, notified the sellers' attorney that the property had failed multiple inspections, and provided a copy of the relevant inspection report. This conduct, in accordance with the language set forth in the inspection contingency, rendered the contract "cancelled, null and void" unless plaintiff chose to defer cancellation for 10 days. Given that the letter from plaintiff's attorney also set forth potential ways in which the inspection issues could be resolved, we are satisfied that the 10-day option was exercised. That said, the parties did not reach a written agreement on these issues within 10 days as was expressly required pursuant to the inspection contingency (see Wilderhomes LLC v Zautner, 34 AD3d 1062, 1064 [3d Dept 2006]; compare Prendergast v Swiencicky, 183 AD3d 945, 946-947 [3d Dept 2020], lv denied 36 NY3d 944 [2020]). In that regard, although the sellers' attorney advised via email on June 25, 2020 that the property was being sold "as is," it was not until July 12, 2020 that plaintiff's realtor responded via email, agreeing to that condition. Plaintiff produced no evidence of any extension or waiver of the contractual 10-day time period. Therefore, under these circumstances, the contract was canceled by operation of the inspection contingency.
In light of our ruling herein, plaintiff's cross appeal has been rendered academic.
Garry, P.J., Egan Jr., Lynch and Clark, JJ., concur.
ORDERED that the order is reversed, on the law, with costs to defendant, plaintiff's motion for summary judgment denied, defendant's cross motion for summary judgment granted and complaint dismissed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482961/ | FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 10, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 201
State of North Dakota, Plaintiff and Appellee
v.
Wendy Michelle Davis-Heinze, Defendant and Appellant
No. 20220049
Appeal from the District Court of Barnes County, Southeast Judicial District,
the Honorable Jay A. Schmitz, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Tonya Duffy, State’s Attorney, Valley City, N.D., for plaintiff and appellee;
submitted on brief.
Kiara C. Kraus-Parr, Grand Forks, N.D., for defendant and appellant.
State v. Davis-Heinze
No. 20220049
Tufte, Justice.
[¶1] Wendy Davis-Heinze appeals from a criminal judgment convicting her of
reckless endangerment. She argues on appeal that the district court conducted
an off-the-record discussion with counsel outside the courtroom and outside of
the view of the public in violation of her right to public trial under the Sixth
Amendment. She also argues there was insufficient evidence to convict her. We
conclude the evidence was sufficient to support the conviction, and the non-
public discussion was not a trial closure in violation of the Sixth Amendment
public trial right. We affirm.
I
[¶2] Davis-Heinze was involved in an altercation with her then brother-in-
law, Martin Heinze. She pointed a gun at him, chased him with her vehicle as
he was attempting to escape in his tractor, and rammed his tractor with her
vehicle. The State charged her with one count of reckless endangerment under
circumstances manifesting an extreme indifference to the value of human life.
During deliberations, the jury asked the court to replay an audio recording and
submitted a written question to the court. While the jury was in the courtroom
after the court replayed the recording, a juror pointed out to the court that the
jury had asked a question on the sheet requesting to review the recording. The
trial judge directed the attorneys to approach and then step outside of the
courtroom to discuss how to respond to the question. There is no transcript of
what was said outside the courtroom.
II
[¶3] Davis-Heinze argues the court violated her right to public trial, because
the court closed part of the proceedings without Waller analysis and Davis-
Heinze did not waive her public trial right.
[¶4] “In all criminal prosecutions, the accused shall enjoy the right to a . . .
public trial . . . .” U.S. Const. amend. VI.; N.D. Const. art. 1, § 12 (“In criminal
1
prosecutions . . . the party accused shall have the right to a . . . public trial.”).
When considering a claimed violation of the right to public trial,
we first consider whether the claim of error was preserved at trial.
We then consider the threshold question of whether there was a
closure implicating the public trial right. If we determine there
was a closure, we determine whether the trial court made pre-
closure Waller findings sufficient to justify the closure.
State v. Pendleton, 2022 ND 149, ¶ 4, 978 N.W.2d 641 (cleaned up). “Whether
the facts rise to the level of a constitutional violation is reviewed de novo on
appeal.” State v. Walbert, 2021 ND 49, ¶ 6, 956 N.W.2d 384. “[T]he Sixth
Amendment public trial right attaches from the beginning of adversarial
proceedings through sentencing.” State v. Martinez, 2021 ND 42, ¶ 19, 956
N.W.2d 772. When a court orders a closure during trial that is inconsistent
with Waller, the remedy is a new trial. State v. Morales, 2019 ND 206, ¶ 21,
932 N.W.2d 106.
[¶5] The Sixth Amendment guarantees a criminal defendant the right to a
public trial so the public may see the defendant “is fairly dealt with and not
unjustly condemned,” and a public trial encourages witnesses to testify,
discourages perjury, and ensures the judge and prosecutor responsibly fulfill
their duties. Waller v. Georgia, 467 U.S. 39, 46 (1984). The right lends
“credibility to criminal trials by allowing the public to see that an accused is
dealt with fairly.” United States v. Norris, 780 F.2d 1207, 1210 (5th Cir. 1986).
This right also protects the rights of the public and press to access an open
courtroom. Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017). A trial that
is “fundamentally fair” to the defendant might still violate the public trial right
if it violates the rights of the public and the press. Id.
III
A
[¶6] If an error is not preserved, then it is either a forfeited error or a waived
error. State v. Pulkrabek, 2022 ND 128, ¶ 7, 975 N.W.2d 572. Waiver is the
voluntary relinquishment of a right, and forfeiture is the failure to timely
2
assert a right. Id. This Court reviews forfeited errors only for obvious error.
Morales, 2019 ND 206, ¶ 14. An obvious error is present if the defendant
demonstrates “(1) an error, (2) that was plain, and (3) affected his substantial
rights.” Id. at ¶ 24.
[¶7] The structural error doctrine applies to certain Sixth Amendment rights,
including the right to a public trial. Pulkrabek, 2022 ND 128, ¶ 7. When a claim
of structural error is reviewed under the obvious error standard, the defendant
need not demonstrate that the error affected the defendant’s substantial rights
or the trial’s outcome because structural errors “defy analysis by ‘harmless-
error’ standards.” Pulkrabek, at ¶ 7 (citations omitted); Martinez, 2021 ND 42,
¶¶ 4, 12; Morales, 2019 ND 206, ¶ 26.
[¶8] Davis-Heinze did not object either before or after the court instructed
counsel to step outside the courtroom to discuss how to respond to the jury
question. The record reveals no waiver of the public trial right under the
standard described in Martinez. This is a forfeited error, and thus we review
only for obvious error.
B
[¶9] We next consider whether this conference between the trial judge and
the attorneys constituted a closure of the trial. We have emphasized that
courtroom closures should be rare and that district courts may not close trials
merely for convenience or because both parties prefer to close a trial from the
public. Martinez, 2021 ND 42, ¶ 2. “Matters traditionally addressed during
private bench conferences or conferences in chambers generally are not
closures implicating the Sixth Amendment.” Id. at ¶ 20 (citing State v. Smith,
876 N.W.2d 310, 329 (Minn. 2016)). This Court has held that these “brief
sidebars or bench conferences conducted during trial to address routine
evidentiary or administrative issues” do not violate the public trial right when
the court conducts them outside the hearing of the jury if the public and jury
are able to view the bench conference and the court promptly makes available
a record of what the parties discussed. Id. (citing Morales, 2019 ND 206, ¶ 17);
Smith, 876 N.W.2d at 330 (citing Minneapolis Star & Tribune Co. v Kammeyer,
3
341 N.W.2d 550, 560 (Minn. 1983)). Without a transcript, we may be unable to
determine whether a non-public conference related only to matters
traditionally held at sidebar or in chambers and thus whether or not there was
a closure.
[¶10] In the event that a portion of a public trial is held off record, a judge may
in some circumstances avoid a violation of the public trial right. Pendleton,
2022 ND 149, ¶ 10. The judge must summarize on the record what was
discussed at the conference, the conference must have occurred in open court,
and both parties must “have a chance to object to the accuracy of the summary
or supplement the record as to the off-the-record events.” Id. Although we have
“disapproved of” such off-the-record discussions, these circumstances may not
violate the public trial right if this Court is able to review a record of what
occurred. Id.
[¶11] In this case, the record shows that a discussion about how to respond to
a jury question was held outside of the courtroom and out of sight of the public
and jury. The jury had submitted a note asking to hear an audio recording
again. The note is preserved in the record and includes a second question: “was
there a statement from Wendy on the night of the incident?” The transcript
provides the following about the events argued to be a closure:
UNIDENTIFIED JUROR: We had a question if I can ask?
THE COURT: We really need to have you write them down.
UNIDENTIFIED JUROR: It’s on that sheet as well.
THE COURT: Oh, I only saw about listening. Do you have that
question?
THE BAILIFF: She’s got it. Brandi’s [the Deputy Clerk of Court]
got it, Judge.
THE COURT: All right. Counsel approach. We’ll step outside and
I’ll tell you what I’m thinking.
(Off the record.)
THE COURT: Back on the record. If I’m correct, the question that
we’re being asked is, Was there a statement from Wendy on the
night of the incident? The answer is, as a matter of law, is that both
parties have rested their evidence. The evidence that is in front of
you that has been submitted during the trial is the evidence upon
4
which you must decide this case. So that question cannot be
answered any further than that.
Thank you. You may return to your jury room to continue your
deliberations.
[¶12] It is apparent from the circumstances that rather than excuse the jury
so that the court could discuss the response with counsel outside their
presence, the court determined it would be more expeditious to step outside
the courtroom with counsel. There is no transcript of what was discussed. But
the court indicated before going off the record what the scope of the discussion
would be: to advise counsel what the court’s intended response was before it
was given to the jury. After the trial judge and the attorneys returned to the
courtroom, the court restated and answered the question and then excused the
jury to continue deliberations. We have a record of the question asked by the
jury, an advance summary of what the sidebar discussion would address, and
then a prompt on-the-record statement of what the court and attorneys had
concluded.
[¶13] It would have been preferable to have had this discussion in the
courtroom and in public view outside the hearing of the jury. North Dakota
courtrooms have both practical and technological ways to have brief
conversations between the judge and the attorneys outside the hearing of the
jury while maintaining a stenographic or digital audio recording of the
proceedings. But consistent with Pendleton, 2022 ND 149, ¶ 10, we conclude
this brief discussion between the trial judge and counsel was not a trial closure.
We affirm.
IV
[¶14] Davis-Heinze also argues the evidence in support of her conviction was
not sufficient. This Court has explained the standard of review for insufficiency
of evidence:
Appellate review of the sufficiency of the evidence for a jury verdict
is very limited. When the sufficiency of evidence to support a
criminal conviction is challenged, this Court merely reviews the
record to determine if there is competent evidence allowing the
5
jury to draw an inference reasonably tending to prove guilt and
fairly warranting a conviction. The defendant bears the burden of
showing the evidence reveals no reasonable inference of guilt when
viewed in the light most favorable to the verdict. When considering
insufficiency of the evidence, we will not reweigh conflicting
evidence or judge the credibility of witnesses.... A jury may find a
defendant guilty even though evidence exists which, if believed,
could lead to a verdict of not guilty.
State v. Dahl, 2009 ND 204, ¶ 6, 776 N.W.2d 37.
V
[¶15] Section 12.1-17-03, N.D.C.C, Reckless Endangerment, provides:
A person is guilty of an offense if he creates a substantial
risk of serious bodily injury or death to another. The offense is a
class C felony if the circumstances manifest his extreme
indifference to the value of human life. Otherwise it is a class A
misdemeanor. There is risk within the meaning of this section if
the potential for harm exists, whether or not a particular person’s
safety is actually jeopardized.
A person commits reckless endangerment when his “conduct manifests an
extreme indifference to human life and there is no evidence of an intent to kill.”
Dominguez v. State, 2013 ND 249, ¶ 19, 840 N.W.2d 596. The “defendant need
not actually endanger anyone to be guilty of reckless endangerment.” Dahl,
2009 ND 204, ¶ 32 (citing State v. Meier, 422 N.W.2d 381, 384 (N.D. 1988)).
The law presumes “that recklessness and danger existed if the defendant
pointed a gun at or in the direction of a person, whether or not the defendant
believed the gun to be loaded.” Id.
[¶16] In Meier, the defendant was convicted of reckless endangerment for
pointing a rifle at officers, but argued that he could not have recklessly
endangered the officers because his rifle was unloaded. Meier, 422 N.W.2d at
383. This Court upheld the conviction under N.D.C.C. § 12.1-17-03, which
states that reckless endangerment has occurred when “the potential for harm
exists, whether or not a particular person’s safety is actually jeopardized.” Id.
6
at 384. “The potential for harm exists any time a gun is pointed at another
because experience has too often shown that a gun may be loaded, regardless
of what the actor may believe.” Id. This Court also based its determination on
the presumption that a defendant commits reckless endangerment when he
points a firearm at another. Id.
[¶17] Meier guides our decision here. Martin Heinze testified that Davis-
Heinze repeatedly pointed a firearm at him. An officer testified that the gun
was functional and that the barrel was not actually bent, but only appeared
bent. The officer also testified that Heinze’s description of the gun that Davis-
Heinze pointed at him matched the gun the officer recovered from Davis-
Heinze’s house. A potential for harm exists when an individual points a firearm
at another person. There was conflicting testimony regarding the functionality
of the firearm, but it is not this Court’s place to reweigh the evidence. Just as
a firearm believed to be unloaded may still pose a danger as a result of a
mistaken belief it is unloaded, a firearm believed to be inoperable may pose a
similar potential for harm. The jury also had additional evidence including
photographs of the crime scene, Heinze’s 911 calls, and body/dash cam
recordings from the responding officers as well as Davis-Heinze’s firearm. We
conclude there was sufficient competent evidence allowing the jury to draw an
inference reasonably tending to prove guilt and fairly warranting a conviction.
VI
[¶18] The criminal judgment is affirmed.
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
7 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482966/ | FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 10, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 188
Ryan Walter Kratz, Petitioner and Appellant
v.
State of North Dakota, Respondent and Appellee
No. 20220087
Appeal from the District Court of Stutsman County, Southeast Judicial
District, the Honorable Mark T. Blumer, Judge.
AFFIRMED.
Opinion of the Court by Jensen, Chief Justice, in which Justices VandeWalle,
McEvers, and Tufte joined. Justice Crothers filed an opinion concurring
specially.
Kiara C. Kraus-Parr, Grand Forks, ND, for petitioner and appellant.
Frederick R. Fremgen, State’s Attorney, Jamestown, ND, for respondent and
appellee.
Kratz v. State
No. 20220087
Jensen, Chief Justice.
[¶1] Ryan Kratz appeals from a judgment after the district court denied his
motion seeking to correct an illegal sentence and dismissed his application for
post-conviction relief. The court held Kratz had failed to sufficiently support
his application and found it would not be equitable for the application to be
heard pursuant to the fugitive disentitlement doctrine. We affirm the dismissal
of the application for post-conviction relief.
I
[¶2] In 2018 Kratz pled guilty to terrorizing, a class C felony, and was
sentenced to one year and one day of incarceration. The sentence required him
to serve 20 days of the incarceration with the balance suspended for 18 months
during which time Kratz was ordered to participate in supervised probation.
[¶3] In 2019 the State petitioned to revoke Kratz’s probation. In November
2020 Kratz admitted to some of the petition’s allegations, the district court
revoked his probation, and Kratz was resentenced. The new sentence imposed
18 months of incarceration and Kratz was given credit for 23 days of prior
incarceration. Following his resentencing, Kratz failed to report to the
correctional center to serve the period of incarceration. The court issued a
warrant for his arrest, which remains active.
[¶4] Kratz appealed the revocation of his probation. See State v. Kratz, Dist.
Ct. No. 47-2018-CR-00454 (S. Ct. No. 20200334). The State moved to dismiss
the appeal asserting it would not be equitable for Kratz to proceed while still
a fugitive, citing to the fugitive disentitlement doctrine. Before this Court ruled
on the State’s motion to dismiss, Kratz voluntarily dismissed his appeal.
[¶5] In March 2021 Kratz filed an application for post-conviction relief
asserting two claims. First, Kratz claimed he had received ineffective
assistance of counsel during his probation revocation hearing when, after the
district court imposed an illegal sentence following the revocation of his
1
probation, his attorney failed to preserve the issue of the illegal sentence.
Second, he claimed his guilty plea was not voluntary because he was not told,
upon revocation of his probation, he could receive a sentence greater than the
suspended sentence under this Court’s pre-Dubois interpretation of N.D.C.C.
§ 12.1-32-07(6). See Dubois v. State, 2021 ND 153, 963 N.W.2d 543.
[¶6] In April 2021 the State moved to dismiss the post-conviction relief
proceedings based on misuse of process and on the fugitive disentitlement
doctrine. The State also moved for summary dismissal of Kratz’s application.
In late April 2021 Kratz filed responses opposing the State’s motions to dismiss
and for summary dismissal and also requested the district court to abstain
from holding an evidentiary hearing until after this Court’s then-pending
decision in the Dubois case.
[¶7] Subsequent to Kratz’s probation revocation and resentencing and after
he had filed his post-conviction relief application, this Court issued its decision
in Dubois, 2021 ND 153. Our decision in Dubois held that N.D.C.C. § 12.1-32-
07(6) unambiguously restrained a district court’s authority in probation
revocation cases to the imposition of the sentence initially imposed but
suspended. We note the legislature has amended N.D.C.C. § 12.1-32-07(6) to
remove that restraint. See 2021 N.D. Sess. Laws ch. 111, § 1 (effective August
1, 2021).
[¶8] In September 2021 Kratz moved for “summary judgment” in his post-
conviction relief case arguing the district court, in resentencing him after
revoking his probation, had imposed an illegal sentence under this Court’s
decision in Dubois, 2021 ND 153. The State opposed his motion while conceding
the resentencing following the revocation of Kratz’s probation imposed an
illegal sentence. In November 2021 the district court held a hearing on his
motion. Kratz was absent from the hearing and unavailable to give sworn
support for his allegations.
[¶9] The district court resolved the pending motions by denying Kratz’s
motion for summary judgment, determining Kratz had failed to adequately
support his claims, and subsequently dismissing Kratz’s application due to
2
fugitive disentitlement. In applying the fugitive disentitlement doctrine, the
court found Kratz remains a fugitive from justice and it was not equitable to
allow Kratz to proceed with his application for post-conviction relief while he
continued to be a fugitive.
II
[¶10] Kratz argues the district court erred in dismissing his application for
post-conviction relief by finding he had failed to provide sufficient support in
his pleadings to prevail on his claims. He also argues the court erred in denying
his motion for summary judgment seeking to correct the illegal sentence. Kratz
argues his sentence following the revocation of probation is illegal under our
decision in Dubois, the State concedes the sentence is illegal, and the district
court was compelled to correct the illegal sentence.
A
[¶11] Kratz asserted the following two specific grounds for relief in his
application for post-conviction relief:
a. Mr. Kratz did not receive effective assistance of counsel
when his attorney, Scott Sandness, did not preserve the issue
of an illegal sentence during his probation revocation
hearing.
b. Mr. Kratz’s plea of guilty was not made voluntarily because
he did not understand the consequences of the plea. Mr.
Kratz was not represented by counsel and was not informed
by the Court that he could be resentenced to up to five years
if he plead [sic] guilty upon a finding that he violated his
probation.
Although permissible under N.D.C.C. § 29-32.1-01(1)(a) and (d), Kratz’s
application did not assert the sentence imposed following the revocation was
imposed in violation of the law or not authorized by law. The first assertion is
that his counsel was ineffective during the revocation proceedings and the
second assertion is that his plea of guilty was not made voluntarily. Kratz did
not move to amend his post-conviction relief application to directly attack his
3
sentence following the revocation of his probation, and he has not filed a
request for relief to correct the illegal sentence in State v. Kratz, No. 47-2018-
CR-00454, the underlying criminal case. In September 2021 he moved for
“summary judgment” on the application, asserting what is a new claim for
relief, not previously pled within his application, based on this Court’s decision
in Dubois, 2021 ND 153.
[¶12] Our review of a claim of ineffective assistance of counsel is well
established: “To prevail on a claim for ineffective assistance of counsel, the
applicant must show: (1) counsel’s representation fell below an objective
standard of reasonableness, and (2) there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Thomas v. State, 2021 ND 173, ¶ 7, 964 N.W.2d 739 (citing
Strickland v. Washington, 466 U.S. 668 (1984)). “The question of ineffective
assistance of counsel is a mixed question of law and fact and is fully reviewable
on appeal.” Thomas, at ¶ 7.
[¶13] At the time Kratz pled guilty and at the time of his revocation hearing,
this Court had not yet issued its opinion in Dubois holding that N.D.C.C. §
12.1-32-07(6) unambiguously restrained a district court’s authority in
probation revocation cases to the imposition of the sentence initially imposed
but suspended. To the contrary, before our decision in Dubois, this Court had
“long held that the current provisions of N.D.C.C. § 12.1-32-07(6) allow a
district court to impose any sentence available at the initial time of
sentencing.” State v. Dubois, 2019 ND 284, ¶ 9, 936 N.W.2d 380.
[¶14] Kratz’s first claim for post-conviction relief is an assertion his revocation
counsel should have prospectively anticipated this Court’s decision in Dubois
by asserting the sentence imposed after his probation was revoked was illegal.
However, this Court has previously recognized “[c]ounsel’s failure to raise a
novel or groundbreaking legal claim does not constitute ineffective assistance
of counsel.” Dubois, 2021 ND 153, ¶ 8 (citing Yoney v. State, 2021 ND 132, ¶
12, 962 N.W.2d 617 (counsel’s submission of jury instruction that was
consistent with precedent was not ineffective assistance)); accord Ragland v.
United States, 756 F.3d 597, 601 (8th Cir. 2014) (counsel’s failure to raise a
4
“novel argument” did not render his performance constitutionally ineffective);
Brown v. United States, 311 F.3d 875, 878 (8th Cir. 2002) (counsel’s decision to
not raise issue unsupported by precedent did not constitute ineffective
assistance). Therefore, the district court did not err in finding Kratz failed to
sufficiently support his claim for ineffective assistance of counsel when that
claim was premised on his counsel’s failure to argue an interpretation of
N.D.C.C. § 12.1-32-07(6) not yet recognized by this Court and contrary to its
prior precedent.
[¶15] Kratz’s second claim for post-conviction relief was a request to withdraw
his guilty plea asserting he was not made aware at the time of his guilty plea
that he could be resentenced to a period of incarceration greater than the
suspended sentence. Like his first claim, Kratz did not seek relief from an
illegal sentence under N.D.C.C. § 29-32.1-01(1)(a) and (d) in the post-conviction
relief application. In its order denying Kratz summary disposition, the district
court held Kratz had provided no support for his claim of an involuntary guilty
plea as the basis for a withdrawal of his guilty plea. The court also noted that
his application for post-conviction relief had not been verified by Kratz or
anyone else. The court explained:
The court has been unable to find and neither party has pointed to
an affidavit that was supplied in support of Kratz’s allegations in
his application for post[-]conviction relief. Kratz did not appear in
person or by reliable electronic means at the hearing on the motion
for summary judgment and was therefore not able to clarify or
provide any sworn support for his application.
[¶16] Almost three months later, in its subsequent order granting the State’s
motion to dismiss due to fugitive disentitlement, the district court again found
Kratz had failed in the intervening time to provide any evidentiary support for
his application’s claims and failed to file any supporting affidavit and that his
absence hampered the court’s ability to fairly adjudicate his claims. Moreover,
we note that two days before the order dismissing on fugitive disentitlement,
Kratz filed an “unsworn declaration,” which, despite the court’s prior order
denying summary disposition, fails to provide any factual support for his
5
application’s claims and “contingent[ly]” waives the two claims if the illegal
sentence is resolved.
III
[¶17] Because Kratz failed to provide any evidentiary support for his
application, we cannot conclude the district court abused its discretion in
dismissing the two specific claims raised in the application. See Ude v. State,
2009 ND 71, ¶ 15, 764 N.W.2d 419 (“because Ude did not submit any testimony,
affidavits, or supporting evidence of ineffective assistance of counsel, the
district court did not err in denying Ude’s application for post-conviction
relief.”). We affirm the dismissal of Kratz’s petition for post-conviction relief.
Having concluded Kratz failed to provide sufficient evidentiary support for the
application, it is unnecessary to determine whether or not the district court
properly applied the fugitive disentitlement doctrine.
[¶18] Kratz failed to adequately support his assertions that his probation
revocation counsel was ineffective and that his plea was not voluntarily made.
The judgment dismissing his application for post-conviction relief is affirmed.
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Lisa Fair McEvers
Jerod E. Tufte
Crothers, Justice, specially concurring.
[¶20] I fully agree with the majority opinion. Application of the fugitive
disentitlement doctrine or the fugitive dismissal rule also could be dispositive
in this appeal.
[¶21] The district court used the rule to dismiss the underlying postconviction
relief proceeding. Majority opinion, ¶ 9. Both Kratz and the majority only
mention the rule in passing. The entirety of Kratz’s argument was:
The court dismissed the petition for post-conviction relief
under the fugitive dismissal rule, rather than simply fix the illegal
6
sentence[.] There is no precedent to dismiss the case under that
doctrine in a post-conviction case in this State or justification to do
so when the issue is one of correcting an illegal sentence. To
dismiss this case without fixing the illegal sentence was an abuse
of the court’s discretion, which requires this Court’s reversal and
remand to correct.
The majority concludes, “it is unnecessary to determine whether or not the
district court properly applied the fugitive disentitlement doctrine.” Majority
opinion, ¶ 17. See id. at ¶¶ 1 and 9.
[¶22] This Court only decides issues that are “thoroughly briefed and argued,”
and “a party waives an issue by not providing adequate supporting argument.”
Weeks v. N.D. Workforce Safety & Ins. Fund, 2011 ND 188, ¶ 9, 803 N.W.2d 601
(quoting Olson v. Workforce Safety & Ins., 2008 ND 59, ¶ 26, 747 N.W.2d 71).
Here, Kratz did not argue on appeal that the district court erred by dismissing
his postconviction relief claims based on the fugitive disentitlement doctrine.
While I have reservations about whether the fugitive disentitlement doctrine
is available for use in the district court, that issue has not been presented to
us for decision. Therefore, because Kratz did not brief or argue that the district
court erred in denying him relief under the fugitive disentitlement doctrine,
this case could be affirmed on that basis alone.
[¶23] Daniel J. Crothers
7 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482960/ | FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 10, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 199
State of North Dakota, Plaintiff and Appellee
v.
Zhiwar Ismail, Defendant and Appellant
Nos. 20220092 & 20220093
Appeal from the District Court of Cass County, East Central Judicial District,
the Honorable Wade L. Webb, Judge.
AFFIRMED.
Opinion of the Court by Crothers, Justice.
Derek K. Steiner (argued) and Tanner Langley (on brief), third year law
student, under the Rule of Limited Practice of Law by Law Student, Assistant
State’s Attorney, Fargo, ND, for plaintiff and appellee.
Elizabeth B. Brainard, Fargo, ND, for defendant and appellant.
State v. Ismail
Nos. 20220092 & 20220093
Crothers, Justice.
[¶1] Zhiwar Ismail appeals from two criminal judgments after the district
court found him guilty of possession of a controlled substance and delivery of a
controlled substance. We affirm.
I
[¶2] On March 9, 2021, police were dispatched to assist with an unconscious
female. The female admitted to snorting a M30 Fentanyl pill in the early hours
of March 9, 2021. She stated she bought the pill from an Arabic male in his
20s. On March 24, 2021, the female identified Zhiwar Ismail during a photo
lineup as the individual who sold her the pill. On April 6, 2021, Detective Bret
Witte executed a search warrant on Ismail’s apartment and seized two
Gabapentin pills and one Clonazepam pill. Ismail was charged with possession
and delivery of a controlled substance. A consolidated bench trial was held on
February 22, 2022, and Ismail was found guilty of both charges.
II
[¶3] Ismail claims ineffective assistance of counsel based on his attorney’s
failure to make a motion of acquittal under N.D.R.Crim.P. 29, waiving an
opening statement and failing to make certain objections. Ineffective
assistance of counsel claims generally should be brought in postconviction
relief proceedings instead of on direct appeal. DeCoteau v. State, 1998 ND 199,
¶ 7, 586 N.W.2d 156. This allows the parties to fully develop a record on the
issue of counsel’s performance and its impact on the defendant’s case. Id. We
decline to address Ismail’s ineffective assistance claims on direct appeal so he
can bring them in a postconviction relief proceeding.
III
[¶4] Ismail argues the district court improperly questioned witnesses. During
trial Ismail did not object to the judge’s questioning of witnesses. When an
issue raised on appeal is not objected to at trial, this Court reviews the claim
1
under the obvious error standard. State v. Pemberton, 2019 ND 157, ¶ 15, 930
N.W.2d 125. “To constitute obvious error, the error must be a clear deviation
from an applicable legal rule under current law.” Id. at ¶ 8.
[¶5] A district court has authority under N.D.R.Ev. 614(b), to examine a
witness. A district court’s questioning of a witness conforming with legal
authority is, by definition, not a clear deviation from the applicable legal rule.
Therefore, the judge’s mere act of questioning witnesses is not obvious error.
[¶6] Our cases apply N.D.R.Ev. 614, explaining trial judges are encouraged
to clarify testimony and ferret out elusive facts. State v. Foard, 355 N.W.2d
822, 823 (N.D. 1984). While presiding over a bench trial, a judge “has active
duties to perform without partiality in seeing the truth is developed.” Id. “It is
a judge’s duty in the exercise of sound discretion to elicit relevant and material
evidence and this duty cannot be discharged by remaining inert.” Id. We
cautioned however that trial judges must remain impartial. Id. at 824. “[A]
judge’s conduct will be unduly prejudicial to a defendant, and consequently an
abuse of discretion, when a judge abandons a properly judicious role and
assumes that of advocate.” Id.
[¶7] This Court may consider several factors in evaluating whether the
judge’s questioning comported with N.D.R.Ev. 614, including:
“[W]hether the witnesses’ testimony needed clarification, whether
the witnesses were unusually hesitant and in need of assurance,
whether the court used leading questions, whether the court
interfered with cross-examination, whether the court’s
interruptions favored one side exclusively, . . . whether the parties
were being adequately represented, and whether an objection to
the questioning was made.”
State v. Yodsnukis, 281 N.W.2d 255, 261 (N.D. 1979).
[¶8] Here, the district court questioned three out of four witnesses. Most of
the questions were for clarification and did not favor either party, although
some answers generated by the judge’s questions arguably were more favorable
to the State than to Ismail. But Ismail does not allege the court’s examination
2
of witnesses prevented him from presenting his case or from asking those
witnesses additional questions. Nor does the record reflect the court interfered
with cross-examination, interfered with one side more than the other, or that
Ismail objected to the court’s questioning of witnesses, as permitted under
N.D.R.Ev. 614(c) (allowing a party to object to a court’s examination of a
witness). Therefore, after reviewing the entire record, we conclude the district
court did not obviously err by examining witnesses.
IV
[¶9] Ismail argues the weight and sufficiency of the evidence was insufficient
for a conviction.
[¶10] Weight and sufficiency of the evidence are distinct concepts. State v.
Yineman, 2002 ND 145, ¶ 8, 651 N.W.2d 648. There, we explained:
“In State v. Himmerick, 499 N.W.2d 568, 572 (N.D. 1993), we
announced a departure from a well-established rule of law, which
required any defendant to make a motion of acquittal under
N.D.R.Crim.P. 29 to preserve an issue of sufficiency of the evidence
for appellate review. We held the procedural requirement of
making a motion for acquittal under N.D.R.Crim.P. 29 was
unnecessary in bench trials, where a judge rather than a jury acts
as factfinder. Id. Nonetheless, we expressly declared in Himmerick
this new rule did not apply in civil cases, criminal jury cases, or
‘challenges based on the weight of the evidence’ as opposed to
challenges based on the sufficiency of the evidence. Id.”
Yineman, ¶ 7.
A
[¶11] A court asked to consider whether the conviction rests upon insufficient
evidence must view the evidence in a light most favorable to the verdict.
Yineman, 2002 ND 145, ¶ 8; City of Wahpeton v. Wilkie, 477 N.W.2d 215, 217
(N.D. 1991) (“This case was heard by the court, not by a jury. However, the
standard of review remains the same. On review we look to the evidence which
is the most favorable to the verdict to determine if such evidence is sufficient
to sustain that verdict.”) (Internal citations omitted.) The conviction rests on
3
insufficient evidence if no rational factfinder could have found the defendant
guilty beyond a reasonable doubt. Yineman, ¶ 8.
[¶12] The defendant need not make a motion of acquittal under N.D.R.Crim.P.
29 to preserve a sufficiency of evidence claim in a bench trial. Yineman, 2002
ND 145, ¶ 7. The evidence here included testimony from the female who stated
she knew Ismail through mutual friends, purchased pills from him before, and
identified him as the individual who sold her the M30 Fentanyl pill on March 9,
2021. The district court also received testimony from police officers who stated
controlled substances were found in Ismail’s apartment where he lived alone,
and the female identified Ismail in a photo lineup as the individual who sold
her the pill. Viewing this evidence in the light most favorable to the verdict, a
rational factfinder could have found the defendant guilty beyond a reasonable
doubt. Therefore, sufficient evidence existed to convict Ismail of possession and
distribution of controlled substances.
B
[¶13] A court asked to consider whether the weight of evidence was sufficient
to support a conviction must evaluate the credibility of the evidence. Yineman,
2002 ND 145, ¶ 9. To preserve the issue of weight of the evidence for appellate
review, a defendant must make a motion of acquittal under N.D.R.Crim.P. 29.
Absent a Rule 29 motion, this Court reviews the issue under the obvious error
standard. Pemberton, 2019 ND 157, ¶ 15.
[¶14] An obvious error exists when the district court clearly deviates from the
applicable law. Pemberton, 2019 ND 157, ¶ 8. Here, Ismail did not move for
acquittal under N.D.R.Crim.P. 29 based on weight of the evidence. Therefore,
we must determine whether the district court obviously erred by finding the
evidence at trial was credible.
[¶15] The evidence here included testimony from the female victim who stated
she bought the pill from Ismail. The evidence also included testimony about
the controlled substances found in Ismail’s apartment from the police officer
who searched those premises. Nothing on the face of this record prevented the
district court from finding that the witnesses were credible or that the evidence
4
was reliable. Therefore, the court did not obviously err in convicting Ismail
based on evidence produced at trial. See Kruger v. Goossen, 2021 ND 88, ¶ 6,
959 N.W.2d 847 (“In a bench trial, the district court is the determiner of
credibility issues and we will not second-guess the district court on its
credibility determinations.”).
V
[¶16] The criminal judgments are affirmed.
[¶17] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
5 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482967/ | FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 10, 2022
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2022 ND 187
David Knapp, Plaintiff and Appellant
v.
The Jones Financial Companies, L.L.L.P.
a Missouri Limited Liability Limited Partnership;
Edward D. Jones & Co., L.P., a Missouri Limited
Partnership a wholly owned subsidiary of The Jones
Financial Companies, L.L.L.P.; Edward Jones Trust Co.
a purported wholly owned subsidiary of The Jones
Financial Companies, L.L.L.P.; and a self-directed
individual retirement account described as Edward
Jones Trust Co. as Custodian FBO David N. Knapp
Account Number XXX-XX-18-1-6, Defendants and Appellees
No. 20220140
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Jay D. Knudson, Judge.
APPEAL DISMISSED.
Opinion of the Court by McEvers, Justice.
DeWayne A. Johnston, Grand Forks, ND for plaintiff and appellant.
Monte L. Rogneby, Bismarck, ND for defendants and appellees.
Knapp v. The Jones Financial Co., et al.
No. 20220140
McEvers, Justice.
[¶1] Attorney DeWayne Johnston, on behalf of the late David Knapp, appeals
from a dismissal judgment entered after the district court denied a motion to
substitute Knapp’s widow as plaintiff under N.D.R.Civ.P. 25. The Appellees
(together “Edward Jones”) moved to dismiss the appeal. We grant Edward
Jones’ motion and dismiss the appeal.
I
[¶2] This litigation began after the Minnesota Department of Revenue issued
a third-party levy on securities held by Edward Jones for Knapp. Knapp sued
the Commissioner of the Minnesota Department of Revenue and Edward Jones
in North Dakota seeking dissolution of the levy. In Knapp v. Commissioner of
Minnesota Department of Revenue, 2018 ND 231, 918 N.W.2d 387, we affirmed
the district court’s judgment dismissing the case for lack of personal
jurisdiction over the Commissioner.
[¶3] Knapp subsequently commenced this lawsuit against Edward Jones
requesting dissolution of the levy or a declaration that his securities are
exempt from the levy. He also brought a conversion claim and requested
damages. The district court ordered the case stayed pending arbitration under
terms in Edward Jones account agreements. Knapp died during the stay.
Edward Jones served Knapp’s counsel, Attorney Johnston, with a statement
noting Knapp’s death. Attorney Johnston filed a motion on Knapp’s behalf
requesting Knapp’s widow, Cabrini Knapp, be substituted as plaintiff under
N.D.R.Civ.P. 25. The court held a hearing. There is no transcript of the hearing
in the record. After the hearing, the court denied the substitution motion and
dismissed the case with prejudice. The court noted that ownership of the
securities had transferred to Cabrini Knapp and her “rights are not
extinguished by this order and there is no prejudice to her in denying the
motion to substitute her as a party.”
1
[¶4] Attorney Johnston filed a notice of appeal on David Knapp’s behalf. The
notice of appeal contains a footnote stating Cabrini Knapp filed the motion to
substitute. This is not supported by the record. The motion itself states “the
Plaintiff, by and through his attorney, DeWayne Johnston [ ] moves the court
for an Order substituting Cabrini Knap [sic] as the Successor Plaintiff.”
Attorney Johnston has not filed an appearance on behalf of Cabrini Knapp. At
oral argument, Attorney Johnston informed the Court he does not represent
Cabrini Knapp.
II
[¶5] Edward Jones moved to dismiss the appeal arguing Attorney Johnston
cannot appeal on behalf of a deceased person. Attorney Johnston responded
with a motion to substitute Knapp’s widow as the appellant under
N.D.R.App.P. 43.
If a party entitled to appeal dies before filing a notice of
appeal, the decedent’s personal representative, or, if there is no
personal representative, the decedent’s attorney of record, may file
a notice of appeal within the time prescribed by these rules.
N.D.R.App.P. 43(a)(3). Rule 43 is intended to provide a mechanism for
substitution of a party who dies after proceedings in the district court have
concluded. Hoffner v. Johnson, 2003 ND 79, ¶ 4 n.1, 660 N.W.2d 909. Under
the plain language of the rule, an attorney may file a notice of appeal on behalf
of a decedent if he or she was “entitled to appeal” before dying. If a party dies
during proceedings in the district court—i.e., before the party is entitled to
appeal—N.D.R.Civ.P. 25 applies. Ring v. N.D. Dep’t of Human Servs., 2020 ND
217, ¶ 7, 950 N.W.2d 142. Rule 25 contains various requirements for
substitution of a party. For example, Rule 25(a)(4), N.D.R.Civ.P., requires the
motion to substitute a party and notice of the motion be served on parties and
nonparties. The record does not show Cabrini Knapp, the nonparty purported
to be substituted, was served. It appears not all the requirements were met in
this case. See Giles v. Campbell, 698 F.3d 153, 158 (3d Cir. 2012) (service of
notice of death on decedent’s attorney is insufficient to acquire personal
jurisdiction over potential substitute); see also Atkins v. City of Chicago, 547
2
F.3d 869, 872 (7th Cir. 2008) (a motion for substitution filed by decedent’s
attorney is a nullity because the attorney is neither a party nor a successor or
personal representative of the estate); Fariss v. Lynchburg Foundry, 769 F.2d
958, 962 (4th Cir. 1985) (same; collecting cases).1
[¶6] David Knapp died while this case was pending in the district court. The
dismissal judgment was entered after David Knapp’s death. He was never
“entitled to appeal” under N.D.R.App.P. 43(a)(3). Attorney Johnston is
therefore not authorized to file this appeal on David Knapp’s behalf. We note
Cabrini Knapp has not filed a motion in this case. Nor does the record show
she has been served with any filings. Although the district court’s dismissal
order states Attorney Johnston appeared on behalf of Cabrini Knapp at the
motion hearing, he informed us at oral argument that the court’s statement is
inaccurate and he does not represent Cabrini Knapp. It is not apparent from
the record that either we or the district court have jurisdiction to order Cabrini
Knapp to serve as substitute. See Franciere v. City of Mandan, 2020 ND 143,
¶¶ 9-10, 945 N.W.2d 251 (valid service of process is necessary to effectuate
personal jurisdiction; absent jurisdiction no one is bound by anything a court
may say). We hold Attorney Johnston was not authorized to file this appeal,
and therefore his motion to substitute on appeal is moot.
III
[¶7] We grant Edward Jones’ motion. The appeal is dismissed.
[¶8] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
David Nelson, S.J.
1The explanatory note to N.D.R.Civ.P. 25 states our rule is derived from Fed. R. Civ. P. 25. Federal
courts’ interpretation of a corresponding procedural rule are “highly persuasive in construing our rule.”
Kalmio v. State, 2018 ND 182, ¶ 11, 915 N.W.2d 655 (quoting Thompson v. Peterson, 546 N.W.2d 856,
860 (N.D. 1996)).
3
[¶9] The Honorable David Nelson, S.J., sitting in place of VandeWalle, J.,
disqualified.
4 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482668/ | People v Centeno (2022 NY Slip Op 06275)
People v Centeno
2022 NY Slip Op 06275
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
JOSEPH J. MALTESE
PAUL WOOTEN
LILLIAN WAN, JJ.
2020-07495
[*1]The People of the State of New York, respondent,
vSteven M. Centeno, appellant. Laurette D. Mulry, Riverhead, NY (Lisa Marcoccia of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Alfred Croce of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the County Court, Suffolk County (Richard Ambro, J.), dated May 13, 2020, which, after a hearing, designated him a level two sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
The defendant was convicted, upon his plea of guilty, of promoting prostitution in the third degree and sexual misconduct. The defendant committed the subject offenses when he was 21 years old. Between January 16 and 18, 2018, the defendant transported two victims, aged 16 and 17, to have sex with two men for financial gain. The defendant also engaged in oral sex with the 16-year-old victim. In 2020, the County Court conducted a hearing pursuant to the Sex Offender Registration Act (Correction Law article 6-C), and designated the defendant a level two sex offender based upon an assessment of 85 points on the risk assessment instrument, declining to depart from the presumptive risk assessment level. The defendant appeals.
"A defendant seeking a downward departure from the presumptive risk level has the initial burden of '(1) identifying, as a matter of law, an appropriate mitigating factor, namely, a factor which tends to establish a lower likelihood of reoffense or danger to the community and is of a kind, or to a degree, that is otherwise not adequately taken into account by the . . . Guidelines, and (2) establishing the facts in support of its existence by a preponderance of the evidence'" (People v Brocato, 188 AD3d 728, 728, quoting People v Wyatt, 89 AD3d 112, 128; see People v Gillotti, 23 NY3d 841, 861; see also Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 4 [2006] [hereinafter Guidelines]). "If the defendant makes that twofold showing, the court must exercise its discretion by weighing the mitigating factor to determine whether the totality of the circumstances warrants a departure to avoid an overassessment of the defendant's dangerousness and risk of sexual recidivism" (People v Brocato, 188 AD3d at 728-729; see People v Gillotti, 23 NY3d at 861).
"'In cases of statutory rape, the Board has long recognized that strict application of the Guidelines may in some instances result in overassessment of the offender's risk to public safety'" (People v Brocato, 188 AD3d at 729, quoting People v Fisher, 177 AD3d 615, 616). The Guidelines provide that "a court may choose to depart downward in an appropriate case and in those [*2]instances where (i) the victim's lack of consent is due only to inability to consent by virtue of age and (ii) scoring 25 points in this category results in an over-assessment of the offender's risk to public safety" (Guidelines at 9).
Here, the defendant identified, and proved the existence of, an appropriate mitigating factor for a downward departure from his presumptive risk level, namely, that "the victim's lack of consent [to sexual contact was] due only to [an] inability to consent by virtue of age" (Guidelines at 9; see People v Collins, 188 AD3d 1107, 1108). Nevertheless, the County Court providently exercised its discretion in determining that a downward departure was not warranted in light of, among other things, the defendant's subsequent intimidation of the victim into engaging in prostitution (see People v Collins, 188 AD3d at 1108; cf. People v Brocato, 188 AD3d at 728; People v Walker, 146 AD3d 824, 826).
Furthermore, while a defendant's response to a sex offender treatment program may qualify as a ground for a downward departure where the defendant's response to treatment is exceptional (see People v McClendon, 175 AD3d 1329, 1131; People v Wallace, 144 AD3d 775, 776), the defendant here failed to submit any evidence of his purported achievements while incarcerated (cf. People v Diaz, 180 AD3d 817, 818).
Accordingly, the County Court providently exercised its discretion in designating the defendant a level two sex offender.
DUFFY, J.P., MALTESE, WOOTEN and WAN, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482656/ | People v Saldivar (2022 NY Slip Op 06269)
People v Saldivar
2022 NY Slip Op 06269
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
ANGELA G. IANNACCI
WILLIAM G. FORD
HELEN VOUTSINAS, JJ.
2019-06991
(Ind. No. 1106/18)
[*1]The People of the State of New York, respondent,
vMiguel Saldivar, appellant. Salvatore C. Adamo, New York, NY, for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Marion Tang of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Mark D. Cohen, J.), rendered May 14, 2019, convicting him of course of sexual conduct against a child in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, and endangering the welfare of a child, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
The record demonstrates that the defendant knowingly, voluntarily, and intelligently waived his right to appeal (see People v Thomas, 34 NY3d 545; People v Sanders, 25 NY3d 337, 339-342; People v Lopez, 6 NY3d 248, 256-257). The defendant's valid waiver of his right to appeal precludes appellate review of his contention that the sentence imposed was excessive (see People v Campbell, 192 AD3d 822, 823).
The defendant's contention that he was denied the effective assistance of counsel regarding his decision to waive his right to appeal is without merit (see People v Parson, 27 NY3d 1107, 1108; People v Flinn, 188 AD3d 1093, 1094; see generally People v Benevento, 91 NY2d 708,
714; People v Baldi, 54 NY2d 137, 147).
CONNOLLY, J.P., IANNACCI, FORD and VOUTSINAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482667/ | People v Drach (2022 NY Slip Op 06260)
People v Drach
2022 NY Slip Op 06260
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
VALERIE BRATHWAITE NELSON
CHERYL E. CHAMBERS
LILLIAN WAN, JJ.
2017-02549
(Ind. No. 4645/15)
[*1]The People of the State of New York, respondent,
vRobert Drach, appellant.
Patricia Pazner, New York, NY (Anders Nelson of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Gamaliel Marrero of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Guy J. Mangano, Jr., J.), rendered January 20, 2017, convicting him of attempted kidnaping in the second degree, endangering the welfare of a child, public lewdness, and criminal trespass in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant allegedly approached the nine-year-old complainant as she was playing alone inside the gated front yard of her home and proceeded to grab her, show her his penis, and push and pull her toward the front gate and out onto the sidewalk. The complainant's father, hearing the complainant's screams, came out of the house and restrained the defendant until the police arrived. At trial, the People elicited testimony from the complainant and her father and introduced a surveillance video, as well as statements made by the defendant to the police wherein he, among other things, admitted that his penis was out of his pants, that he grabbed the complainant, and that he wanted to have sex with her.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620), we find that it was legally sufficient to establish the defendant's guilt of the crime of attempted kidnaping in the second degree beyond a reasonable doubt (see Penal Law §§ 110.00, 135.20; § 135.00 [2][a]; People v Mutterperl, 97 AD3d 699, 699; People v Antonio, 58 AD3d 515; People v Cruz, 296 AD2d 22; People v Cassano, 254 AD2d 92). Moreover, in fulfilling
our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 NY3d 342, 348-349), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 NY3d 383, 410; People v Bleakley, 69 NY2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633).
The defendant's postverdict motion pursuant to CPL 330.30 was insufficient to preserve for appellate review his claim that the merger doctrine required vacatur of his conviction of attempted kidnaping in the second degree (see CPL 470.05[2]; People v Hanley, 20 NY3d 601; People v Padro, 75 NY2d 820; People v Mejia, 169 AD3d 715; People v Richard, 30 AD3d 750), and we decline to exercise our interest of justice jurisdiction to reach the issue (see People v Cardona, 202 AD2d 602, 603).
The Supreme Court properly declined to give an intoxication charge to the jury (see Penal Law § 15.25). Viewing the evidence in the light most favorable to the defendant (see People v Gaines, 83 NY2d 925, 926-927; People v Farnsworth, 65 NY2d 734, 735), there was insufficient evidence to support an inference that the defendant was so intoxicated as to have been unable to form the requisite criminal intent (see People v Sirico, 17 NY3d 744, 746; People v Rodriguez, 76 NY2d 918, 921; People v Arcila, 177 AD3d 585, 586). The defendant's contention that the court applied an incorrect legal standard to determine whether an intoxication charge was warranted is without merit (see People v Rodriguez, 76 NY2d at 920; People v Perry, 61 NY2d 849, 850-851).
Furthermore, the defendant was not deprived of his right to present a defense (see People v Young, 295 AD2d 631, 632). The Supreme Court providently exercised its discretion in precluding the admission of the defendant's medical records made 31 hours after his arrest on the ground that they were not relevant to the issue of whether the defendant was intoxicated at the time of the charged crimes and would have invited the jury to engage in speculation (see People v Scarola, 71 NY2d 769, 777; People v Westergard, 113 AD2d 640). Additionally, the court providently exercised its discretion in limiting re-cross-examination of a police witness (see People v Maddery, 282 AD2d 761, 761; People v Gonzalez, 131 AD2d 873, 874).
Contrary to the defendant's contention, the Supreme Court's Sandoval ruling (see People v Sandoval, 34 NY2d 371) was a provident exercise of discretion, as it constituted an appropriate compromise which properly balanced the probative value of the proffered evidence against any potential prejudice to the defendant (see People v Smith, 18 NY3d 588, 593-594; People v Hayes, 97 NY2d 203, 207-208; People v Prise, 151 AD2d 787, 788).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
The defendant's remaining contention is without merit.
BARROS, J.P., BRATHWAITE NELSON, CHAMBERS and WAN, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482662/ | People v McCaa (2022 NY Slip Op 06263)
People v McCaa
2022 NY Slip Op 06263
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
REINALDO E. RIVERA
JOSEPH A. ZAYAS
JANICE A. TAYLOR, JJ.
2019-11767
(Ind. No. 1275/19)
[*1]The People of the State of New York, respondent,
vMario McCaa, appellant.
Patricia Pazner, New York, NY (Lynn W. L. Fahey of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Jodi L. Mandel of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Sharen D. Hudson, J.), rendered September 16, 2019, convicting him of criminal possession of a firearm, upon his plea of guilty, and imposing sentence. Assigned counsel has submitted a brief in accordance with Anders v California (386 US 738), in which she moves for leave to withdraw as counsel for the appellant.
ORDERED that the judgment is affirmed.
We are satisfied with the sufficiency of the brief filed by the defendant's assigned counsel pursuant to Anders v California (386 US 738), and, upon an independent review of the record, we conclude that there are no nonfrivolous issues which could be raised on appeal. Counsel's application for leave to withdraw as counsel is, therefore, granted (see id.; Matter of Giovanni S. [Jasmin A.], 89 AD3d 252; People v Paige, 54 AD2d 631; cf. People v Gonzalez, 47 NY2d 606).
IANNACCI, J.P., RIVERA, ZAYAS and TAYLOR, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482666/ | People v Lamontagne (2022 NY Slip Op 06261)
People v Lamontagne
2022 NY Slip Op 06261
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
REINALDO E. RIVERA
JOSEPH J. MALTESE
LARA J. GENOVESI, JJ.
2019-12650
(Ind. No. 4979/18)
[*1]The People of the State of New York, respondent,
vJeson Lamontagne, appellant.
Patricia Pazner, New York, NY (Michael Arthus of counsel), for appellant.
Eric Gonzalez, District Attorney, Brooklyn, NY (Leonard Joblove and Denise Pavlides of counsel; Kenneth Cooper on the brief), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Matthew D'Emic, J., at plea; Laura Johnson, J., at sentence), rendered October 4, 2019, convicting him of attempted assault in the second degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review an order of protection issued at the time of sentencing.
ORDERED that upon the appeal from the judgment, so much of the order of protection as directed that it remain in effect until and including October 3, 2028, is vacated, as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for a new determination of the duration of the order of protection consistent herewith; and it is further,
ORDERED that the judgment is affirmed.
The duration of the order of protection, which was issued upon the defendant's conviction of attempted assault in the second degree, is an issue properly before this Court on the appeal from the judgment (see People v Nieves, 2 NY3d 310, 315). However, the defendant's contention regarding the duration of the order of protection issued at sentencing is unpreserved for appellate review, since the defendant did not raise the contention at sentencing or move to amend the order of protection (see People v Nieves, 2 NY3d at 316-317; People v Sutki S., 185 AD3d 610, 612; People v Rodriguez, 157 AD3d 971). Nonetheless, we reach that contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[6][a]; People v Sutki S., 185 AD3d at 612; People v Ramos, 164 AD3d 922, 923; People v Ortiz, 25 AD3d 811, 812).
As the People concede, the duration of the order of protection exceeded the maximum time limit set forth in CPL 530.12(5)(A). Accordingly, we vacate so much of the order of protection as directed that it remain in effect until and including October 3, 2028, and remit the matter to the Supreme Court, Kings County, for a new determination of the duration of the order of protection in accordance with CPL 530.12(5)(A) (see People v Palaguachi, 35 AD3d 767, 767-768; People v Ortiz, 25 AD3d at 812).
BRATHWAITE NELSON, J.P., RIVERA, MALTESE and GENOVESI, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487629/ | [For this case, see 1 Del.Ch. 230.] | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487630/ | *50The following answer was given by the Chancellor, November 26, 1822.
On comparing the Statute of Distribution, 22 & 23 Car. II, c, 10, with our Act of Assembly for the better settling intestates’ estates, [1 Del.Laws 284,] I find a material difference in those parts which relate to the distribution to collaterals. The English statute gives the portion of the surplus which is not given to the wife, if there be no children nor any legal representatives of them, equally to every of the next of kindred who are in equal degree, and those who legally represent them, without noticing brothers or sisters, or their representatives. Therefore when a man had three brothers, one of whom died leaving three children, another died leaving two, and the third died leaving five, after which he himself died intestate, it was resolved that distribution should be per capita and not per stirpes; and that all the children should have equal [shares,] because none of them take by way of representation, but all as next of kindred in equal degree.
But our Act of Assembly, if there be no children nor any legal representatives of them, distributes the residue, after the wife’s share, equally to and among the brothers and sisters of the deceased or their legal representatives, and does not give the residue to the next of kindred, except in case there be no brothers or sisters or legal representatives of them. While there are representatives of brothers and sisters they must take by representation, and not as next of kindred; for so the Act is. The words, “or legal representatives of them,” apply to representatives of brothers and sisters who have died in the lifetime of the intestate, and not to brothers and sisters who died after the intestate. If one or more of the brothers or sisters had died after the intestate in the case stated, the share of such deceased brother or sister would have been a vested interest, transmissible to his or her executors or administrators, and his or her children could *51not have taken by way of representation from Richard Baning, the intestate, nor per capita. They would have taken as heirs of such surviving brother in the distribution of his estate. Unless the children of the brothers and sisters take per stirpes, the words in the Act, “or their legal representatives,” will have no effect. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487632/ | The Chancellor.
In considering this question we must be governed by the rules established in courts of equity, for in courts of law a co-plaintiff cannot be examined as a witness. Neither can a plaintiff examine a defendant as a witness, but a defendant in some cases may examine a co-defendant; as in actions of tort, no material evidence being given against one, the other defendant may examine him, 2 Ves.Sr. 222. And in a court of chancery, a co-plaintiff and a co-defendant may, under particular circumstances, be examined, provided such plaintiff or defendant has no interest.
In this Court we must adopt, by analogy, the rules of the Court of Chancery, as far as they are applicable; for as to cases which belong to this court, it is a court of equity, and the rules of evidence should be alike, although the mode of obtaining testimony may differ.
Here William Warren, a co-appellant has assigned to Joseph Harper, one of the other appellants, his share or interest in a certain bond alleged to have been made to the intestate, John Warner, by Benjamin Gibbs, in relation to which this examination of him is desired. The exceptions filed to these accounts are in the names of Joseph Harper and Elizabeth, his wife, and the said William Warren. Elizabeth, the said wife of Harper, and the said William Warren are the heirs at law of John Warren, deceased, so that they had a common interest in all the matters in controversy, until this assignment was made; and that assignment is made of William Warren’s part of the supposed bond made by Benjamin Gibbs only, leaving his claim or demand of the other matters contained in these accounts unimpaired.
*66This assignment and this motion were made after the parties had gone to hearing, and after the parties had examined several witnesses, two at least, Caleb Barrett and Samuel Warren, as to this supposed bond of Benjamin Gibbs, upon the very point on which it is desired that he, William Warren, a co-appellant, should be examined as a witness. He, William Warren, cannot be sworn as a witness.
First, it is too late at this stage of the cause. If a co-defendant examines witnesses, without collusion between him and the plaintiff, he is considered as interested, and cannot be examined. 1 Ves.Jr. 122,123,124. If the answer of defendant be replied to, he is considered as interested and cannot be examined. 2 Madd. Ch. 316. The mode would be, before the hearing, to strike the co-appellant’s name out of the appeal. This is the practice in Chancery, but I should doubt it on an appeal; for all the heirs are concerned in the accounts, and it would be expensive and inconvenient to take two appeals on the same account. But on this I give no decided opinion, though I see an inconvenience, but in this stage of the case, with the circumstances of examination of other witnesses, it should not be permitted.
Second, all such examinations of parties are made on a release being given to the opposite side. It is certain that William Warren is considerably interested in the case.
But my strong objection is to his examination in this stage of the cause, after he has proceeded to a hearing, and has, with the co-appellants, examined witnesses about this supposed bond. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8488878/ | MEMORANDUM DECISION
FREDERICK A. JOHNSON, Bankruptcy Judge.
The issue in this proceeding is whether or not the Plaintiff, John Deere Company, has a perfected security interest in a snowmobile. The relevant facts are not in dispute.
The facts giving rise to this controversy appear below in chronological order:
The 108th Maine Legislature at its first regular session (January 5, 1977 to July 25, 1977) enacted P.L. 1977, ch. 526, which amended several sections of Maine’s version of the Uniform Commercial Code. Chapter 526 repealed 11 M.R.S.A. 9-401. Section 9-401 provided that the proper place to file in order to perfect a security interest in consumer goods was “in the office of the clerk of the municipality [of the debtor’s residence] . . .
The repealed section was replaced by § 9-401-A, which provided, as pertinent here:
(1) The proper place to file in order to perfect a security interest is as follows:
b. In all other cases, in the office of the Secretary of State. .
Chapter 526 provided that its effective date would be January 1, 1978.
On December 19, 1977 the debtors purchased the snowmobile in question from a dealer in Auburn, Me. In connection with the transaction they executed a security agreement and financing statement.
On December 21,1977 the dealer assigned its rights to the Plaintiff.
On January 1, 1978 UCC § 9-401-A became effective.
On January 24, 1978 the financing statement which was executed on December 19, *4811977, was filed with the office of the Secretary of State.
The 108th Legislature, at its second regular session (January 4,1978 to April 6,1978) enacted P.L. 1977 chapter 586, effective January 31, 1978, retroactive to January 1, 1978. Chapter 586 contained an emergency preamble:
Whereas, the absence of any transition provisions in public law, 1977, chapter 526 creates great uncertainty as to the applicable law in many secured transactions and great difficulty in determining the relative rights and obligations of debtors and secured parties; .
Chapter 586 enacted 11 M.R.S.A. Article 10, which was designed to correct the “great uncertainty” referred to in emergency preamble.
On October 12, 1978 the debtors’ Chapter XIII petition was filed.
The standing Chapter XIII Trustee questions the perfection of the Plaintiff’s security interest on the ground that the proper place to file in order to perfect a security interest, which attached on December 19, 1977, was with the clerk of the municipality of the debtor’s residence at the time the security interest attached and not with the Secretary of State.
The Plaintiff, of course, argues that when the financing statement was filed on January 24, 1978 the “new Code” so-called, was in effect and the new Code required filing with the Secretary of State.
- DISCUSSION -
We have carefully reviewed Article 10. Although the Legislature, unfortunately, did not provide for the fact situation present here, it is apparent from that Article and from 9-401-A that the clear legislative intent was to provide for centralized filing and to further provide that filing with the Secretary of State subsequent to January 1, 1978 would perfect a security interest which attached prior to that date.
Maine’s system of “notice filing” is designed to do no more than apprise creditors that a secured party may have a security interest in the collateral described in the financing statement.
The case law makes it abundantly clear that a financing statement is intended merely to ‘put a searcher on notice that an underlying security agreement may be outstanding. . . . ’ In re Cushman Bakery, 526 F.2d 23 (1st Cir. 1975).
Under the “new Code”, which wisely provides for centralized filing for perfection of security interests, an interested party’s first inquiry would logically be with the office of the Secretary of State. Such inquiry would reveal the Plaintiff’s security interest in the Debtors’ snowmobile.
An appropriate order will be entered today. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482664/ | People v Marrow (2022 NY Slip Op 06276)
People v Marrow
2022 NY Slip Op 06276
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
ROBERT J. MILLER
LARA J. GENOVESI
HELEN VOUTSINAS, JJ.
2021-06063
[*1]The People of the State of New York, respondent,
vAubrey Marrow, appellant. Clare J. Degnan, White Plains, NY (Debra A. Cassidy of counsel), for appellant.
Miriam E. Rocah, District Attorney, White Plains, NY (William C. Milaccio and Christine DiSalvo of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from an order of the Supreme Court, Westchester County (Susan M. Cacace, J.), dated July 14, 2021, which, after a hearing, designated him a level three sex offender pursuant to Correction Law article 6-C.
ORDERED that the order is affirmed, without costs or disbursements.
In establishing an offender's appropriate risk level under the Sex Offender Registration Act (Correction Law art 6-C), the People "bear the burden of proving the facts supporting the determinations sought by clear and convincing evidence" (Correction Law § 168-n[3]). "In assessing points, evidence may be derived from the defendant's admissions, the victim's statements, evaluative reports completed by the supervising probation officer, parole officer, or corrections counselor, case summaries prepared by the Board of Examiners of Sex Offenders . . ., or any other reliable source, including reliable hearsay" (People v Crandall, 90 AD3d 628, 629; see People v Mingo, 12 NY3d 563, 573; People v Brown, 194 AD3d 861, 862).
Contrary to the defendant's contention, the Supreme Court properly assessed 10 points under risk factor 1. By submission of, among other things, the child victim's statements, as memorialized in the child victim's forensic interview with the Children's Advocacy Center (see Social Services Law § 423-a) and the police report, the People established by clear and convincing evidence that the defendant used forcible compulsion against the child victim (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 8 [2006]; Penal Law § 130.00[8]; People v Coleman, 42 NY2d 500, 505).
BARROS, J.P., MILLER, GENOVESI and VOUTSINAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482676/ | PHH Mtge. Corp. v Shouela (2022 NY Slip Op 06278)
PHH Mtge. Corp. v Shouela
2022 NY Slip Op 06278
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
ANGELA G. IANNACCI, J.P.
PAUL WOOTEN
DEBORAH A. DOWLING
LILLIAN WAN, JJ.
2020-00716
(Index No. 30301/10)
[*1]PHH Mortgage Corporation, etc., respondent,
vIsaac Shouela, appellant, et al., defendants.
Petroff Amshen LLP, Brooklyn, NY (James Tierney, Serge F. Petroff, and Steven Amshen of counsel), for appellant.
Duane Morris LLP, New York, NY (Brett L. Messinger of counsel), for respondent.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Isaac Shouela appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (Noach Dear, J.), dated January 30, 2019. The order and judgment of foreclosure and sale, upon an order of the same court (Peter P. Sweeney, J.) dated October 29, 2018, inter alia, denying that branch of that defendant's cross motion which was for leave to renew his opposition to those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against him and for an order of reference, which had been granted in orders of the same court (Peter P. Sweeney, J.) dated October 28, 2016, and November 27, 2017, granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property.
ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.
The plaintiff commenced this action to foreclose a mortgage on property located in Brooklyn against, among others, the defendant Isaac Shouela (hereinafter the defendant). The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The Supreme Court, among other things, granted those branches of the plaintiff's motion in orders dated October 28, 2016, and November 27, 2017.
Subsequently, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. The defendant cross-moved, inter alia, for leave to renew his opposition to those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him and for an order of reference. In an order dated October 29, 2018, the Supreme Court, among other things, denied that branch of the defendant's cross motion. In an order and judgment of foreclosure and sale dated January 30, 2019, the court granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the subject property. The defendant appeals.
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change [*2]in the law that would change the prior determination" (CPLR 2221[e][2]).
Contrary to the defendant's contention, he did not show that there had been a change in the law (see Cenlar, FSB v Weisz, 136 AD3d 855, 856; Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 793; Nocella v Fort Dearborn Life Ins. Co. of N.Y., 99 AD3d 877), so as to warrant renewal of his opposition to those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him and for an order of reference (see American Home Mtge. Servicing, Inc. v Carnegie, 181 AD3d 632, 633). Accordingly, the Supreme Court properly denied that branch of the defendant's cross motion which was for leave to renew.
The defendant's remaining contention is not properly before this Court, as it is improperly raised for the first time on appeal.
IANNACCI, J.P., WOOTEN, DOWLING and WAN, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482675/ | Parthesius v Town of Huntington (2022 NY Slip Op 06254)
Parthesius v Town of Huntington
2022 NY Slip Op 06254
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
JOSEPH J. MALTESE
PAUL WOOTEN
LILLIAN WAN, JJ.
2020-06911
(Index No. 604186/19)
[*1]Damon Parthesius, respondent,
vTown of Huntington, appellant.
Gerber Ciano Kelly Brady LLP, Garden City, NY (Brendan T. Fitzpatrick and Brian W. McElhenny of counsel), for appellant.
Gruenberg Kelly Della, Ronkonkoma, NY (Zachary M. Beriloff of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (George Nolan, J.), dated July 20, 2020, as amended July 28, 2020. The order dated July 20, 2020, as amended July 28, 2020, denied the defendant's motion for summary judgment dismissing the complaint. The notice of appeal from an order dated July 28, 2020, is deemed to be a notice of appeal from the order dated July 20, 2020, as amended July 28, 2020 (see CPLR 5512[a]).
ORDERED that the order dated July 20, 2020, as amended July 28, 2020, is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is granted.
On the evening of October 9, 2018, the plaintiff allegedly tripped and fell on an uneven sidewalk condition which was located within a municipal parking lot. There was a patch of asphalt in the concrete sidewalk, and it was not flush with the abutting slab of concrete. The plaintiff also alleged that a lamppost near the accident site was not functioning and that the area was not properly illuminated. The plaintiff commenced this action against the defendant, the Town of Huntington, to recover damages for personal injuries that he allegedly sustained as a result of his fall. The defendant moved for summary judgment dismissing the complaint, contending, inter alia, that it did not have prior written notice of the uneven sidewalk condition and that it had no duty to illuminate the area where the accident occurred. The Supreme Court denied the motion in an order dated July 20, 2020, as amended July 28, 2020. The defendant appeals.
"Prior written notice of a defective condition is a condition precedent to maintaining an action against a municipality where, as here, there is a local law requiring such notice" (Schiller v Town of Ramapo, 202 AD3d 1022, 1022; see Code of the Town of Huntington § 174-3; Coventry v Town of Huntington, 165 AD3d 750, 751-752). Here, in support of its motion, the defendant submitted, among other things, affidavits of its employees who searched the relevant records covering a five-year period prior to the date of the accident, and found that neither the Town Clerk nor the Town Superintendent of Highways had received prior written notice of any dangerous or defective condition at the accident site. The defendant thus established, prima facie, that it did not [*2]have prior written notice of the alleged uneven sidewalk condition (see Schiller v Town of Ramapo, 202 AD3d at 1023; Defilippo v City of Glen Cove, 178 AD3d 1019, 1020; Coventry v Town of Huntington, 165 AD3d at 752; Walker v County of Nassau, 147 AD3d 806, 807). The defendant also established, prima facie, that it had no duty to illuminate the area where the accident occurred (see Thompson v City of New York, 78 NY2d 682, 685; Greenberg v McLaughlin, 242 AD2d 603, 603-604; Abbott v County of Nassau, 223 AD2d 662, 662; Bauer v Town of Hempstead, 143 AD2d 793, 794).
The Court of Appeals "has recognized only two exceptions to the statutory rule requiring prior written notice, namely, where the locality created the defect or hazard through an affirmative act of negligence and where a 'special use' confers a special benefit upon the locality" (Amabile v City of Buffalo, 93 NY2d 471, 474 [citation omitted]; see Yarborough v City of New York, 10 NY3d 726, 728; Puzhayeva v City of New York, 151 AD3d 988, 990). Only the affirmative negligence exception is implicated in this case, and it "'is limited to work [done] by [a municipality] that immediately results in the existence of a dangerous condition'" (Yarborough v City of New York, 10 NY3d at 728, quoting Oboler v City of New York, 8 NY3d 888, 889; see San Marco v Village/Town of Mount Kisco, 16 NY3d 111, 117-118; Fiero v City of New York, 190 AD3d 822, 824; Puzhayeva v City of New York, 151 AD3d at 990). The defendant was not required to eliminate all triable issues of fact with respect to the affirmative negligence exception to the prior written notice rule in order to satisfy its prima facie burden (see Smith v City of New York, ___ AD3d ___, 2022 NY Slip Op 05226 [2d Dept]). Nevertheless, the defendant did eliminate all triable issues of fact with respect to that exception. In particular, the defendant submitted an affidavit of its employee, John Carroll, who averred that the asphalt patch would have been "rolled smooth and level to remove any existing tripping hazard between the two existing concrete slabs," but now, "the tar was eroded from the patch" and "[p]ortions of the asphalt patch . . . appear to be missing." Based on Carroll's "observation of the asphalt repair as it exist[ed] in 2019," he believed that the repair was "[more than] 10 years old" and that its separation from the concrete slabs "would be caused by natural erosion, wear and tear over time, and/or in this case tree roots causing the concrete slabs to uplift, not by the method of its installation."
In opposition, the plaintiff failed to raise a triable issue of fact (see Torres v Incorporated Vil. of Rockville Ctr., 195 AD3d 974, 975-976). Contrary to the plaintiff's contention, the deposition testimony of Sean Cavanagh, another employee of the defendant, which was also submitted in support of the defendant's motion, did not establish that the dangerous condition arose immediately after the asphalt repair. Cavanagh's testimony instead confirmed that the asphalt had worn away over the course of at least seven to eight years, and that the allegedly dangerous condition thus had "developed over time with environmental wear and tear" (Yarborough v City of New York, 10 NY3d at 728).
Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint.
DUFFY, J.P., MALTESE, WOOTEN and WAN, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482665/ | People v Maggio (2022 NY Slip Op 06262)
People v Maggio
2022 NY Slip Op 06262
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
REINALDO E. RIVERA
JOSEPH A. ZAYAS
LARA J. GENOVESI, JJ.
2021-03145
[*1]The People of the State of New York, appellant,
vChristopher Maggio, respondent. (S.C.I. No. 611/10)
Raymond A. Tierney, District Attorney, Riverhead, NY (Alfred J. Croce and Thomas C. Costello of counsel), for appellant.
Barket Epstein Kearon Aldea & LoTurco, LLP, Garden City, NY (Donna Aldea and Danielle Muscatello of counsel), for respondent.
DECISION & ORDER
Appeal by the People from an order of the Supreme Court, Suffolk County (Timothy P. Mazzei, J.), dated March 22, 2021, which granted, without a hearing, the defendant's motion pursuant to CPL 440.10 to vacate a judgment of the same court (James Hudson, J.) rendered April 6, 2010, convicting him of driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3), upon his plea of guilty, and imposing sentence.
ORDERED that the order is reversed, on the law, the defendant's motion pursuant to CPL 440.10 to vacate the judgment rendered April 6, 2010 is denied, and the judgment is reinstated.
On March 3, 2010, the defendant appeared before the Supreme Court and entered a plea of guilty to driving while intoxicated in violation of Vehicle and Traffic Law § 1192(3). The court informed the defendant that, as a condition of his plea, the court was "obligated to revoke [his] privilege to operate a motor vehicle." The defendant then admitted that, on August 21, 2009, he consumed alcoholic beverages before operating a motor vehicle on a public highway in Suffolk County, and the consumption of those beverages rendered him intoxicated. On April 6, 2010, the defendant was sentenced in accordance with the plea agreement, and the sentence included a one-year revocation of his driver license.
On September 25, 2012, the New York State Department of Motor Vehicles (hereinafter DMV) adopted a regulation governing applications for relicensing following a license revocation made by persons with multiple alcohol-related or drug-related driving convictions. By letter dated November 7, 2012, a representative of the DMV informed the defendant that, pursuant to that regulation, his application to reinstate his driver license following the one-year revocation had been denied since he had "three or four alcohol- or drug-related driving convictions or incidents" (15 NYCRR 136.5[b][2]), in addition to "one or more serious driving offenses" (id.), within the 25 years preceding the date of the instant offense (see id. § 136.5[a][3]). The letter further advised the defendant that he could seek reconsideration of the DMV's determination on the basis of any "unusual, extenuating and compelling circumstances" that may exist in his case (id. § 136.5[d]).
In September 2020, the defendant moved pursuant to CPL 440.10 to vacate the judgment rendered April 6, 2010, on the ground that he was not made aware that entering a plea of guilty could result in the permanent revocation of his driver license and, thus, his right to due process had been violated. In an order dated March 22, 2021, the Supreme Court granted the defendant's motion to vacate the judgment of conviction and dismissed the accusatory instrument in the interest of justice. The People appeal.
CPL 440.10(1)(h) permits a court to vacate a judgment of conviction on the ground that "[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." A plea of guilty will be upheld as valid if it was entered knowingly, voluntarily, and intelligently (see People v Fiumefreddo, 82 NY2d 536, 543; People v Lopez, 71 NY2d 662, 666; People v Harris, 61 NY2d 9, 17).
The Supreme Court erred in granting the defendant's motion to vacate the judgment of conviction on the ground that his plea of guilty was not entered knowingly, voluntarily, and intelligently. The subject regulation that led to the denial of the defendant's application for relicensing did not exist at the time he entered his plea of guilty, and it would have been impossible for the court to inform the defendant of consequences flowing therefrom (see People v DiTore, _____ AD3d _____, 2022 NY Slip Op 05541 [2d Dept]; People v Wheaton, 49 Misc 3d 378, 379 [Seneca County Ct]). "'The defendant's grievance lies with the enactment and enforcement of the new regulation, not the manner of his conviction'" (People v DiTore, _____ AD3d at _____, 2022 NY Slip Op 05541, *2, quoting People v Wheaton, 49 Misc 3d at 379).
In any event, contrary to the defendant's contention, the DMV's denial of his application for relicensing did not deprive him of the benefit of his plea agreement (see e.g. People v Varnum, 291 AD2d 724, 725). In rejecting a multifaceted challenge to the subject regulation, the Court of Appeals observed that the Vehicle and Traffic Law "contemplates that the Commissioner [of the DMV] will have exclusive authority over post-revocation relicensing, and that those relicensing determinations will be discretionary" (Matter of Acevedo v New York State Dept. of Motor Vehs., 29 NY3d 202, 220). Since an offender is not "entitled to relicensing under the Vehicle and Traffic Law upon expiration of the statutory revocation period" (id. at 219), the Supreme Court's imposition of a one-year license revocation in this case carried with it no guarantee that the defendant's driver license would be reinstated at the end of that one-year period. The subsequent adoption of the subject regulation had the effect of "formalizing" the Commissioner's discretion (id. at 220) by providing that relicensing applications by certain repeat offenders "shall" be denied (15 NYCRR 136.5[b][2]) in the absence of any "unusual, extenuating and compelling circumstances" (id. at 136.5[d]). While that may have increased the likelihood that the defendant's relicensing application would be denied, it does not alter our analysis, since the defendant had no enforceable expectation that his driver license would be reinstated in the first place.
Contrary to the defendant's further contention, his unawareness that, as a consequence of his entering a plea of guilty, his driver license might never be reinstated did not prevent his plea from being knowing, voluntary, and intelligent. To the extent that the potentially permanent license revocation authorized under the subject regulation is a consequence of the defendant's instant plea of guilty at all (see People v Avital, 64 Misc 3d 483, 485 [Town of East Fishkill Just Ct, Dutchess County] [denial of relicensing under 15 NYCRR 136.5 results not from any particular conviction, but from the applicant's "complete driving history"]), it is, as the defendant acknowledges, a collateral consequence of his plea (see People v Peque, 22 NY3d 168, 185, citing People v Ford, 86 NY2d 397, 403). The defendant contends, and the Supreme Court concluded in the order appealed from, that the effective lifetime suspension of his license to drive is a consequence that, although collateral, is "'of such great importance to him that he would have made a different decision had that consequence been disclosed'" (People v Peque, 22 NY3d at 192, quoting People v Gravino, 14 NY3d 546, 559). We disagree.
In People v Gravino (14 NY3d at 555-558), where the defendant was not advised at the time of her entering a plea of guilty that she would be required to register as a sex offender under the Sex Offender Registration Act (hereinafter SORA), the Court of Appeals held that SORA [*2]registration was a collateral consequence of the defendant's plea of guilty, not a direct consequence, and therefore her plea was knowing, voluntary, and intelligent despite her unawareness of the registration requirement at the time of her plea. In the companion case of People v Ellsworth, where the defendant entered a plea of guilty to course of sexual conduct against a child in the second degree, the Court held that a condition of the defendant's 10-year period of probation forbidding him from associating with any child under the age of 18, including his own children, was a collateral consequence of the defendant's plea of guilty, not a direct consequence, and his unawareness of that condition did not prevent his plea from being knowing, voluntary, and intelligent (see id. at 551-553, 558-559). The Court of Appeals recognized in Gravino that "[t]here may be cases in which a defendant can show that he [or she] pleaded guilty in ignorance of a consequence that, although collateral for purposes of due process, was of such great importance to him [or her] that he [or she] would have made a different decision had that consequence been disclosed" (id. at 559). The Court concluded, however, that "neither of the cases before us fits this description, and indeed such cases will be rare" (id.).
Subsequently, in People v Harnett (16 NY3d 200), the Court of Appeals addressed a defendant's argument that his plea of guilty was not knowing, voluntary, and intelligent because he was not warned that, as a "'detained sex offender,'" he was potentially subject to the Sex Offender Management and Treatment Act (hereinafter SOMTA), under which, after completing his prison term, he could be "'committed to a secure treatment facility . . . until such time as he . . . no longer require[d] confinement'" (id. at 204, quoting Mental Hygiene Law §§ 10.03[g], 10.07[f]). After concluding that SOMTA confinement, like SORA registration, was a collateral consequence of a conviction, the Court considered whether the possibility of SOMTA confinement was "'of such great importance'" that fundamental fairness nonetheless required that the defendant be warned of that consequence upon entering a plea of guilty (People v Harnett, 16 NY3d at 207, quoting People v Gravino, 14 NY3d at 559). The Court held that, although, under certain circumstances, and where a defendant can show that "the prospect of SOMTA confinement was realistic enough," he or she may be able to demonstrate that a plea of guilty entered without awareness of that consequence was not knowing, voluntary, and intelligent, as a general matter, a warning about SOMTA-related consequences is not required, and the absence of such a warning does not "automatically invalidate [a] guilty plea" (People v Harnett, 16 NY3d at 203, 207).
By contrast, in People v Peque (22 NY3d at 176), the Court of Appeals held that, although deportation from the United States is a collateral consequence of a criminal conviction, "due process compels a trial court to apprise a defendant that, if the defendant is not an American citizen, he or she may be deported as a consequence of a guilty plea to a felony." The Court explained that "deportation is a plea consequence of such tremendous importance, grave impact and frequent occurrence that a defendant is entitled to notice that it may ensue from a plea" (id.). A plurality of the Court distinguished the circumstances of Peque from those of Gravino and Harnett, reasoning that, "[u]nlike SORA registration, SOMTA confinement or other collateral consequences, the deportation process deprives the defendant of an exceptional degree of physical liberty by first detaining and then forcibly removing the defendant from the country" (id. at 192). The Peque plurality considered a warning necessary, even though deportation is "technically on the collateral side of the direct/collateral divide," because deportation "constitutes a uniquely devastating deprivation of liberty" (id. at 192, 193). Thus, a majority of the Court held that "deportation constitutes such a substantial and unique consequence of a plea that it must be mentioned by the trial court to a defendant as a matter of fundamental fairness" (id.).
Thus, the Court of Appeals has clearly indicated that a consequence of a conviction must represent an exceptionally severe liberty deprivation in order to fall within the narrow category of collateral consequences of which a defendant must be advised at the time of entering the plea. Given that SORA registration, a condition of probation separating a defendant from his or her children, and even the prospect of indefinite civil confinement pursuant to SOMTA are not considered sufficiently onerous to require that a defendant be advised of such consequences at the time of his or her plea, we cannot conclude that the permanent loss of a driver license fits into that category. Although the privilege of having a driver license may be of value and importance to many defendants, its loss cannot be considered a devastating deprivation of liberty that can be equated with [*3]deportation, or deemed more severe than SORA registration, denial of contact with one's children, or SOMTA confinement. Thus, even if the subject regulation had existed at the time of the defendant's entering a plea of guilty, the fact that his conviction could contribute to a decision by the DMV to deny reissuance of a driver license at the end of the revocation period does not present the "rare" case in which the defendant's plea cannot be deemed knowing, voluntary and intelligent unless he was advised of that consequence at the time of his plea (id. at 192; see People v Gravino, 14 NY3d at 559).
Accordingly, the Supreme Court should have denied the defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction.
BRATHWAITE NELSON, J.P., RIVERA, ZAYAS and GENOVESI, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482660/ | People v Neischer (2022 NY Slip Op 06265)
People v Neischer
2022 NY Slip Op 06265
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
LINDA CHRISTOPHER
WILLIAM G. FORD
JANICE A. TAYLOR, JJ.
2021-00012
[*1]The People of the State of New York, respondent,
vQuran Neischer, appellant. (S.C.I. No. 90144/19)
Patricia Pazner, New York, NY (Lynn W. L. Fahey of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Mario F. Mattei, J.), rendered August 26, 2019, convicting him of attempted criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
On appeal, the defendant challenges only his designation as a violent felony offender pursuant to Penal Law § 70.02(1)(d) and CPL 220.20(1).
In the instant case, the defendant pleaded guilty to attempted criminal possession of a weapon in the third degree under a superior court information charging the greater offense of criminal possession of a weapon in the third degree. Since attempted criminal possession of a weapon in the third degree was not charged as the only count or the top count, but rather, was a lesser-included offense of the only count in the superior court information, the defendant's conviction of that offense constitutes a conviction of a class E violent felony offense (see Penal Law § 70.02[1][d]; CPL 220.20[1]). Accordingly, the defendant's contention that he should not have been sentenced as a violent felony offender is without merit (see People v Dargan, 101 AD3d 1143, 1144; People v Henry, 52 AD3d 841, 843-844; cf. People v Dickerson, 85 NY2d 870).
DILLON, J.P., CHRISTOPHER, FORD and TAYLOR, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482689/ | Matter of Devine v Dominguez (2022 NY Slip Op 06242)
Matter of Devine v Dominguez
2022 NY Slip Op 06242
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
ROBERT J. MILLER
LINDA CHRISTOPHER
BARRY E. WARHIT, JJ.
2021-07359
(Docket Nos. V-4964-18, V-12470-18)
[*1]In the Matter of Sean Devine, respondent,
vCarina Dominguez, appellant. (Proceeding No. 1.)
In the Matter of Carina Dominguez, appellant,
vSean Devine, respondent. (Proceeding No. 2.)
William Martin, White Plains, NY, for appellant.
Berkman Bottger Newman & Schein LLP, White Plains, NY (Ellen Werfel Martineau of counsel), for respondent.
Kathleen M. Hannon, Scarsdale, NY, attorney for the child.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Westchester County (Rachel Hahn, J.), entered September 20, 2021. The order, insofar as appealed from, after a hearing, granted the father's amended petition for sole legal and physical custody of the parties' child, in effect, denied the mother's petition for sole legal and physical custody of the child, and directed that the mother's parental access be supervised.
ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.
The parties are the parents of a child born in March 2017. In May 2018, the mother left the home and took the child to Arizona without the father's knowledge or consent. The father filed an amended petition seeking sole legal and physical custody of the child. In September 2018, the mother returned to New York pursuant to an order of the Family Court and the father was awarded temporary custody of the child. The mother then filed her own petition seeking sole legal and physical custody of the child. Initially, pursuant to an order, the mother's parental access was unsupervised, with a geographic restriction that such access was to take place in Westchester County. However, the mother's parental access was directed to be supervised after she violated the order of the court by bringing the child to Brooklyn and Manhattan. The child has lived with the father and his extended family in Westchester County since September 2018. The mother continues to live in Arizona and has traveled to New York for supervised parental access during the course of these proceedings. The court conducted a hearing on the parties' custody petitions. Thereafter, in an order entered September 20, 2021, the court granted the father's amended petition for sole legal and physical custody of the child, in effect, denied the mother's petition for sole legal and physical custody of the child, and directed that the mother's parental access be supervised. The mother [*2]appeals. We affirm.
"'The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child'" (Matter of Gooler v Gooler, 107 AD3d 712, 712, quoting Matter of Julie v Wills, 73 AD3d 777, 777; see Eschbach v Eschbach, 56 NY2d 167, 171). In determining an initial petition for child custody, the court must consider, among other things, "(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires" (Matter of Supangkat v Torres, 101 AD3d 889, 890; see Matter of Tinger v Tinger, 108 AD3d 569, 570; Matter of Swinson v Brewington, 84 AD3d 1251, 1253). Since custody determinations depend to a great extent upon the Family Court's assessment of the character and credibility of the parties and witnesses, deference is accorded to that court's credibility findings (see Matter of Frankiv v Kalitka, 105 AD3d 1045, 1046). Custody determinations will not be disturbed unless they lack a sound and substantial basis in the record (see id. at 1046; see also Matter of Gooler v Gooler, 107 AD3d at 712).
Here, the Family Court's determination that the child's best interests would be served by awarding sole legal and physical custody to the father has a sound and substantial basis in the record and will not be disturbed (see Matter of Bowe v Bowe, 124 AD3d 645, 646-647; Matter of Gribeluk v Gribeluk, 120 AD3d 579, 580).
Contrary to the mother's contentions, the Family Court did not fail to give proper consideration to alleged incidents of domestic violence (see Matter of Saunders v Stull, 133 AD3d 1383, 1383; cf. Matter of Wissink v Wissink, 301 AD2d 36, 39).
A determination with respect to parental access, including whether it should be supervised, is within the sound discretion of the Family Court, and its determination will not be set aside unless it lacks a sound and substantial basis in the record (see Matter of Lopez v Lopez, 127 AD3d 974, 974-975; Matter of Costigan v Renner, 123 AD3d 825, 825-826; Matter of Morgan v Sheevers, 259 AD2d 619, 620). Supervised parental access is appropriately required only where it is established that unsupervised parental access would be detrimental to the child (see Matter of Gainza v Gainza, 24 AD3d 551, 551; see also Rosenberg v Rosenberg, 44 AD3d 1022, 1024; Purcell v Purcell, 5 AD3d 752, 753). Contrary to the mother's contention, there was a sound and substantial basis in the record for the Family Court's directive that her parental access with the child be supervised (see Matter of Lane v Lane, 68 AD3d 995, 997).
DILLON, J.P., MILLER, CHRISTOPHER and WARHIT, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482687/ | Matter of Lang v County of Nassau (2022 NY Slip Op 06245)
Matter of Lang v County of Nassau
2022 NY Slip Op 06245
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
LINDA CHRISTOPHER
DEBORAH A. DOWLING
BARRY E. WARHIT, JJ.
2020-07368
(Index No. 602380/20)
[*1]In the Matter of Mindy Lang, etc., respondent,
vCounty of Nassau, appellant.
Thomas A. Adams, County Attorney, Mineola, NY (Robert Van der Waag and Samantha Goetz of counsel), for appellant.
Parker Waichman, LLP, Port Washington, NY (Jay L. T. Breakstone of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the County of Nassau appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered August 12, 2020. The order granted the petition.
ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, the petition is denied, and the proceeding is dismissed.
On September 2, 2019, the petitioner allegedly was injured when she tripped and fell on a cracked and uneven roadway condition. On February 21, 2020, the petitioner commenced this proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim or to deem a late notice of claim timely served upon the County of Nassau nunc pro tunc. In an order entered August 12, 2020, the Supreme Court granted the petition. The County appeals.
"General Municipal Law § 50-e(5) permits a court, in its discretion, to extend the time for a petitioner to serve a notice of claim" (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 460-461). In determining whether to grant leave to serve a late notice of claim, the court must consider all relevant circumstances, including whether (1) the claimant demonstrated a reasonable excuse for the failure to timely serve the notice, (2) the municipal entity acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay in seeking leave would substantially prejudice the municipal entity in its ability to defend against the action (see General Municipal Law § 50-e[5]; Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 463-464; Matter of Perez v City of New York, 175 AD3d 1534, 1535; Matter of Bermudez v City of New York, 167 AD3d 733, 734).
"[A] court's decision to grant or deny a motion to serve a late notice of claim is 'purely a discretionary one'" (Matter of Newcomb v Middle County Cent. Sch. Dist., 28 NY3d at 465, quoting Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256, 265). Although the "lower courts have broad discretion to evaluate the factors," a "lower court's determinations must be supported by record evidence" (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at [*2]465).
Contrary to the Supreme Court's determination, the evidence submitted in support of the petition failed to establish that the County acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter. "In order to have actual knowledge of the essential facts constituting the claim, the public corporation must have knowledge of the facts that underlie the legal theory or theories on which liability is predicated in the notice of claim; the public corporation need not have specific notice of the theory or theories themselves" (Matter of Felice v Easport/South Manor Cent. School Dist., 50 AD3d 138, 148). Contrary to the petitioner's contention, the fact that members of the Nassau County Police Department and a County ambulance responded to the scene and tended to her injuries, without more, cannot be considered actual knowledge of the essential facts constituting the claim against the County (see Matter of Wieman-Gibson v County of Suffolk, 206 AD3d 666; Etienne v City of New York, 189 AD3d 1400, 1401-1402; Matter of Brown v City of New York, 174 AD3d 800, 801-802). The petitioner failed to present any evidence to demonstrate that the County had knowledge of the circumstances of the accident from which it could "readily infer" that a "potentially actionable wrong had been committed" by it (Matter of Fethallah v New York City Police Dept., 150 AD3d 998, 1000 [internal quotation marks omitted]; see Matter of Johnson v County of Suffolk, 167 AD3d 742, 745). Moreover, the late notice of claim, served upon the County without leave of court 50 days after the 90-day statutory period had expired, was served too late to provide the County with actual knowledge of the essential facts constituting the claim within a reasonable time after the 90-day statutory period expired (see Matter of Galicia v City of New York, 175 AD3d 681, 683; Matter of Naar v City of New York, 161 AD3d 1081, 1083; Matter of Ronness v City of New York, 151 AD3d 976, 977; Matter of Bhargava v City of New York, 130 AD3d 819, 820-821).
The petitioner also failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim. The petitioner's conclusory assertion that her injuries prevented her from making timely service, without any supporting medical documentation or evidence, was insufficient to constitute a reasonable excuse (see Etienne v City of New York, 189 AD3d at 1402; Matter of Bermudez v City of New York, 167 AD3d at 734; Matter of Cuccia v Metropolitan Transp. Auth., 150 AD3d 849, 850; Matter of Thill v North Shore Cent. Sch. Dist., 128 AD3d 976, 978).
Finally, the petitioner failed to come forward with "some evidence or plausible argument" that the County will not be substantially prejudiced in maintaining a defense on the merits as a result of the delay in commencing this proceeding and the lack of timely, actual knowledge of the essential facts constituting the claim (Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 466). The conclusory assertion of substantial prejudice set forth in the affirmation of the petitioner's attorney was "inadequate to satisfy the [petitioner's] minimal initial burden with respect to this factor" (Matter of D.M. v Center Moriches Union Free Sch. Dist., 151 AD3d 970, 973; see Matter of Maldonado v City of New York, 152 AD3d 522, 523). The petitioner contends, for the first time on appeal, that photographic evidence appended to the late notice of claim demonstrated what the defective roadway condition looked like on the date of her fall. However, the photographs were never authenticated, nor did the petitioner identify the actual dates the photographs were taken. The petitioner therefore failed to establish that the alleged defective condition was substantially as depicted therein or that the condition remained unchanged since the time of the accident (see Matter of Shavreshyan v City of New York, 207 AD3d 470; Matter of Bermudez v City of New York, 167 AD3d at 735; Matter of Bramble v New York City Dept. of Educ., 125 AD3d 856, 859).
Accordingly, the Supreme Court improvidently exercised its discretion in granting the petition.
DUFFY, J.P., CHRISTOPHER, DOWLING and WARHIT, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482696/ | HSBC Bank USA, N.A. v Schneps (2022 NY Slip Op 06234)
HSBC Bank USA, N.A. v Schneps
2022 NY Slip Op 06234
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
REINALDO E. RIVERA
JOSEPH A. ZAYAS
WILLIAM G. FORD, JJ.
2019-13800
2019-13802
(Index No. 3354/16)
[*1]HSBC Bank USA, National Association, etc., respondent,
vBarry Schneps, et al., appellants, et al., defendants.
Barry Schneps, West Hempstead, NY, appellant pro se and for appellant Chaya Schneps.
Stradley Ronon Stevens & Young, LLP, New York, NY (Lijue T. Philip of counsel), for respondent.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Barry Schneps and Chaya Schneps appeal from two orders of the Supreme Court, Nassau County (Thomas A. Adams, J.), both dated September 10, 2019. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Barry Schneps, in effect, for leave to enter a default judgment against the defendant Chaya Schneps, and for an order of reference, and denied that branch of those defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against them. The second order, insofar as appealed from, granted the same relief to the plaintiff, denied the same relief to those defendants, and appointed a referee to compute the amount due to the plaintiff.
ORDERED that the first order is modified, on the law, (1) by deleting the provision thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Barry Schneps and for an order of reference, and substituting therefor a provision denying those branches of the plaintiff's motion, and (2) by deleting the provision thereof denying that branch of the cross motion of the defendants Barry Schneps and Chaya Schneps which was for summary judgment dismissing the complaint insofar as asserted against the defendant Barry Schneps, and substituting therefor a provision granting that branch of the cross motion; as so modified, the first order is affirmed insofar as appealed from, without costs or disbursements, and so much of the second order as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Barry Schneps and for an order of reference, denied that branch of the cross motion of the defendants Barry Schneps and Chaya Schneps which was for summary judgment dismissing the complaint insofar as asserted against the defendant Barry Schneps, and appointed a referee to compute the amount due to the plaintiff is vacated; and it is further,
ORDERED that the appeal from so much of the second order as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Barry Schneps and for an order of reference, denied that branch of the cross motion of the defendants Barry Schneps and Chaya Schneps which was for summary judgment [*2]dismissing the complaint insofar as asserted against the defendant Barry Schneps, and appointed a referee to compute the amount due to the plaintiff is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the first order; and it is further,
ORDERED that the second order is affirmed insofar as reviewed, without costs or disbursements.
On February 9, 2005, the defendant Barry Schneps (hereinafter Barry) and the defendant Chaya Schneps (hereinafter Chaya) executed a note in favor of GreenPoint Mortgage Funding, Inc. (hereinafter GreenPoint), in the sum of $387,000, which was secured by a mortgage on certain property located in West Hempstead. On May 6, 2016, the plaintiff, GreenPoint's successor in interest, commenced this action to foreclose the mortgage against, among others, Barry and Chaya (hereinafter together the defendants). Barry submitted an answer generally denying the allegations of the complaint and asserting a number of affirmative defenses, including lack of standing and failure to satisfy the conditions precedent to commencing the action. Chaya failed to answer or appear in the action. The plaintiff subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against Barry, in effect, for leave to enter a default judgment against Chaya, and for an order of reference. The defendants opposed the motion on the grounds that the plaintiff failed to establish, prima facie, its standing to commence the mortgage foreclosure action and its compliance with RPAPL 1304, and cross-moved, among other things, for summary judgment dismissing the complaint insofar as asserted against them on the same grounds.
In an order dated September 10, 2019, the Supreme Court, inter alia, granted those branches of the plaintiff's motion and denied those branches of the defendants' cross motion. By separate order, also dated September 10, 2019, the court granted the same relief to the plaintiff, denied the same relief to the defendants, and appointed a referee to compute the amount due to the plaintiff. The defendants appeal from both orders.
"[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a residential foreclosure action" (U.S. Bank Trust, N.A. v Mohammed, 197 AD3d 1205, 1207 [internal quotation marks omitted]; see Deutsche Bank Natl. Trust Co. v LoPresti, 203 AD3d at 884). Here, the defendants established, prima facie, that the plaintiff did not comply with RPAPL 1304, since additional notices were sent in the same envelope as the 90-day notice required by RPAPL 1304, and a single notice was jointly addressed to both of the defendants (see Bank of Am., N.A. v Kessler, 202 AD3d 10, 19; Wells Fargo Bank, N.A. v Yapkowitz, 199 AD3d 126, 136). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted that branch of the defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against Barry, and, for the same reason, should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Barry and for an order of reference.
The defendants' contention that the Supreme Court should have denied that branch of the plaintiff's motion which was, in effect, for leave to enter a default judgment against Chaya, and granted that branch of their cross motion which was for summary judgment dismissing the complaint insofar as asserted against Chaya is without merit (see Wells Fargo Bank, N.A. v Calvin, 203 AD3d 994, 995; Citimortgage, Inc. v Pierce, 203 AD3d 878, 880; Wilmington Trust, N.A. v Ashe, 189 AD3d 1130, 1132).
In light of our determination, we need not reach the defendants' remaining contentions.
CONNOLLY, J.P., RIVERA, ZAYAS and FORD, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482690/ | Matter of City of Yonkers v Police Benevolent Assn. of the City of Yonkers (2022 NY Slip Op 06241)
Matter of City of Yonkers v Police Benevolent Assn. of the City of Yonkers
2022 NY Slip Op 06241
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
JOSEPH J. MALTESE
HELEN VOUTSINAS, JJ.
2019-10894
(Index No. 63565/18)
[*1]In the Matter of City of Yonkers, appellant,
vPolice Benevolent Association of the City of Yonkers, respondent.
Coughlin & Gerhart, LLP, Binghamton, NY (Paul J. Sweeney of counsel), for appellant.
Gleason, Dunn, Walsh & O'Shea, Albany, NY (Ronald G. Dunn and Christopher M. Silva of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the petitioner appeals from an order of the Supreme Court, Westchester County (Linda S. Jamieson, J.), dated August 9, 2019. The order granted the respondent's motion to confirm an arbitration award dated May 8, 2019, and denied the petitioner's cross motion to vacate the arbitration award.
ORDERED that the order is affirmed, with costs.
The parties entered into a collective bargaining agreement (hereinafter the CBA) that was effective from July 1, 2009, to June 30, 2019. In 2008, the Yonkers Police Department (hereinafter the YPD) issued a policy providing, inter alia, that its police officers could not work more than 60 hours of overtime in a pay period without supervisory approval. In 2010, the YPD revised the policy, among other things, by reducing the maximum number of overtime hours permitted in a pay period without approval to 50.
In 2011, the respondent filed an improper practice charge with the New York State Public Employment Relations Board (hereinafter the PERB) challenging the 2010 change to the overtime policy. The parties thereafter commenced negotiations regarding the respondent's improper practice charge and orally agreed, inter alia, that the YPD would reinstitute the 60-hour overtime cap and make no further restrictions without negotiating with the respondent. The respondent thereafter withdrew its improper practice charge.
In July 2018, the YPD reduced the maximum number of overtime hours permitted in a pay period without supervisory approval to 40. The respondent filed an improper practice charge with PERB, filed a grievance with the petitioner, and served a demand for arbitration on the petitioner, seeking, inter alia, rescission of the 2018 policy. The petitioner then commenced this proceeding pursuant to CPLR article 75 to permanently stay the arbitration. The Supreme Court denied the petition, and the parties proceeded to arbitration.
After a hearing, the arbitrator issued an award in favor of the respondent, determining [*2]that the petitioner had violated the terms of the CBA by reducing the overtime cap and directing the petitioner to rescind the overtime restrictions in the 2018 policy and restore the 2011 policy permitting up to 60 hours of overtime in a pay period without supervisory approval. Thereafter, the respondent moved to confirm the award, and the petitioner cross-moved to vacate the award. The Supreme Court granted the respondent's motion and denied the petitioner's cross motion. The petitioner appeals.
An arbitration award shall be vacated if, as relevant here, "a party's rights were impaired by an arbitrator who 'exceeded his [or her] power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made'" (Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, 90, quoting CPLR 7511[b][1][iii]). "'[A]n arbitrator 'exceed[s] his [or her] power' under the meaning of [CPLR 7511(b)(1)(iii)] where [the] 'award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power'" (Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d at 90, quoting Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336; see Matter of Panos v Mid Hudson Med. Group, P.C., 204 AD3d 1016, 1017-1018). "The burden is on the movant to establish grounds for vacatur by clear and convincing evidence" (Matter of Panos v Mid Hudson Med. Group, P.C., 204 AD3d at 1018). "'Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies. A court cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one'" (Matter of Dedvukaj v Shkreli, 180 AD3d 895, 897, quoting Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326).
Here, the Supreme Court properly granted the respondent's motion to confirm the arbitration award and denied the petitioner's cross motion to vacate the arbitration award, as the award, which rested upon an interpretation of the CBA, did not violate a strong public policy, was not irrational, and did not clearly exceed a specifically enumerated limitation of the arbitrator's power (see Matter of City of Long Beach v Long Beach Professional Firefighters Assn., Local 287, 143 AD3d 710, 710; Structure Tek Constr., Inc. v Waterville Holdings, LLC, 140 AD3d 1151, 1152; Matter of Board of Educ. of City School Dist. of City of N.Y. v United Fedn. of Teachers, Local 2, Am. Fedn. of Teachers, AFL-CIO, 304 AD2d 826, 827). Contrary to the petitioner's contention, the arbitrator's determination that Article 27 of the CBA applies to the oral agreement between the YPD and the respondent, which provided that the YPD would reinstitute the 60-hour overtime cap and impose no further restrictions, was supported by the record, was not irrational, and did not rewrite the terms of the CBA.
The petitioner's remaining contentions are without merit.
DILLON, J.P., CHAMBERS, MALTESE and VOUTSINAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482688/ | Matter of Ger v Saxony Towers Realty Corp. (2022 NY Slip Op 06243)
Matter of Ger v Saxony Towers Realty Corp.
2022 NY Slip Op 06243
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
JOSEPH J. MALTESE
PAUL WOOTEN
BARRY E. WARHIT, JJ.
2019-07421
(Index No. 714605/18)
[*1]In the Matter of Igor Ger, et al., respondents,
vSaxony Towers Realty Corp., et al., appellants.
Forchelli Deegan Terrana LLP, Uniondale, NY (Richard A. Blumberg of counsel), for appellants.
Rex Whitehorn & Associates, P.C., Roslyn, NY, for respondents.
DECISION & ORDER
In a proceeding pursuant to Lien Law § 201-a, inter alia, to cancel certain liens on cooperative apartment units, Saxony Towers Realty Corp. and John B. Lovett & Associates, Ltd., appeal from a judgment of the Supreme Court, Queens County (Allan B. Weiss, J.), dated May 2, 2019. The judgment, insofar as appealed from, granted that branch of the petition which was to cancel the liens.
ORDERED that the judgment is reversed insofar as appealed from, on the law, with costs, and that branch of the petition which was to cancel the liens is denied.
The petitioners allege that they were the owners of shares allocable to certain apartment units in a residential cooperative building located in Jackson Heights. Saxony Towers Realty Corp. (hereinafter Saxony) was the proprietary lessor of the cooperative building, and John B. Lovett & Associates, Ltd., was the managing agent (hereinafter together the appellants). In July 2018, in accordance with provisions of the proprietary lease and the cooperative by-laws, Saxony sent notices of default by certified and regular mail to the addresses of the subject apartment units advising the petitioners that they were in default of their leases due to their failure to pay maintenance fees and other charges. In August 2018, Saxony sent notices of termination by certified and regular mail to the addresses of the subject apartment units advising the petitioners that their shares in the units would be cancelled due to the petitioners' failure to cure their default. In September 2018, Saxony sent notices of sale by certified and regular mail to the addresses of the subject apartment units stating that the petitioners' shares in the units would be sold at public auction.
The petitioners commenced this proceeding pursuant to Lien Law § 201-a, inter alia, to cancel liens asserted by the appellants on the apartment units at issue. In a judgment dated May 2, 2019, the Supreme Court, among other things, granted that branch of the petition which was to cancel the liens.
Pursuant to Lien Law § 201-a, within 10 days after service of a notice of sale, the owner or any person entitled to notice may commence a special proceeding to determine the validity of a lien. Here, while service upon the petitioners of the notices of sale was in accordance with the proprietary lease and the cooperative by-laws, the notices of sale did not contain a statement setting forth "[t]he nature of the debt or the agreement under which the lien arose, with an itemized statement of the claim and the time when due," as required under Lien Law § 201. Nevertheless, the [*2]deficiencies in the notices of sale did not provide a basis for cancellation of the liens (see McCormack v Anchor Sav. Bank , 181 AD2d 580; Giordano v Grand Prix Sales, Serv. Restoration Co. , 113 Misc 2d 395, 400 [Sup Ct, Nassau County]).
Furthermore, contrary to the Supreme Court's determination, the notices of default and the notices of termination were served upon the petitioners in accordance with the terms of the proprietary leases. Pursuant to the proprietary leases, any notices sent to a "Lessee," defined as the owner of shares of an apartment unit, had to be given in writing and sent by certified or registered mail "addressed to the Lessee at the building" where the subject apartment units were located. Here, the appellants complied with that requirement by sending the notices of default and the notices of termination by certified and registered mail to the addresses of the subject apartment units. Further, although the proprietary leases permitted a "Lessee" to provide written notice designating a different address for service of notices, there is no indication in the record that the petitioners ever provided such notice to designate a different address for such service.
To the extent that the Supreme Court granted that branch of the petition which was to cancel the liens on the ground that the appellants did not submit certain documents, including copies of the proprietary leases for apartment units at issue, the court's determination was improper.
The parties' remaining contentions either need not be reached in light of our determination, are not properly before this Court, or are without merit.
Accordingly, the Supreme Court should have denied that branch of the petition which was to cancel the liens.
BARROS, J.P., MALTESE, WOOTEN and WARHIT, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482698/ | Greenstein v Danzy (2022 NY Slip Op 06232)
Greenstein v Danzy
2022 NY Slip Op 06232
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
JOSEPH J. MALTESE
LINDA CHRISTOPHER
JANICE A. TAYLOR, JJ.
2021-03504
(Index No. 513053/20)
[*1]Michael Greenstein, appellant,
vRonel Danzy, respondent.
Thomas D. Wilson, P.C., Brooklyn, NY, for appellant.
Milber Makris Plousadis & Seiden, LLP, Woodbury, NY (Samantha B. Lansky of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries and injury to property, the plaintiff appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated March 19, 2021. The order, insofar as appealed from, granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
On November 9, 2019, the plaintiff allegedly was stopped in his vehicle at a red light facing northbound on Williams Street at its intersection with Front Street in Hempstead. A vehicle owned by nonparty Imiria Ladson, while making a left turn from Front Street onto Williams Street traveling southbound, collided with a vehicle owned by nonparty Guanaco Taxi Corp. and operated by nonparty Josue Hernandez. Ladson's vehicle then made contact with the plaintiff's vehicle.
The plaintiff commenced an action to recover damages for personal injuries and injury to property against Ladson, Guanaco Taxi Corp., and Hernandez. The parties reached a settlement agreement and the action was discontinued.
The plaintiff subsequently commenced this action to recover damages for personal injuries and injury to property against the defendant. The plaintiff alleged that the defendant was the operator of Ladson's vehicle at the time of the accident. The defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated March 19, 2021, the Supreme Court, among other things, granted that branch of the motion. The plaintiff appeals, and we affirm.
"A motion to dismiss a complaint based upon documentary evidence may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Anderson v Armentano, 139 AD3d 769, 770 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). "On a motion to dismiss [a] complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Breytman v [*2]Olinville Realty, LLC, 54 AD3d 703, 703-704; see Leon v Martinez, 84 NY2d 83, 87). Where a defendant has submitted evidentiary material in support of a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), "the criterion is whether the [plaintiff] has a cause of action, not whether he [or she] has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate" (Guggenheimer v Ginzburg, 43 NY2d 268, 275). Here, the documentary evidence submitted by the defendant conclusively established that he was not the operator of Ladson's vehicle when the accident occurred.
Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was pursuant to CPLR 3211(a) to dismiss the complaint.
DUFFY, J.P., MALTESE, CHRISTOPHER and TAYLOR, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482692/ | Matter of Bibi H. v Services-Queens (2022 NY Slip Op 06244)
Matter of Bibi H. v Services-Queens
2022 NY Slip Op 06244
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
ROBERT J. MILLER
DEBORAH A. DOWLING
BARRY E. WARHIT, JJ.
2022-00020
2022-00022
(Docket Nos. N-25143-18, V-13511-19)
[*1]In the Matter of Bibi H. (Anonymous), petitioner-respondent,
vAdmin. for Children's Services-Queens, respondent- respondent, Priya S. (Anonymous), appellant. (Proceeding No. 1.)
In the Matter of Ashton J. (Anonymous). Administration for Children's Services, petitioner-respondent; Priya S. (Anonymous), appellant. (Proceeding No. 2.)
Hector L. Santiago, Kew Gardens, NY, for appellant.
Janis A. Parazzelli, Floral Park, NY, for petitioner-respondent in Proceeding No. 1.
Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Devin Slack and Kate Fletcher of counsel), for respondent-respondent in Proceeding No. 1 and petitioner-respondent in Proceeding No. 2.
Ronna L. DeLoe, Larchmont, NY, attorney for the child.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 10 and a related proceeding pursuant to Family Court Act article 6, the mother appeals from (1) an order of fact-finding and disposition of the Family Court, Queens County (Monica D. Shulman, J.), dated December 3, 2021, and (2) an order of the same court dated December 3, 2021. The order of fact-finding and disposition, insofar as appealed from, after a hearing, found that the mother neglected the subject child. The order, after a hearing and upon the mother's consent, granted the maternal grandmother's petition for custody of the subject child.
ORDERED that the appeal from the order is dismissed, without costs or disbursements; and it is further,
ORDERED that the order of fact-finding and disposition is affirmed insofar as appealed from, without costs or disbursements.
The appeal from the order must be dismissed, as no appeal lies from an order entered upon the consent of the appealing party (see Matter of Kevon G. [Keith G.], 196 AD3d 572, 572-573).
In December 2018, the Administration for Children's Services (hereinafter ACS) commenced a proceeding pursuant to Family Court Act article 10, alleging that the mother neglected the subject child as a result of her mental illness. After a hearing, the Family Court found that the mother neglected the child as a result of her ongoing mental illness and refusal to take medication, which rendered her unable to care for the child. The mother appeals.
The mother's contention that the Family Court was biased against her is unpreserved for appellate review. In any event, when a claim of bias is raised, "[t]he inquiry on appeal is limited to whether the judge's bias, if any, unjustly affected the result to the detriment of the complaining party" (Matter of Davis v Pignataro, 97 AD3d 677, 678 [internal quotation marks omitted]). Here, the record reflects that the court treated the parties fairly and did not have a predetermined outcome of the case in mind during the hearing (see Matter of Bowe v Bowe, 124 AD3d 645, 646; Matter of Davis v Pignataro, 97 AD3d at 678). The mother's contention that she was deprived of a fair hearing by certain of the court's evidentiary rulings is unpreserved for appellate review and, in any event, without merit.
At a fact-finding hearing in a child protective proceeding pursuant to Family Court Act article 10, the petitioner has the burden of establishing that the subject child has been abused or neglected by "a preponderance of evidence" (Family Ct Act § 1046[b][i]; see id. § 1012[f][i]). "Even though evidence of a parent's mental illness, alone, is insufficient to support a finding of neglect of a child, such evidence may be part of a neglect determination when the proof further demonstrates that the parent's condition creates an imminent risk of physical, mental, or emotional harm to the child" (Matter of Maurice M. [Suzanne H.], 158 AD3d 689, 690-691; see Matter of Joseph L. [Cyanne W.], 168 AD3d 1055, 1056). Proof of a parent's "ongoing mental illness and the failure to follow through with aftercare medication is a sufficient basis for a finding of neglect where such failure results in a parent's inability to care for [his or] her child in the foreseeable future" (Matter of Bella S. [Sarah S.], 158 AD3d 703, 704 [internal quotation marks omitted]; see Matter of Khaleef M. S.-P. [Khaleeda M.S.], 203 AD3d 1160).
Here, ACS established by a preponderance of the evidence that the mother neglected the child. The evidence presented by ACS at the hearing demonstrated that the mother's lack of insight into her ongoing mental illness and her failure to comply with prescribed medication management and treatment placed the child at imminent risk of harm (see Matter of Christian G. [Alexis G.], 192 AD3d 1027, 1029; Matter of Anthony A.R. [Taicha P.], 188 AD3d 697, 698-699; Matter of Nialani T. [Elizabeth B.], 164 AD3d 1245, 1246).
The remaining contentions of the mother, the maternal grandmother, and the attorney for the child are either not properly before this Court or without merit.
BARROS, J.P., MILLER, DOWLING and WARHIT, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482691/ | Matter of Boyd v Cumbo (2022 NY Slip Op 06240)
Matter of Boyd v Cumbo
2022 NY Slip Op 06240
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
ROBERT J. MILLER
WILLIAM G. FORD
HELEN VOUTSINAS, JJ.
2020-09757
2022-08329
(Index No. 1518/19)
[*1]In the Matter of Alicia Boyd, et al., respondents,
vLaurie Cumbo, etc., et al., appellants.
Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Claude S. Platton and Amy McCamphill of counsel), for appellants Laurie Cumbo, Winston R. Von Engle, Marisa Lago, City of New York, Department of City Planning of the City of New York, New York City Planning Commission, and New York City Department of Buildings.
Herrick Feinstein, LLP, New York, NY (Avery S. Mehlman, Jina Moon, and Joshua Herman of counsel), for appellants Carroll Development Plaza, LLC, and Franklin Yards, LLC.
Fox Rothschild, LLP, New York, NY (Karen Binder, Oksana G. Wright, and Philip Langer of counsel), for appellant CP VI Crown Heights, LLC.
Abrams Fensterman, LLP, White Plains, NY (Robert A. Spolzino and Lisa Colosi Florio of counsel), for appellant Cornell Realty Management, LLC.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78, in effect, to review a determination of the Council of the City of New York, dated December 20, 2018, which approved amendment of the Zoning Map and Zoning Resolution to facilitate the development of two new 16-story buildings on sites located at 40 Crown Street and 931 Carroll Street in the Crown Heights neighborhood of Brooklyn, Laurie Cumbo, Winston R. Von Engle, Marisa Lago, City of New York, Department of City Planning of the City of New York, New York City Planning Commission, and New York City Department of Buildings appeal from a judgment of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated December 8, 2020, and CP VI Crown Heights, LLC, Cornell Realty Management, LLC, and Carroll Development Plaza, LLC, and Franklin Yards, LLC, separately appeal from (1) an order of the same court dated February 20, 2020, and (2) the judgment. The order, insofar as appealed from, denied those branches of the separate motions of CP VI Crown Heights, LLC, Cornell Realty Management, LLC, and Carroll Development Plaza, LLC, and Franklin Yards, LLC, which were to dismiss the petition insofar as asserted against each of them. The judgment granted the petition and annulled the determination of the Council of the City of New York dated December 20, 2018.
ORDERED that the appeals from the order are dismissed; and it is further,
ORDERED that the judgment is reversed, on the law, the petition is denied, and the [*2]proceeding is dismissed; and it is further,
ORDERED that one bill of costs is awarded to the appellants appearing separately and filing separate briefs.
The appeals from the intermediate order must be dismissed, since an intermediate order made in a CPLR article 78 proceeding is not appealable as of right (see CPLR 5701[b][1]), and any possibility of taking a direct appeal therefrom terminated with the entry of the judgment in the proceeding (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeals from the order are brought up for review and have been considered on the appeals from the judgment (see CPLR 5501[a][1]).
Cornell Realty Management, LLC, submitted a land use application and an Environmental Assessment Statement (hereinafter EAS) seeking amendments to the Zoning Map and Zoning Resolution in order to rezone portions of an area in Crown Heights, Brooklyn, so as to develop properties at 40 Crown Street and 931 Carroll Street. The Department of City Planning (hereinafter DCP), the lead agency, determined that the project would not result in potentially significant adverse environmental impacts and issued a negative declaration. After further review and public hearing, on December 20, 2018, the Council of the City of New York (hereinafter the City Council), in effect, approved the application and amended the Zoning Map and the Zoning Resolution accordingly. The petitioners commenced this CPLR article 78 proceeding seeking to review the determination on the ground that DCP's underlying environmental review failed to comply with the requirements of the State Environmental Quality Review Act (SEQRA) (ECL 8-0101 et seq.; see 6 NYCRR 617.1 et seq.) and City Environmental Quality Review (CEQR) rules (43 RCNY 6-01 et seq.; 62 RCNY 5-01 et seq.). In an order dated February 20, 2020, the Supreme Court, inter alia, denied those branches of the separate motions of CP VI Crown Heights, LLC, Cornell Realty Management, LLC, and Carroll Development Plaza, LLC, and Franklin Yards, LLC, which were to dismiss the petition insofar as asserted against each of them. In a judgment dated December 8, 2020, the court, upon concluding that DCP failed to take a hard look at the environmental impacts on water and sewer infrastructure, and thus, that its determination was not rational or supported by the record, granted the petition and annulled the City Council's determination (see Matter of Boyd v Cumbo, 69 Misc 3d 1222[A], 2020 NY Slip Op 51462[U] [Sup Ct, Kings County]). These appeals ensued.
"An agency's initial determination . . . under SEQRA and CEQR is whether an EIS [environmental impact statement] is required, which in turn depends on whether an action may or will not have a significant effect on the environment" (Matter of Chinese Staff & Workers' Assn. v Burden, 19 NY3d 922, 923 [internal quotation marks omitted]; see Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 364). "Where an agency determines that an EIS is not required, it will issue a 'negative declaration'" (Matter of Chinese Staff & Workers' Assn. v Burden, 19 NY3d at 924, quoting Matter of Spitzer v Farrell, 100 NY2d 186, 190). "Although the threshold triggering an EIS is relatively low, a negative declaration is properly issued when the agency has made a thorough investigation of the problems involved and reasonably exercised its discretion" (Matter of Chinese Staff & Workers' Assn. v Burden, 19 NY3d at 924 [internal quotation marks omitted]; see Matter of Spitzer v Farrell, 100 NY2d at 190).
Judicial review of a lead agency's SEQRA or CEQR determination is limited to whether the determination was made in accordance with lawful procedure and whether, substantively, the determination "was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803[3]; see Matter of Chinese Staff & Workers' Assn. v Burden, 19 NY3d at 924; Matter of Rimler v City of New York, 172 AD3d 868, 871). "In assessing an agency's compliance with the substantive mandates of the statute, the courts must review the record to determine whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination" (Matter of Chinese Staff & Workers' Assn. v Burden, 19 NY3d at 924 [internal quotation marks omitted]; see Akpan v Koch, 75 NY2d 561, 570; Matter of Rimler v City of New York, 172 AD3d at 871).
Applying that standard here, we find that DCP neither abused its discretion nor was arbitrary and capricious when it issued a negative declaration determining that the proposed rezoning would have no significant adverse effect on the environment, since DCP identified the relevant areas of environmental concern requiring study under SEQRA/CEQR, took a hard look at them, and made a reasoned elaboration of the basis for its determination (see Matter of Chinese Staff & Workers' Assn. v Burden, 19 NY3d at 924; Matter of Rimler v City of New York, 172 AD3d 868, 871).
With regard to water and sewer infrastructure, in evaluating a project's potential to result in a significant adverse impact to the environment, a "preliminary infrastructure analysis" is required only if the project would exceed the "incremental development of . . . 400 residential units or 150,000 sq. ft. of commercial, public facility, and institution and/or community facility space or more in the Bronx, Brooklyn, Staten Island, or Queens" (2014 CEQR Technical Manual, ch 13, § 220, at 13-9). Here, DCP determined that, since the incremental development was less than 400 residential units, there was no potential adverse impact to the environment related to water and sewer infrastructure. That determination was based on comparing a no-action scenario which was based, inter alia, on the number of dwelling units set forth in building plans previously filed for the applicant-owned properties, and a with-action scenario based upon the number of dwelling units as calculated, inter alia, by using a dwelling unit factor of 1,000, which, as set forth in an affidavit of City Planner Kevin Kraft, was the dwelling unit factor typically used to project new development outside of Manhattan.
The Supreme Court determined, in effect, that DCP failed to take a hard look at potential sewer and water impacts based on perceived inconsistencies between the land use applications and EAS, which led the court to conclude that DCP should not have accepted a dwelling unit factor of 1,000 to project future development under the rezoning.
Contrary to the Supreme Court's determination, in accepting projections based on a dwelling unit factor of 1,000, DCP endorsed a reasonable worst case development scenario consistent with the CEQR technical manual (see id. at 2-5), and thus, reasonably concluded that the rezoning had no potential for significant adverse environmental impacts related to water and sewer infrastructure (see Matter of Chinese Staff and Workers' Assn. v Burden, 88 AD3d 425, 430-432, affd 19 NY3d 922). Moreover, the court's determination that DCP should not have accepted a dwelling unit factor of 1,000 to project future development under the rezoning was based on its own incorrect calculations and is otherwise unsupported by the record. Further, "[w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency" (Akpan v Koch, 75 NY2d at 570). Here, the court improperly substituted its own judgment for that of the agency in determining that DCP failed to take a hard look at the environmental impacts on sewer and water infrastructure and thus, overstepped the bounds of SEQRA and CEQR review in granting the petition and annulling the determination.
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
CONNOLLY, J.P., MILLER, FORD and VOUTSINAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482671/ | People v Bonifacio (2022 NY Slip Op 06258)
People v Bonifacio
2022 NY Slip Op 06258
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
REINALDO E. RIVERA
CHERYL E. CHAMBERS
JOSEPH A. ZAYAS, JJ.
2020-06851
(Ind. No. 610/19)
[*1]The People of the State of New York, respondent,
vRamon Bonifacio, appellant.
Matthew W. Brissenden, Garden City, NY, for appellant.
Anne T. Donnelly, District Attorney, Mineola, NY (Cristin N. Connell of counsel; Matthew C. Frankel on the brief), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Nassau County (Angelo A. Delligatti, J.), rendered August 14, 2020, convicting him of attempted murder in the second degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is affirmed.
Contrary to the defendant's contention, the sentence imposed was not excessive (see People v Suitte , 90 AD2d 80).
BRATHWAITE NELSON, J.P., RIVERA, CHAMBERS and ZAYAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482669/ | People v Castelan (2022 NY Slip Op 06259)
People v Castelan
2022 NY Slip Op 06259
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
REINALDO E. RIVERA
JOSEPH J. MALTESE
LARA J. GENOVESI, JJ.
2020-00246
(Ind. No. 155/19)
[*1]The People of the State of New York, respondent,
vChristian Castelan, appellant.
Warren S. Hecht, Forest Hills, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant, as limited by his motion, from a sentence of the County Court, Orange County (Robert H. Freehill, J.), imposed December 4, 2019, upon his plea of guilty, on the ground that the sentence was excessive.
ORDERED that the sentence is affirmed.
The sentence imposed was not unduly harsh or severe (see CPL 470.15[6][b]; People v Thompson , 60 NY2d 513, 519).
BRATHWAITE NELSON, J.P., RIVERA, MALTESE and GENOVESI, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482686/ | Matter of Maione v Zucker (2022 NY Slip Op 06246)
Matter of Maione v Zucker
2022 NY Slip Op 06246
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
JOSEPH A. ZAYAS
WILLIAM G. FORD
JANICE A. TAYLOR, JJ.
2020-02050
(Index No. 830/19)
[*1]In the Matter of Scott Maione, etc., et al., petitioners,
vHoward Zucker, etc., et al., respondents.
Louis J. Maione, New York, NY, for petitioners.
Letitia James, Attorney General, New York, NY (Anisha S. Dasgupta, Amit R. Vora, and Elizabeth Brody of counsel), for respondents.
DECISION & JUDGMENT
Proceeding pursuant to CPLR article 78 to review nine determinations of the respondent New York State Department of Health dated February 22, 2019, February 25, 2019, February 26, 2019, February 27, 2019, February 28, 2019, March 1, 2019, and March 8, 2019, respectively, which denied, after nine separate fair hearings before an administrative law judge, the petitioners' claims for Medicaid reimbursement for certain transportation, meals, and other related expenses the petitioners incurred while transporting their children to receive Medicaid covered services, and in the nature of mandamus, inter alia, to compel the respondent New York State Department of Health to reimburse the petitioners for these expenses.
ADJUDGED that the determinations are confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
The petitioners are the parents of disabled twins who have been Medicaid beneficiaries with coverage retroactive to their births in 2011. From 2011 through 2016, the petitioners incurred certain meal and mileage expenses while transporting the subject children to Medicaid covered medical appointments. Pursuant to, inter alia, 18 NYCRR 505.10, the petitioners submitted to the respondent New York State Department of Health (hereinafter DOH), claims for reimbursement of these transportation expenses. DOH, among other things, denied some of the petitioners' claims for transportation reimbursement and reimbursed certain other expense claims below the amounts sought by the petitioners, based upon the DOH-issued "Medicaid Transportation Program Policy Regarding Reimbursement of Travel-Related Expenses" (hereinafter the Medicaid Transportation Reimbursement Policy). The petitioners administratively appealed the reimbursement decisions before an administrative law judge (hereinafter ALJ), culminating, as is pertinent here, in nine fair hearings held pursuant to 18 NYCRR 358-5.9. Following each hearing, the ALJ upheld the DOH's determinations. The petitioners then commenced this proceeding pursuant to CPLR article 78, challenging the DOH's determinations as upheld by the ALJ, and seeking, in the nature of mandamus, immediate reimbursement of all of the Medicaid transportation expenses they incurred while transporting the subject children for Medicaid covered medical appointments from 2011 onward, and all of the Medicaid transportation expenses they will incur in the future.
"The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" (Ryan v New York Tel. Co., 62 NY2d 494, 500 [emphasis omitted]; see Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199). "This doctrine applies only 'if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the . . . [party to be bound] had a full and fair opportunity to litigate the issue in the earlier action'" (City of New York v Welsbach Elec. Corp., 9 NY3d 124, 128, quoting Parker v Blauvelt Volunteer Fire Co., 93 NY2d 347, 349).
Here, the petitioners' contentions that the DOH's determinations are arbitrary and capricious, an abuse of discretion, in violation of lawful procedure, or affected by an error of law, are precluded by the doctrine of collateral estoppel, as these same issues were raised by them and decided against them in a prior proceeding, namely Maione v Medical Answering Servs., LLC (2018 WL 4682018, 2018 US Dist LEXIS 168243 [SD NY, No. 17-CV-8106 (JMF)]), and the petitioners failed to demonstrate that they did not have a full and fair opportunity to contest the prior determination (see Matter of A. Ottavino Prop. Corp. v Incorporated Vil. of Westbury, 203 AD3d 920, 921; Matter of Robert v O'Meara, 28 AD3d 567, 568).
In any event, the DOH's determinations were neither arbitrary and capricious, an abuse of discretion, in violation of lawful procedure, nor affected by an error of law. Contrary to the petitioners' contentions, the DOH's Medicaid Transportation Reimbursement Policy, as applied here, represents a reasonable and rational interpretation of its own regulations, and promotes the DOH's goal to efficiently allocate limited governmental resources under the Medicaid program (see Matter of Wayne Ctr. for Nursing & Rehabilitation, LLC v Zucker, 197 AD3d 1409, 1416; Matter of Exclusive Ambulette Serv., Inc. v New York State Dept. of Health, 170 AD3d 721, 723; Matter of SCO Family of Servs. v New York State Dept. of Health, 149 AD3d 753, 754; Matter of Northern Metro. Residential Healthcare Facility, Inc. v Novello, 72 AD3d 1383, 1386).
Pursuant to CPLR 7803(4), when reviewing an administrative determination with respect to a claim for Medicaid reimbursement made after a fair hearing, the court must ascertain whether there is substantial evidence supporting the determination (see Matter of Dell'Olio v New York State Off. of Temporary & Disability Assistance, 166 AD3d 614; Matter of Schaffer v Zucker, 165 AD3d 1266, 1267). "Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of Mangels v Zucker, 168 AD3d 1060, 1061; see Matter of Kennedy v State of New York Justice Ctr. for the Protection of People with Special Needs, 204 AD3d 670, 671-672). "The petitioner bears the burden of demonstrating eligibility" (Matter of Mangels v Zucker, 168 AD3d at 1061).
Here, the DOH's determinations rejecting the petitioners' claims for reimbursement of certain meal and mileage expenses incurred by them when transporting the subject children to Medicaid covered services, based upon the distance and time requirements for meal reimbursements, application of a mileage reimbursement rate for a Medicaid recipient driven by a person who lives in the same household as opposed to a higher rate for a Medicaid recipient driven by a person who does not live in the same household, the requirement that a Medicaid beneficiary submit reimbursement claims for travel related expenses within 90 days of the trip, the rule against reimbursement for tips, the itemized original receipt requirement for meal expenses, and the specific caps on reimbursement for breakfast, lunch, and dinner, as set forth in the Medicaid Transportation Reimbursement Policy, is supported by substantial evidence (see 18 NYCRR 358-5.9[a][1]; Matter of Dell'Olio v New York State Off. of Temporary & Disability Assistance, 166 AD3d at 616; Matter of Schaffer v Zucker, 165 AD3d at 1267; Matter of German Masonic Home Corp. v Commissioner of Health of State of N.Y., 109 AD3d 917).
Accordingly, we confirm the DOH's determinations, deny the petition, and dismiss the proceeding on the merits.
BARROS, J.P., ZAYAS, FORD and TAYLOR, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482678/ | National Gen. Ins. Online, Inc. v Blasco (2022 NY Slip Op 06252)
National Gen. Ins. Online, Inc. v Blasco
2022 NY Slip Op 06252
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
VALERIE BRATHWAITE NELSON
CHERYL E. CHAMBERS
LILLIAN WAN, JJ.
2019-13906
(Index No. 605852/18)
[*1]National General Insurance Online, Inc., et al., respondents,
vFranklin Blasco, et al., defendants, AB Medical Supply, Inc., et al., appellants.
The Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak and Maksim Leyvi of counsel), for appellants.
McDonnell Adels & Klestzick, PLLC, Garden City, NY (Michael J. Giordano of counsel), for respondents.
DECISION & ORDER
In an action, inter alia, for a judgment declaring that the plaintiffs are not obligated to pay certain no-fault claims, the defendants AB Medical Supply, Inc., AB Quality Health Supply Corp., ACH Chiropractic, P.C., Energy Chiropractic, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., JPF Medical Services, P.C., Jules Francois Parisien, Kings Rehab Acupuncture, P.C., and Maria Shiela Masigla appeal from a judgment of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered November 13, 2019. The judgment, upon an order of the same court entered October 9, 2019, granting that branch of the plaintiffs' motion which was for summary judgment on the complaint insofar as asserted against those defendants, inter alia, declared that the plaintiffs have no duty to provide coverage for the subject no-fault claims.
ORDERED that the judgment is affirmed, with costs.
In April 2017 and June 2017, within days of the defendants Jerry Noland and Franklin Blasco procuring automobile insurance policies, the vehicles for which the policies were issued were involved in two separate automobile collisions when they each came into contact with two separate taxicabs. In or around April 2018, the plaintiffs, National General Insurance Online, Inc., and National General Insurance Company, commenced this action against Noland, Blasco and other individuals involved in the collisions, as well as, among others, the defendants AB Medical Supply, Inc., AB Quality Health Supply Corp., ACH Chiropractic, P.C., Energy Chiropractic, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., JPF Medical Services, P.C., Jules Francois Parisien, Kings Rehab Acupuncture, P.C., and Maria Shiela Masigla (hereinafter collectively the medical provider defendants), alleging, inter alia, that the collisions were intentional. After the Supreme Court granted the plaintiffs' motion for leave to enter a default judgment against, among others, the individuals involved in the two collisions, the plaintiffs moved, among other things, for summary judgment on the complaint insofar as asserted against the medical provider defendants, arguing, inter alia, that they are not obligated to pay no-fault claims submitted to them by the medical provider defendants in connection with the collisions. In an order entered October 9, 2019, the Supreme Court granted that branch of the motion. A judgment was entered November 13, 2019. The medical provider defendants appeal. We affirm.
The medical provider defendants failed to sustain their burden of demonstrating that the branch of the plaintiffs' motion which was for summary judgment on the complaint insofar as asserted against them was premature (see CPLR 3212[f]; Shah v MTA Bus Co., 201 AD3d 833). Further, an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699), and here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating, through admissible evidence, that the subject collisions were intentionally caused or staged (see State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490; cf. Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691; Nationwide Gen. Ins. Co. v Bates, 130 AD3d 795). In opposition, the medical provider defendants failed to raise a triable issue of fact as to whether the collisions were intentionally caused or staged. Accordingly, the Supreme Court properly granted that branch of the plaintiffs' motion which was for summary judgment on the complaint insofar as asserted against the medical provider defendants.
BARROS, J.P., BRATHWAITE NELSON, CHAMBERS and WAN, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482702/ | Dudley-Lanier v City of New York (2022 NY Slip Op 06228)
Dudley-Lanier v City of New York
2022 NY Slip Op 06228
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
HECTOR D. LASALLE, P.J.
ROBERT J. MILLER
LARA J. GENOVESI
LILLIAN WAN, JJ.
2020-01334
2020-01337
(Index No. 12978/14)
[*1]Lenora Dudley-Lanier, etc., plaintiff,
vCity of New York, et al., respondents; George Heath, nonparty-appellant.
George Heath, Brooklyn, NY, nonparty-appellant pro se.
Bamundo Zwal Schermerhorn & Caffrey LLP, New York, NY (Bartholomew T. Russo of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, nonparty George Heath appeals from (1) an order of the Court of Appeals dated December 19, 2019, and (2) an order of the Supreme Court, Kings County (Reginald A. Boddie, J.), dated January 23, 2020. The order of the Court of Appeals dated December 19, 2019, dismissed the motion of nonparty George Heath for leave to appeal. The order of the Supreme Court, Kings County, dated January 23, 2020, denied the motion of nonparty George Heath, in effect, for leave to reargue and renew his prior motions for a declaratory judgment and for leave to amend the complaint, which had been denied in an order of the same court (Bernard J. Graham) dated April 10, 2018.
ORDERED that the appeal from the order of the Court of Appeals dated December 19, 2019, is dismissed; and it is further,
ORDERED that the appeal from so much of the order of the Supreme Court, Kings County, dated January 23, 2020, as denied that branch of the motion of nonparty George Heath which was, in effect, for leave to reargue is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,
ORDERED that the order of the Supreme Court, Kings County, dated January 23, 2020, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
In June 2013, Marion Dudley (hereinafter the decedent) allegedly was injured while being cared for by a home attendant employed by some or all of the defendants. George Heath, the decedent's son, acting on the decedent's behalf under a power of attorney, commenced this action against the defendants to recover damages for the decedent's personal injuries. On March 24, 2015, the decedent died, and Lenora Dudley-Lanier was thereafter appointed administrator of the decedent's estate.
Subsequently, Heath moved for leave to amend the complaint to add a cause of action alleging that he had suffered personal injuries as a result of the defendants' actions in caring for the decedent, and separately moved for a declaratory judgment. Dudley-Lanier cross-moved, on behalf of the decedent's estate, to amend the caption to substitute herself, as administrator of the decedent's estate, as the plaintiff.
In an order dated April 10, 2018, the Supreme Court, inter alia, denied both of Heath's motions and granted Dudley-Lanier's cross motion. The court denied Heath's motion for a declaratory judgment on the ground that Heath did not have standing in this action because the power of attorney held by Heath terminated upon the decedent's death. The court denied Heath's motion for leave to amend the complaint on the ground, inter alia, that the proposed amendment was palpably insufficient and patently devoid of merit.
Thereafter, Heath moved, in effect, for leave to reargue and renew his motions for a declaratory judgment and for leave to amend the complaint. In an order dated January 23, 2020, the Supreme Court denied the motion, in effect, for leave to reargue and renew as untimely. Heath appeals.
Since no appeal lies from an order denying leave to reargue, the appeal from so much of the order dated January 23, 2020, as denied that branch of Heath's motion which was, in effect, for leave to reargue must be dismissed (see SMS Fin. XXXI, LLC v Great Locations, Inc., 187 AD3d 1087; JP Morgan Chase Bank, N.A. v Smith Elec. Contr., Inc., 117 AD3d 909, 910).
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221[e][2]). "Except where a motion to renew is based upon a change in the law, which is not the case here, CPLR 2221 does not impose a time limit for making a motion for leave to renew" (Citimortgage, Inc. v Espinal, 136 AD3d 857, 858). Therefore, the Supreme Court erred in determining that the branch of Heath's motion which was, in effect, for leave to renew was untimely. Nevertheless, Heath failed to present new facts not offered in support of his prior motions that would change the prior determination (see Jian Feng Zhang v Roman, 186 AD3d 1625, 1626; Moyal v Dewhurst, 177 AD3d 666, 667). Accordingly, the court properly denied that branch of Heath's motion which was, in effect, for leave to renew.
LASALLE, P.J., MILLER, GENOVESI and WAN, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482679/ | Merrill Lynch Credit Corp. v Nicholson (2022 NY Slip Op 06239)
Merrill Lynch Credit Corp. v Nicholson
2022 NY Slip Op 06239
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
REINALDO E. RIVERA
CHERYL E. CHAMBERS
DEBORAH A. DOWLING, JJ.
2018-05753
2018-05754
2019-14379
2019-14381
(Index No. 9227/12)
[*1]Merrill Lynch Credit Corporation, plaintiff,
vYolande Nicholson, appellant, et al., defendants; Bank of America, National Association, nonparty-respondent. (Appeal Nos. 1 and 2.)
Bank of America, National Association, respondent,
vYolande Nicholson, appellant, et al., defendants. (Appeal Nos. 3 and 4.)
Law Offices of Robert L. Reda, P.C., Suffern, NY, for appellant.
In an action to foreclose a mortgage, the defendant Yolande Nicholson appeals from (1) an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated January 31, 2018, (2) an order of the same court (Lawrence Knipel, J.) also dated January 31, 2018, (3) an order of the same court (Ingrid Joseph, J.) dated July 26, 2019, and (4) an order and judgment of foreclosure and sale (one paper) of the same court (Ingrid Joseph, J.) dated July 26, 2019. The first order dated January 31, 2018, insofar as appealed from, granted those branches of the motion of Merill Lynch Credit Corporation which were for summary judgment on the complaint insofar as asserted against the defendant Yolande Nicholson, to strike that defendant's answer and affirmative defenses, and for an order of reference. The second order dated January 31, 2018, insofar as appealed from, granted the same relief to Merrill Lynch Credit Corporation and appointed a referee. The order dated July 26, 2019, insofar as appealed from, granted the motion of Bank of America, National Association to confirm a referee's report and for a judgment of foreclosure of sale. The order and judgment of foreclosure and sale, inter alia, confirmed the referee's report and directed the sale of the subject property.
DECISION & ORDER
By order to show cause dated November 24, 2021, the parties to the appeals were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeals from the two orders dated January 31, 2018, on the ground that the right of direct appeal from those orders terminated upon entry of the order and judgment of foreclosure and sale in the action. By decision and order of motion dated March 25, 2022, this Court, inter alia, held the motion to dismiss the appeals from the two orders dated January 31, 2018, in abeyance and referred it to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.
Upon the order to show cause and the papers filed in response thereto, and upon the submission of the appeals, it is
ORDERED that the motion to dismiss the appeals from the orders dated January 31, 2018, is granted; and it is further,
ORDERED that the appeals from the orders dated January 31, 2018, are dismissed; and it is further,
ORDERED that the appeal from the order dated July 26, 2019, is dismissed; and it is further,
ORDERED that the order and judgment of foreclosure and sale is reversed, on the law, those branches of the motion of Merrill Lynch Credit Corporation which were for summary judgment on the complaint insofar as asserted against the defendant Yolande Nicholson, to strike that defendant's answer and affirmative defenses, and for an order of reference are denied, the motion of Bank of America, National Association to confirm the referee's report and for a judgment of foreclosure and sale is denied as academic, and the orders dated January 31, 2018, and the order dated July 26, 2019, are modified accordingly; and it is further,
ORDERED that one bill of costs is awarded to the defendant Yolande Nicholson.
The appeals from the two orders dated January 31, 2018, and the order dated July 26, 2019, must be dismissed because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeals from the orders dated January 31, 2018, and the order dated July 26, 2019, are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1]; Matter of Aho, 39 NY2d at 248).
On May 2, 2012, Merill Lynch Credit Corporation (hereinafter Merrill Lynch) commenced this action against the defendant Yolande Nicholson (hereinafter the defendant), among others, to foreclose a mortgage on residential property in East Flatbush. Thereafter, Merill Lynch moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer and affirmative defenses, for an order of reference, and to amend the caption to substitute Bank of America, National Association (hereinafter BoA), as the plaintiff. In two orders dated January 31, 2018, the Supreme Court, inter alia, granted those branches of Merrill Lynch's motion.
Thereafter, in an order dated July 26, 2019, the Supreme Court, inter alia, granted BoA's motion to confirm the referee's report and for a judgment of foreclosure and sale. On the same date, the court issued an order and judgment of foreclosure and sale, among other things, confirming the referee's report and directing the sale of the subject property. The defendant appeals.
"Generally, in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" (JPMorgan Chase Bank, N.A. v Newton, 203 AD3d 902, 906). Here, Merrill Lynch failed to submit admissible evidence establishing the defendant's default. In support of its motion, Merrill Lynch submitted, inter alia, the affidavit of Theresia Ang, the vice president of its loan servicer and attorney-in-fact. However, Ang failed to attach the business records on which she relied, and thus, her averment to the defendant's default was hearsay lacking in probative value (see id. at 906; Citibank, N.A. v Yanling Wu, 199 AD3d 48, 58; Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 208). Although Merrill Lynch attempted to submit evidence of the defendant's default in reply, a moving party "cannot meet its prima facie burden by submitting evidence for the first time in reply" (Emigrant Bank v Cohen, 205 AD3d 103, 112 [internal quotation marks omitted]; see U.S. Bank N.A. v Hammer, 192 AD3d 846, 849).
Additionally, the defendant raised triable issues of fact as to whether Merrill Lynch [*2]strictly complied with RPAPL 1303. RPAPL 1303 requires, inter alia, the party foreclosing a mortgage on residential property to provide the notice prescribed by the statute to any tenant of the property by certified mail, if the identity of the tenant is known to the foreclosing party (see id. § 1303[1][b]; [4]). Proper service of an RPAPL 1303 notice is a condition precedent to commencing a foreclosure action, and the "'foreclosing party has the burden of showing compliance therewith'" (OneWest Bank, FSB v Cook, 204 AD3d 1025, 1026, quoting First Natl. Bank of Chicago v Silver, 73 AD3d 162, 167).
Here, Merrill Lynch failed to submit any evidence that it served any tenant of the subject property with the notices required by RPAPL 1303 by certified mail, or that it was not aware of any tenant's identity. In contrast, the defendant's affidavit and the affidavit of Richard Nicholson, submitted in opposition to Merrill Lynch's motion, established that Richard Nicholson resided at the subject property, that he paid rent, and that the mortgage loan servicer was aware that he resided at the subject property. These affidavits thus raised triable issues of fact as to whether Merrill Lynch was aware of the identity of a tenant at the subject property and failed to comply with RPAPL 1303(4) by sending him the required notice by certified mail.
The defendant's remaining contentions are either without merit or not properly before this Court.
Accordingly, Merrill Lynch failed to meet its prima facie burden, and those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike her answer and affirmative defenses, and for an order of reference should have been denied.
BRATHWAITE NELSON, J.P., RIVERA, CHAMBERS and DOWLING, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482694/ | L.K. v City of New York (2022 NY Slip Op 06236)
L.K. v City of New York
2022 NY Slip Op 06236
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
JOSEPH J. MALTESE
LINDA CHRISTOPHER
JANICE A. TAYLOR, JJ.
2021-04480
(Index No. 503587/18)
[*1]L.K., etc., et al., appellants,
vCity of New York, et al., respondents.
Merson Law, PLLC, New York, NY (Sarah Cantos of counsel), for appellants.
Sylvia O. Hinds-Radix, Corporation Counsel, New York, NY (Elina Druker, Claibourne Henry, and Julie Steiner of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated December 14, 2020. The order, insofar as appealed from, denied those branches of the plaintiffs' motion which were pursuant to CPLR 3126 to strike the defendants' answer or, in the alternative, for a conditional order striking the defendants' answer.
ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the defendants' answer is granted, the answer is stricken, and the matter is remitted to the Supreme Court, Kings County, for an inquest on the issue of damages.
On the evening of May 30, 2016, the adult plaintiffs and their daughter, the infant plaintiff, were at their home in Pennsylvania when three armed men entered the house. The plaintiffs all allegedly sustained personal injuries that evening. The plaintiffs commenced this action against the defendants, alleging that one of the individuals who caused the plaintiffs' injuries had been negligently and erroneously released from the defendants' custody. The plaintiffs moved, inter alia, pursuant to CPLR 3126 to strike the defendants' answer for failing to provide discovery or, in the alternative, for a conditional order striking the defendants' answer. The Supreme Court, inter alia, denied those branches of the plaintiffs' motion. The plaintiffs appeal.
Pursuant to CPLR 3126(3), a court may impose discovery sanctions, including the striking of a pleading, where a party "refuses to obey an order for disclosure or willfully fails to disclose information which the court finds ought to have been disclosed." "The nature and degree of a penalty to be imposed under CPLR 3126 for discovery violations is addressed to the court's discretion" (Crupi v Rashid, 157 AD3d 858, 859; see Ambroise v Palmana Realty Corp., 197 AD3d 1226; Wolf v Flowers, 122 AD3d 728, 728-729). "Although public policy strongly favors that actions be resolved on the merits when possible, a court may resort to the drastic remedies of striking a pleading or precluding evidence upon a clear showing that a party's failure to comply with a disclosure order was the result of willful and contumacious conduct" (Nationstar Mtge., LLC v Jackson, 192 AD3d 813, 815; see Matter of Apostolidis, 193 AD3d 1039, 1040; Carmona v HUB Props. Trust, 186 AD3d 1485, 1487). "The willful and contumacious character of a party's conduct [*2]can be inferred from either the repeated failure to respond to demands or comply with discovery orders, without demonstrating a reasonable excuse for these failures, or the failure to comply with court-ordered discovery over an extended period of time" (Wolf v Flowers, 122 AD3d at 729; see Ambroise v Palmana Realty Corp., 197 AD3d at 1226; Apladenaki v Greenpoint Mtge. Funding, Inc., 117 AD3d 976, 977; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 210).
Here, the Supreme Court improvidently exercised its discretion in denying that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to strike the defendants' answer. The defendants' willful and contumacious conduct can be inferred from their repeated failures, over an extended period of time, to comply with the plaintiffs' discovery demands and the court's discovery orders without an adequate excuse (see Ewa v City of New York, 186 AD3d 1195, 1196; Schiller v Sunharbor Acquisition I, LLC, 152 AD3d 812, 813-814; Lucas v Stam, 147 AD3d 921, 925-926; Byam v City of New York, 68 AD3d 798, 801; Maiorino v City of New York, 39 AD3d 601, 602). In opposition, the defendants failed to provide a reasonable excuse for their failures to comply (see Montgomery v City of New York, 296 AD2d 386; Espinal v City of New York, 264 AD2d 806).
In light of our determination, the issue of whether the Supreme Court properly denied that branch of the plaintiffs' motion which was for a conditional order striking the defendants' answer is academic.
DUFFY, J.P., MALTESE, CHRISTOPHER and TAYLOR, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482677/ | Neosel Family Trust v Neosel (2022 NY Slip Op 06253)
Neosel Family Trust v Neosel
2022 NY Slip Op 06253
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOSEPH J. MALTESE
PAUL WOOTEN
LARA J. GENOVESI, JJ.
2019-14240
(Index No. 700939/18)
[*1]Neosel Family Trust, etc., respondent,
vMartin Neosel, appellant.
Martin Neosel, Auburndale, NY, appellant pro se.
Drucker & Mattia, PLLC, Jackson Heights, NY (Nicholas J. Mattia of counsel), for respondent.
DECISION & ORDER
In an action for ejectment, the defendant appeals from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered December 2, 2019. The order denied the defendant's motion pursuant to CPLR 3211(a)(3) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
This is a dispute between two siblings over residential property located in Queens. On November 12, 2010, Bridget Neosel executed a power of attorney appointing Mary Caponi, Neosel's daughter, as Neosel's attorney-in-fact. In 2015, Caponi, as attorney-in-fact for Neosel, created the Neosel Family Trust (hereinafter the trust) and appointed herself as the trustee. Caponi, as attorney-in-fact for Neosel, then conveyed the property to the trust. Shortly thereafter, Neosel died. The defendant, Neosel's son, has resided at the property since 1991.
In January 2018, Caponi, as trustee of the trust, commenced this action to eject the defendant from the property so that a sale of the property could proceed. In his answer, the defendant alleged that the power of attorney appointing Caponi as Neosel's attorney-in-fact was invalid and, therefore, the trust, which was created by Caponi as attorney-in-fact for Neosel, was also invalid.
In August 2018, the defendant moved for summary judgment dismissing the complaint, arguing that the power of attorney was invalid. Thereafter, on November 8, 2018, the parties executed a stipulation settling the action, whereby the defendant withdrew his motion for summary judgment. The stipulation required the parties to cooperate in selling the property and to divide the net proceeds equally between them. The stipulation was so-ordered by the Supreme Court.
Thereafter, the defendant moved to pursuant to CPLR 3211(a)(3) to dismiss the complaint, arguing that Caponi, as trustee, lacked the capacity to sue because the power of attorney was invalid and, therefore, the trust was invalid. The Supreme Court denied the motion on the ground that the stipulation dated November 8, 2018, was binding on the parties. The defendant appeals.
"Stipulations of settlement are favored by the courts and not lightly cast aside" (Hallock v State of New York, 64 NY2d 224, 230). "[O]nly where there is cause sufficient to invalidate a contract, such as fraud, collusion, mistake, or accident, will a party be relieved from the consequences of a stipulation made during litigation. It was the [defendant], as the party seeking to set aside the stipulation, who had the burden of showing that the agreement was the result of fraud, duress, or overreaching, or that its terms were unconscionable" (Chae Shin Oh v Jeannot, 160 AD3d 701, 703 [citation omitted]). The defendant did not satisfy that burden here.
The defendant's remaining contentions are without merit or not properly before this Court.
Accordingly, the Supreme Court properly denied the defendant's motion pursuant to CPLR 3211(a)(3) to dismiss the complaint.
DILLON, J.P., MALTESE, WOOTEN and GENOVESI, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482682/ | Matter of Ostler v New York State Dept. of Health (2022 NY Slip Op 06250)
Matter of Ostler v New York State Dept. of Health
2022 NY Slip Op 06250
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
JOSEPH A. ZAYAS
WILLIAM G. FORD
JANICE A. TAYLOR, JJ.
2020-05858
(Index No. 1044/19, 31834/20)
[*1]In the Matter of Tasha Ostler, etc., et al., petitioners,
vNew York State Department of Health, et al., respondents.
Louis J. Maione, New York, NY, for petitioners.
Letitia James, Attorney General, New York, NY (Anisha S. Dasgupta, Amit R. Vora, and Elizabeth Brody of counsel), for respondents.
DECISION & JUDGMENT
Proceeding pursuant to CPLR article 78 to review four determinations of the New York State Department of Health dated April 1, 2019, April 4, 2019, April 10, 2019, and April 12, 2019, respectively, which, after separate fair hearings before an administrative law judge, denied the petitioners' claims for Medicaid reimbursement for certain out-of-pocket medical and transportation expenses on behalf of themselves and their children, and in the nature of mandamus, inter alia, to compel the respondent New York State Department of Health to reimburse the petitioners for these expenses.
ADJUDGED that the determinations are confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.
The petitioners and their children are Medicaid recipients. During the relevant time period, the petitioners submitted to the respondent New York State Department of Health (hereinafter DOH) and the Rockland County Department of Social Services (hereinafter DSS) various claims for direct Medicaid reimbursement of various out-of-pocket medical and transportation expenses they incurred on behalf of themselves and their children. The reimbursement claims were either denied outright or granted below the requested full amounts, leading the petitioners to administratively appeal the reimbursement decisions before an administrative law judge (hereinafter ALJ), culminating, as is pertinent here, in six fair hearings held pursuant to 18 NYCRR 358-5.9. Following each hearing, the ALJ upheld the DOH's determinations. The petitioners then commenced this proceeding pursuant to CPLR article 78, to review the aforementioned DOH determinations as upheld by the ALJ, and seeking, in the nature of mandamus, immediate reimbursement of all of the out-of-pocket medical expenses and Medicaid covered transportation expenses incurred on behalf of themselves and their children, from 2011 and ongoing.
The petitioners' contention that the DOH's determinations under review are arbitrary and capricious to the extent that they denied additional reimbursement for Medicaid transportation expenses is barred by the doctrine of collateral estoppel for the reasons stated in the related proceeding, Matter of Maione v Zucker (_____ AD3d _____[decided herewith]). In any event, the DOH's determinations pertaining to transportation expenses, as well as out-of-pocket medical [*2]expenses, are not arbitrary and capricious, but instead, are the product of DOH's reasonable and rational interpretations of its own regulations, advancing the DOH's goal to efficiently allocate limited governmental resources under the Medicaid program (see Matter of Wayne Ctr. for Nursing & Rehabilitation, LLC v Zucker, 197 AD3d 1409, 1416; Matter of Exclusive Ambulette Serv., Inc. v New York State Dept. of Health, 170 AD3d 721, 723; Matter of SCO Family of Servs. v New York State Dept. of Health, 149 AD3d 753, 754; Matter of Northern Metro. Residential Healthcare Facility, Inc. v Novello, 72 AD3d 1383, 1386).
Pursuant to CPLR 7803(4), when reviewing an administrative determination with respect to a claim for Medicaid reimbursement made after a fair hearing, the court must ascertain whether there is substantial evidence supporting the determination (see Matter of Dell'Olio v New York State Off. of Temporary & Disability Assistance, 166 AD3d 614; Matter of Schaffer v Zucker, 165 AD3d 1266, 1267). "Substantial evidence means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of Mangels v Zucker, 168 AD3d 1060, 1061; see Matter of Kennedy v State of New York Justice Ctr. for the Protection of People with Special Needs, 204 AD3d 670, 671-672). "The petitioner bears the burden of demonstrating eligibility" (Matter of Mangels v Zucker, 168 AD3d at 1061). Here, the DOH's determinations are supported by substantial evidence (see 18 NYCRR 358-5.9[a][1], [b]).
Accordingly, we confirm the DOH's determinations, deny the petition, and dismiss the proceeding on the merits.
BARROS, J.P., ZAYAS, FORD and TAYLOR, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482703/ | Chunyin Li v Joffe (2022 NY Slip Op 06227)
Chunyin Li v Joffe
2022 NY Slip Op 06227
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
BETSY BARROS, J.P.
REINALDO E. RIVERA
ROBERT J. MILLER
DEBORAH A. DOWLING, JJ.
2021-00334
(Index No. 708698/19)
[*1]Chunyin Li, et al., respondents,
vSandor A. Joffe, et al., appellants, et al., defendants.
Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York, NY (Samantha E. Quinn of counsel), for appellants.
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf, New York, NY (Christopher J. Donadio of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for medical malpractice, etc., the defendants Sandor A. Joffe, Kory A. Byrns, and Radiology Associates of Main Street, P.C., appeal from an order of the Supreme Court, Queens County (Peter J. O'Donoghue, J.), entered December 8, 2020. The order granted that branch of the plaintiffs' motion which was for a declaration that the defendant Sandor A. Joffe was properly served with process pursuant to CPLR 308(2) and 313, and, thereupon, in effect, denied, as academic, that branch of the plaintiffs' motion which was, in the alternative, pursuant to CPLR 306-b to extend the time to serve the supplemental summons and amended complaint upon the defendant Sandor A. Joffe by 120 additional days.
ORDERED that the appeal by the defendants Kory A. Byrns and Radiology Associates of Main Street, P.C., is dismissed, without costs or disbursements, as they are not aggrieved by the order appealed from (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144); and it is further,
ORDERED that the appeal by the defendant Sandor A. Joffe from so much of the order as, in effect, denied, as academic, that branch of the plaintiffs' motion which was pursuant to CPLR 306-b to extend the time to serve the supplemental summons and amended complaint upon him by 120 additional days is dismissed, as he is not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144); and it is further,
ORDERED that the order is reversed insofar as reviewed on the appeal by the defendant Sandor A. Joffe, on the law and in the exercise of discretion, with costs, and that branch of the plaintiffs' motion which was for a declaration that the defendant Sandor A. Joffe was properly served with process pursuant to CPLR 308(2) and 313 is denied.
The plaintiffs commenced this action against, among others, Sandor A. Joffe to recover damages for medical malpractice and loss of consortium. The plaintiffs subsequently moved for "an Order . . . [d]eclaring [the] plaintiffs' service of the Supplemental Summons and Amended Verified Complaint upon [the] defendant Sandor A. Joffe to be proper under CPLR § 313 and § [*2]308(2)." "In the alternative," the plaintiffs sought "an extension of time for service on [the] defendant Sandor A. Joffe for an additional 120 days." Joffe opposed the plaintiffs' motion, arguing, among other things, that the plaintiffs failed to file proof of service with the court in accordance with the time limitations imposed by CPLR 308(2).
In the order appealed from, the Supreme Court granted that branch of the plaintiffs' motion which was for a declaration that Joffe was properly served with process pursuant to CPLR 308(2) and 313. The court did not acknowledge or address Joffe's argument that the plaintiffs' proof of service had not been filed with the court within the requisite time. The court recognized, but did not reach the merits of, that branch of the plaintiffs' motion which was, in the alternative, pursuant to CPLR 306-b to extend the time to serve Joffe by 120 additional days. The court, in effect, denied the alternative branch of the plaintiffs' motion on the ground that it was academic.
CPLR 308(2) authorizes "[p]ersonal service upon a natural person . . . by delivering the summons within the state to a person of suitable age and discretion at the actual place of business . . . of the person to be served and . . . by mailing the summons by first class mail to the person to be served at his or her actual place of business." CPLR 308(2) provides that "proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later."
The failure to file timely proof of service does not constitute a jurisdictional defect (see Weininger v Sassower, 204 AD2d 715, 716). Rather, "[t]he failure to file proof of service is a procedural irregularity . . . that may be cured by motion or sua sponte by the court in its discretion pursuant to CPLR 2004" (Khan v Hernandez, 122 AD3d 802, 803 [emphasis added]; see Zheleznyak v Gordon & Gordon, P.C., 175 AD3d 1360; Deb v Hayut, 171 AD3d 862, 863; Discover Bank v Eschwege, 71 AD3d 1413, 1414; Rosato v Ricciardi, 174 AD2d 937, 938; Lancaster v Kindor, 98 AD2d 300, 307, affd 65 NY2d 804).
Here, since the plaintiffs did not properly seek leave to excuse their failure to timely file proof of service, and the Supreme Court did not grant them leave to file proof of service beyond the statutory window (see CPLR 308[2]), the proof of service relating to Joffe was a nullity (see Zheleznyak v Gordon & Gordon, P.C., 175 AD3d at 1361; Deb v Hayut, 171 AD3d at 863). Under the circumstances, the court should have denied that branch of the plaintiffs' motion which was for a declaration that Joffe was properly served with process pursuant to CPLR 308(2) and 313. In light of the foregoing, it is unnecessary to determine whether service was properly effected at Joffe's "actual place of business" (CPLR 308[2]), or whether the plaintiffs' broad request for declaratory relief "constituted, in essence, an impermissible request for an advisory opinion" (U.S. Bank N.A. v McCaffery, 186 AD3d 897, 899; see Board of Educ. of Palmyra-Macedon Cent. Sch. Dist. v Flower City Glass Co., Inc., 160 AD3d 1497, 1498; Hirschfeld v Hogan, 60 AD3d 728, 729-730; Simon v Nortrax N.E., LLC, 44 AD3d 1027, 1027; see generally New York Pub. Interest Research Group v Carey, 42 NY2d 527, 531-532).
BARROS, J.P., RIVERA, MILLER and DOWLING, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482684/ | Matter of McDowell v Marshall (2022 NY Slip Op 06248)
Matter of McDowell v Marshall
2022 NY Slip Op 06248
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
ROBERT J. MILLER
WILLIAM G. FORD
HELEN VOUTSINAS, JJ.
2021-07729
2021-07731
(Docket No. V-24551-15/19B)
[*1]In the Matter of James Clayton McDowell, respondent,
vChaya Mushka Marshall, appellant.
Abrams Fensterman, LLP, White Plains, NY (Robert A. Spolzino and Lisa Colosi Florio of counsel), for appellant.
Paul Leavin, New York, NY, for respondent.
Karen P. Simmons, Brooklyn, NY (Janet Neustaetter of counsel), attorney for the child.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the mother appeals from (1) an order of the Family Court, Kings County (Kathleen C. Waterman, J.), dated October 1, 2021, and (2) an amended order of the same court dated October 13, 2021. The order and the amended order, insofar as appealed from, after a hearing, granted the father's petition to modify the custody provisions of a stipulation dated June 12, 2017, set aside the stipulation, awarded the father primary physical custody of the child and final decision-making authority, and directed the mother to seek permission from the court before filing any additional petitions, whether for custody or alleging a family offense.
ORDERED that the appeal from the order dated October 1, 2021, is dismissed, without costs or disbursements, as it was superseded by the amended order dated October 13, 2021; and it is further,
ORDERED that the amended order dated October 13, 2021, is modified, on the law, the facts, and in the exercise of discretion, by deleting the provision thereof directing the mother to seek permission from the court before filing any additional petitions, whether for custody or alleging a family offense; as so modified, the amended order dated October 13, 2021, is affirmed insofar as appealed from, without costs or disbursements, and the order dated October 1, 2021, is modified accordingly.
The parties have one child together, who was born in February 2015. The parties entered into a stipulation dated June 12, 2017, which provided for, inter alia, joint legal custody with primary residential custody to the mother. In September 2018, the mother commenced a family offense proceeding alleging that the father sexually abused the child, and at the same time, also filed a petition to modify the custody arrangement premised on a substantial change of circumstances. The family offense proceeding, asserting allegations of sexual abuse, which allegations were investigated by the New York Police Department from September 2018, and subsequently [*2]determined to be unfounded by the Administration for Children's Services, was dismissed in June 2019. By order dated June 25, 2019, the father's unsupervised visitation was resumed.
In October 2019, the mother had the child treated at an urgent care center for a rectal irritation, and reiterated the allegations of sexual abuse. When the child was examined, he engaged in a tantrum and was transported to the hospital by ambulance. This course of events caused the father to commence the instant proceeding to modify the custody arrangement so as to award him primary physical custody of the child and final decision-making authority. At the commencement of the hearing on the father's modification petition, the mother withdrew her modification petition. The Family Court, after a hearing, inter alia, granted the father's petition, set aside the stipulation dated June 12, 2017, awarded the father primary physical custody of the child and final decision-making authority, and directed the mother to seek permission from the court before filing any additional petitions, whether for custody or alleging a family offense. The mother appeals.
"'In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child'" (Silla v Silla, 200 AD3d 1091, 1092, quoting Majeed v Majeed, 194 AD3d 916, 917). "The best interests of the child must be determined by a review of the totality of the circumstances" (Matter of Walker v Sterkowicz-Walker, 203 AD3d 1165, 1167). Repeated and unfounded allegations of sexual abuse are a sufficient change of circumstances (see Matter of Honeywell v Honeywell, 39 AD3d 857). Further, where the initial custody arrangement is based upon an agreement between the parties, it is entitled to less weight than the determination by a court (see Friederwitzer v Friederwitzer, 55 NY2d 89, 94-95; Matter of Martinez v Hyatt, 86 AD3d 571; Matter of Patsy M.C. v Lorna W.C., 165 AD2d 813, 814).
The Family Court properly found that there was a change of circumstances sufficient to change the parties' custodial arrangement, based upon, inter alia, the mother's repetition of sexual abuse allegations when she sought medical treatment for the child in October 2019, after those allegations had been determined to be unfounded. Further, the evidence of a hostile relationship between the mother and the father indicated that joint decision-making was untenable, which was also a change of circumstances (see Matter of D'Amico v Corrado, 129 AD3d 718).
There was no in camera interview in this case, and no one requested one. The attorney for the child stated he did not want to present the child for an in camera interview, owing to the child's young age. In view of the child's young age, an in camera interview to ascertain the child's wishes was not required (see Bibas v Bibas, 58 AD3d 586, 588; Matter of Rudy v Mazzetti, 5 AD3d 777).
The Family Court's determination that there had been a change in circumstances requiring a transfer of primary physical custody and final decision-making authority to the father to ensure the best interests of the child has a sound and substantial basis in the record (see Matter of Arevalo v Maldonado, 204 AD3d 904).
However, the provisions of the order dated October 1, 2021, and the amended order dated October 13, 2021, directing the mother to seek permission from the court before filing any additional petitions, whether for custody or alleging a family offense, constituted an improvident exercise of discretion. Here, the mother filed one family offense petition, ultimately determined to be unfounded, and filed one related petition to modify the parties' custody arrangement. On this record, it cannot be said that the mother engaged in vexatious litigation or that her petitions were filed in bad faith (cf. Matter of McNelis v Carrington, 105 AD3d 848, 849; Scholar v Timinisky, 87 AD3d 577, 579).
The mother's remaining contentions are without merit.
CONNOLLY, J.P., MILLER, FORD and VOUTSINAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482685/ | Matter of Marszalek v Stanford (2022 NY Slip Op 06247)
Matter of Marszalek v Stanford
2022 NY Slip Op 06247
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
JOSEPH J. MALTESE
PAUL WOOTEN
LARA J. GENOVESI, JJ.
2020-09206
(Index No. 219/19)
[*1]In the Matter of Mark Marszalek, appellant,
vTina Stanford, etc., respondent.
Mark Marszalek, Otisville, NY, appellant pro se.
Letitia James, Attorney General, New York, NY (Steven C. Wu and David Lawrence III of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Board of Parole dated September 26, 2018, the petitioner appeals from an order of the Supreme Court, Dutchess County (Christi J. Acker, J.), dated October 9, 2020. The order, insofar as appealed from, upon granting that branch of the petitioner's motion which was to hold the respondent in civil contempt for failing to comply with a judgment of the same court dated January 3, 2020, imposed a fine of only $250 upon the respondent, denied that branch of the petitioner's motion which was, in effect, to annul a parole release determination dated March 9, 2020, and direct the respondent to conduct a de novo parole release interview, and denied those branches of the petitioner's separate motions which were to hold nonparties Chanwoo Lee and Elsie Segarra in civil contempt.
ORDERED that the order dated October 9, 2020, is affirmed insofar as appealed from, without costs or disbursements.
The petitioner commenced this proceeding pursuant to CPLR article 78, seeking to annul a determination of the New York State Board of Parole (hereinafter the Board) dated September 26, 2018, which denied his application to be released on parole. By judgment dated January 3, 2020, the Supreme Court, inter alia, granted the petition, finding that the Board's determination to deny the petitioner's release evinced irrationality bordering on impropriety, annulled the September 26, 2018 determination denying parole, and remitted the matter to the respondent for a de novo parole release interview and review in compliance with all applicable statutes and regulations. After being denied parole release again on March 9, 2020, the petitioner moved, among other things, to hold the respondent, Tina Stanford, the Chairperson of the Board, in civil contempt for failing to comply with the directives contained in the January 3, 2020 judgment. Therein, the petitioner also requested, in effect, that the March 9, 2020 parole release determination be annulled and the respondent be directed to conduct a de novo parole release interview. In separate motions, the petitioner moved, inter alia, to hold nonparties Chanwoo Lee and Elsie Segarra, the Commissioners of the Board responsible for the March 9, 2020 parole release determination, in civil contempt for failing to comply with the directives contained in the January 3, 2020 judgment. In an order dated October 9, 2020, the Supreme Court granted that branch of the motion which was to hold the respondent in civil contempt and imposed a fine of $250 upon her, plus costs and expenses, [*2]denied that branch of the motion which was, in effect, to annul the March 9, 2020 parole release determination and direct the respondent to conduct a de novo parole release interview, and denied those branches of the petitioner's separate motions which were to hold Lee and Segarra in civil contempt. The petitioner appeals.
The Supreme Court properly denied that branch of the petitioner's motion which was, in effect, to annul the March 9, 2020 parole release determination and direct the respondent to conduct a de novo parole release interview, as it lacked jurisdiction to do so in the context of a contempt finding (see Matter of Ferrante v Stanford, 172 AD3d 31; Matter of Banks v Stanford, 159 AD3d 134).
Contrary to the petitioner's contention, this is not a case in which separate fines may be imposed for separate acts of disobedience (see Weissman v Weissman, 131 AD3d 529; Town Bd. of Town of Southampton v R.K.B. Realty, LLC, 91 AD3d 628). The Supreme Court providently exercised its discretion in imposing a $250 fine upon the respondent, plus costs and expenses, in accordance with Judiciary Law § 773 (see Matter of Banks v Stanford, 159 AD3dat 146; Matter of Department of Hous. Preserv. & Dev. of City of N.Y. v Deka Realty Corp., 208 AD2d 37, 45).
The petitioner's remaining contentions are without merit.
DILLON, J.P., MALTESE, WOOTEN and GENOVESI, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482697/ | Gutierrez v Bactolac Pharm., Inc. (2022 NY Slip Op 06233)
Gutierrez v Bactolac Pharm., Inc.
2022 NY Slip Op 06233
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
LINDA CHRISTOPHER
DEBORAH A. DOWLING
BARRY E. WARHIT, JJ.
2019-11595
(Index No. 609612/19)
[*1]Rubia E. Gutierrez, et al., appellants,
vBactolac Pharmaceutical, Inc., respondent.
Moser Law Firm, P.C., Huntington, NY (Steven J. Moser of counsel), for appellants.
Jackson Lewis, P.C., Melville, NY (Jeffrey M. Schlossberg and William Kang of counsel), for respondent.
DECISION & ORDER
In an action, inter alia, to recover damages for alleged unpaid wages in violation of Labor Law article 19, § 650 et seq., the supporting New York State Department of Labor Regulations, 12 NYCRR part 142, and Labor Law § 191, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (William B. Rebolini, J.), dated September 23, 2019. The order granted the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the plaintiffs.
The plaintiffs commenced this action against their employer, the defendant, Bactolac Pharmaceutical, Inc., to recover damages for unpaid wages. The complaint alleged, inter alia, that the plaintiffs were not compensated for time they spent engaging in "hygienic practices" required by their employer and 21 CFR 111.10(b) to perform their work, and that they worked in excess of 40 hours per week and were not compensated for their overtime. The first cause of action, which sought recover of unpaid overtime wages, asserted violations of Labor Law article 19, § 650 et seq., and the applicable New York State Department of Labor Regulations, 12 NYCRR part 142. The second cause of action, which sought recovery of unpaid straight wages, asserted violations of Labor Law § 191.
The Supreme Court should have denied that branch of the defendant's motion which was pursuant to CPLR 3211(a)(7) to dismiss the first cause of action. Contrary to the court's determination, the pleading requirements for a cause of action alleging unpaid overtime under the relevant provisions of the New York Labor Law are not identical to those under the federal Fair Labor Standards Act (29 USC § 201 et seq.), as the federal pleading requirement of plausibility in a cause of action such as this is not an element of the analysis under CPLR 3211(a)(7).
Rather, when considering a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any [*2]cognizable legal theory (see Nonnon v City of New York, 9 NY3d 825, 827; Leon v Martinez, 84 NY2d 83, 87-88). New York's pleading standard is embodied in CPLR 3013, which provides that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." Here, the plaintiffs' allegations in support of the first cause of action, seeking unpaid overtime wages, were sufficient to state a cause of action for violations of Labor Law article 19, § 650 et seq., and the supporting New York State Department of Labor Regulations, 12 NYCRR part 142 (see CPLR 3013; Leon v Martinez, 84 NY2d at 87-88).
However, the Supreme Court properly directed dismissal of the second cause of action, which alleged violations of Labor Law § 191, as that statute pertains to frequency of pay and not unpaid wages (see id.).
The plaintiffs' remaining contentions are without merit.
DUFFY, J.P., CHRISTOPHER, DOWLING and WARHIT, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482705/ | Augustus v Negron (2022 NY Slip Op 06225)
Augustus v Negron
2022 NY Slip Op 06225
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
ROBERT J. MILLER
WILLIAM G. FORD
HELEN VOUTSINAS, JJ.
2020-03983
(Index No. 511680/16)
[*1]Justin M. Augustus, appellant,
vMichelle D. Negron, et al., respondents.
Harmon, Linder & Rogowsky (Mitchell Dranow, Sea Cliff, NY, of counsel), for appellant.
Correia King McGinnis & Liferidge, Mineola, NY (Nigeria S. Aljure of counsel), for respondents.
DECISION & ORDER
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Johnny Lee Baynes, J.), dated March 12, 2020. The order granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.
The plaintiff commenced this action, inter alia, to recover damages for personal injuries that he allegedly sustained in a motor vehicle accident on February 21, 2016. The defendants moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In an order dated March 12, 2020, the Supreme Court granted the defendants' motion. The plaintiff appeals.
The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a serious injury to the lumbar region of his spine under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d). The defendants' expert found significant limitations in the range of motion of the lumbar region of the plaintiff's spine and the expert failed to adequately explain and substantiate, with competent medical evidence, his belief that the limitations were self-imposed (see Bouzas v Schroeder, 205 AD3d 993, 993-994; Kumar v Water Auth. of Nassau, 200 AD3d 668, 668-669; McGee v Bronner, 188 AD3d 1033, 1034). Further, the defendants failed to establish, prima facie, that the alleged injury to the lumbar region of the plaintiff's spine was not caused by the accident (see Navarro v Afifi, 138 AD3d 803, 804). Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the opposing papers were sufficient to raise a triable issue of fact [*2](see Bouzas v Schroeder, 205 AD3d at 994).
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint.
CONNOLLY, J.P., MILLER, FORD and VOUTSINAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482695/ | Hudson City Sav. Bank v Ellia (2022 NY Slip Op 06235)
Hudson City Sav. Bank v Ellia
2022 NY Slip Op 06235
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
COLLEEN D. DUFFY
JOSEPH J. MALTESE
LARA J. GENOVESI, JJ.
2020-02753
2020-02755
(Index No. 601023/17)
[*1]Hudson City Savings Bank, respondent,
vAnthony Ellia, appellant, et al., defendants.
Law Office of Maggio & Meyer, PLLC, Bohemia, NY (Holly C. Meyer of counsel),
for appellant.
Akerman LLP, New York, NY (Jordan M. Smith and Eric M. Levine of counsel), for respondent.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Anthony Ellia appeals from two orders of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), both dated February 6, 2020. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Anthony Ellia, to strike that defendant's answer and affirmative defenses, and for an order of reference. The second order, insofar as appealed from, granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff.
ORDERED that the first order dated February 6, 2020, is modified, on the law, by deleting the provision thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Anthony Ellia, to strike that defendant's answer and his affirmative defenses, other than the affirmative defense alleging noncompliance with RPAPL 1304, and for an order of reference, and substituting therefor a provision denying those branches of the motion; as so modified, the first order dated February 6, 2020, is affirmed insofar as appealed from, and so much of the second order dated February 6, 2020, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Anthony Ellia, to strike that defendant's answer and affirmative defenses, other than the affirmative defense alleging noncompliance with RPAPL 1304, and for an order of reference, and appointed a referee to compute the amount due to the plaintiff is vacated; and it is further,
ORDERED that the appeal from so much of the second order dated February 6, 2020, as granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Anthony Ellia, to strike that defendant's answer and affirmative defenses, other than the affirmative defense alleging noncompliance with RPAPL 1304, and for an order of reference, and appointed a referee to compute the amount due to the plaintiff is dismissed as academic in light of our determination on the appeal from the first order dated February 6, 2020; and it is further,
ORDERED that the second order dated February 6, 2020, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendant Anthony Ellia.
In January 2017, the plaintiff commenced this action against, among others, the defendant Anthony Ellia (hereinafter the defendant) to foreclose a mortgage encumbering certain real property in Suffolk County. The defendant interposed an answer in which he asserted, inter alia, affirmative defenses alleging lack of standing and failure to comply with RPAPL 1304. Thereafter, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer and affirmative defenses, and for an order of reference. As is relevant to these appeals, in an order dated February 6, 2020, the Supreme Court granted those branches of the plaintiff's motion. In a second order of the same date, the court, inter alia, granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff.
Contrary to the defendant's contention, the plaintiff demonstrated, prima facie, that it strictly complied with RPAPL 1304 (see Homebridge Fin. Servs., Inc. v Mauras, 201 AD3d 890, 891-892; U.S. Bank Trust, N.A. v Mehl, 195 AD3d 1054, 1055-1056; U.S. Bank NA v Smith, 191 AD3d 726, 728). In opposition, the defendant failed to raise a triable issue of fact on this issue.
Nevertheless, since the plaintiff's standing to commence the foreclosure action was placed in issue by the defendant, the plaintiff was required to prove its standing to be entitled to relief against the defendant (see Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684). "'A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holder or assignee of the underlying note at the time the action is commenced'" (U.S. Bank N.A. v Bochicchio, 179 AD3d 1133, 1134-1135, quoting Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 203). In a foreclosure action such as this one, the plaintiff may demonstrate its standing by submitting evidence demonstrating that, prior to the commencement of the action, it was in possession of the note at issue endorsed in blank, or the note and a firmly affixed allonge endorsed in blank (see Nationstar Mtge., LLC v Calomarde, 201 AD3d 940, 942; US Bank Trust, N.A. v Loring, 193 AD3d 1101, 1103).
Contrary to the determination of the Supreme Court, the plaintiff failed to establish, prima facie, that it had standing to commence the action based on its annexation of the note to the summons and complaint, since the plaintiff did not demonstrate that the purported allonge, which was on a piece of paper completely separate from the note, was "so firmly affixed thereto as to become a part thereof," as required by UCC 3-202(2) (see Raymond James Bank, NA v Guzzetti, 202 AD3d 841; Nationstar Mtge., LLC v Calomarde, 201 AD3d at 942).
In light of our determination, we need not reach the parties' remaining contentions.
Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike his answer and affirmative defenses, other than the affirmative defense alleging noncompliance with RPAPL 1304, and for an order of reference.
DILLON, J.P., DUFFY, MALTESE and GENOVESI, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482681/ | Matter of Thomas (2022 NY Slip Op 06251)
Matter of Thomas
2022 NY Slip Op 06251
Decided on November 9, 2022
Appellate Division, Second Department
Per Curiam.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
HECTOR D. LASALLE, P.J.
MARK C. DILLON
COLLEEN D. DUFFY
BETSY BARROS
FRANCESCA E. CONNOLLY, JJ.
2018-11989
[*1]In the Matter of Audrey A. Thomas, admitted as Audrey A. Watson, an attorney and counselor-at-law. Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts, petitioner; Audrey A. Thomas, respondent. (Attorney Registration No. 4050548)
DISCIPLINARY PROCEEDING instituted by the Grievance Committee for the Second, Eleventh, and Thirteenth Judicial Districts. The Grievance Committee commenced a disciplinary proceeding pursuant to 22 NYCRR 1240.8 against the respondent by serving and filing a notice of petition and a verified petition, both dated October 9, 2018, and the respondent served and filed an answer dated December 6, 2018. Subsequently, the Grievance Committee submitted a statement of disputed and undisputed facts dated January 3, 2019, which the respondent did not challenge. By decision and order on application of this Court dated March 1, 2019, the matter was referred to Roger Bennet Adler, as Special Referee, to hear and report. The respondent was admitted to the Bar at a term of the Appellate Division of the Supreme Court in the Second Judicial Department on September 18, 2002, under the name Audrey A. Watson.
Diana Maxfield Kearse, Brooklyn, NY, for petitioner.
The Law Offices of Wynton Sharpe, P.C., Brooklyn, NY, for respondent.
PER CURIAM.
OPINION & ORDER
The Grievance Committee served the respondent with a verified petition dated October 9, 2018, containing three charges of professional misconduct. The respondent served and filed an answer dated December 6, 2018. Subsequently, the Grievance Committee submitted a statement of disputed and undisputed facts dated January 3, 2019, which the respondent did not challenge. By decision and order on application of this Court dated March 1, 2019, the matter was referred to Roger Bennet Adler, as Special Referee, to hear and report. Following a prehearing conference held on March 27, 2019, and a hearing spanning 15 separate dates between July 12, 2019, and December 10, 2020, the Special Referee filed a report dated April 21, 2021, in which he sustained all three charges. The Grievance Committee now moves to confirm the Special Referee's report and impose such discipline upon the respondent as the Court deems just and proper. The respondent moves to disaffirm the Special Referee's report and requests that this matter be remitted for further proceedings before a newly appointed Special Referee, or alternatively, that she be granted leave to supplement the record, or in view of the mitigating circumstances presented, a sanction no greater than a public censure be imposed.The Petition
Charge one alleges that the respondent misappropriated funds entrusted to her as a [*2]fiduciary incident to her practice of law, in violation of rule 1.15(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) as follows:
The respondent was retained by Rhea Murray to represent her in the sale of real property located at 456 Madison Street, Brooklyn (hereinafter the Madison Street property). On May 15, 2013, the respondent deposited a down payment in the amount of $50,000, received from the buyer of the Madison Street property, into an IOLA account that she maintained at Bank of America, account number ending in 5589, entitled, "New York IOLA Trust Accounts Audrey A. Thomas Atty at Law Trtee" (hereinafter the BOA escrow account). The balance in the BOA escrow account before the deposit of the down payment was $25, which was the respondent's personal funds.
Pursuant to a rider to the contract of sale, the buyer authorized the release of $25,000 from the down payment to Murray, and $4,500 to the respondent to commence and finalize eviction proceedings against tenants of the Madison Street property. On May 23, 2013, the respondent withdrew the sum of $29,500 from the BOA escrow account. From the $29,500 withdrawn, the respondent paid Murray the sum of $23,000 via a cashier's check from Bank of America, and she kept $6,500 ($2,000 more than what was authorized in the rider).
Before the closing, the respondent made four cash withdrawals from the BOA escrow account in June 2013, totaling $20,500. As a result of those cash withdrawals, by the close of business on June 21, 2013, the BOA escrow account balance was $25, well below the $20,500 she was required to hold for this transaction.
At the closing on November 21, 2013, the respondent received a check for a portion of the sale proceeds of the Madison Street property from Seyfarth Shaw, LLP, in the amount of $480,173.47. On November 22, 2013, the respondent deposited that check into the BOA escrow account. The balance in the BOA escrow account after this deposit was $480,198.47.
Between November 22, 2013, and February 11, 2014, the respondent disbursed the sum of $102,413.94 from the BOA escrow account at the direction of Murray. During that same period, without Murray's authorization or knowledge, the respondent withdrew $85,340.10 of Murray's funds, as evidenced by the BOA escrow account bank statements.
On February 11, 2014, the respondent deposited a check for the balance of the sale proceeds of the Madison Street property from Seyfarth Shaw, LLP, in the amount of $240,000, bringing the balance in the BOA escrow account to $532,444.43.
Between February 11, 2014, and May 8, 2014, the respondent disbursed the sum of $3,620.91 from the BOA escrow account at the direction of Murray. During that same period, without Murray's authorization or knowledge, the respondent withdrew $271,181.13 (including several cash withdrawals) of Murray's funds, as evidenced by the BOA escrow account bank statements.
On May 8, 2014, the respondent closed the BOA escrow account and withdrew the balance of the Murray funds ($257,642.39) by certified check, and the next day she deposited those funds into an account at JPMorgan Chase Bank, account number ending in 1013, entitled, "Law Office of Audrey Thomas, PLLC Attorney Trust Account IOLA" (hereinafter the Chase escrow account). The Chase escrow account had a zero balance before the $257,642.39 deposit. Between May 9, 2014, and November 17, 2014, the respondent disbursed the sum of $3,620.91 from the Chase escrow account at the direction of Murray. During that same period, the respondent disbursed the sum of $253,996.48 from the Chase escrow account via electronic transfers, cash withdrawals, and checks payable to herself and various individuals and companies, without Murray's authorization or knowledge. By November 17, 2014, the balance in the Chase escrow account was $25, well below the amount the respondent should have been holding on behalf of Murray.
Charge two alleges that the respondent made 12 improper cash withdrawals from the BOA escrow account between June 7, 2013, and May 8, 2014, totaling $64,000, in violation of rule 1.15(e) of the Rules of Professional Conduct (22 NYCRR 1200.0).
Charge three alleges that the respondent failed to maintain the required bookkeeping records for the BOA escrow account and the Chase escrow account, in violation of rule 1.15(d) of the Rules of Professional Conduct (22 NYCRR 1200.0) as follows: The respondent failed to maintain a contemporaneous ledger or similar record showing the date, source, and description of each item deposited, and the date, payee, and purpose of each withdrawal or disbursement for both escrow accounts.Hearing Evidence
The respondent has admitted that she represented Murray in the sale of the Madison [*3]Street property, and that she received the proceeds of that sale. The respondent's escrow bank records confirm that she deposited the proceeds of the Madison Street property sale, in the approximate amount of $770,000, into her escrow account. Although the respondent disbursed some of the sale proceeds at the direction of Murray, the respondent's escrow bank records confirm that the remaining funds in excess of $630,000 did not remain on deposit in the respondent's escrow account. The respondent concedes that she used Murray's escrow funds to promote the respondent as an author and radio show host. The respondent claims that such use of the escrow funds was authorized by Murray, with whom she had a longstanding personal relationship, as an investment and to reimburse the respondent for legal services she claims to have rendered to Murray's family members. Breanna Rochelle Coy, the respondent's daughter, testified that she recalled the respondent getting oral authorization from Murray to use Murray's funds. As to the purported investment transaction, the respondent admits that she did not follow the ethical rules relating to engaging in financial transactions with a client, and did not reduce the authorization to a written document.
In her testimony during the hearing, Murray denied ever giving the respondent authorization to use the proceeds from the Madison Street property sale as an investment or to pay for her family's legal bills purportedly owed to the respondent. Murray testified that, before the closing of the Madison Street property, she informed the respondent that she wanted the proceeds from the sale to be distributed to pay down existing mortgages on several properties located in Brooklyn, namely (1) a 196 Buffalo Avenue property that she owned; (2) a 642 East 96th Street property that her daughter Blueth Ogunnoiki owned; and (3) a 1649 Prospect Place property that her daughter Anthia Murray owned. According to Murray, the respondent was supposed to obtain the balance on each of the mortgages for those three properties. The respondent did not carry out Murray's instructions, and the mortgages on the above three properties were not paid. Murray testified that after the closing in November 2013, the respondent never personally explained to her what had happened to her funds.
Murray's daughters, Blueth Ogunnoiki and Anthia Murray, testified that, in September 2016, they met with the respondent to discuss the whereabouts of their mother's money. During that meeting, the respondent confessed to them that she invested their mother's money in her own name. The respondent urged them not to pursue the matter further. The respondent advanced the possibility of a payment plan and promised to pay the money back. Anthia Murray testified that the respondent's payments started on April 3, 2017, and ended on September 11, 2017, totaling $31,300. At the time of the hearing, Murray had not received any more funds from the respondent.Findings and Conclusion
We find no merit to the respondent's claims in support of her request to remit the matter for further proceedings or for leave to supplement the record. Here, the respondent received substantial funds from the sale of the Madison Street property, which she deposited into her escrow account. While the respondent claims that she was authorized to use those funds, Murray testified that she did not authorize the respondent to use the proceeds from the Madison Street property sale for an investment or to pay for her family's legal bills purportedly owed to the respondent. The Special Referee found the testimony of the Grievance Committee's witnesses "to possess the indicia of truth, and reflect[ ] [a] client[ ] whose trust was betrayed," and we agree with this finding. Based upon our review of the record, we conclude that the charges are supported by a preponderance of the credible evidence (see 22 NYCRR 1240.8[b][1]; Matter of Capoccia, 59 NY2d 549). Under rule 1.15(a) of the Rules of Professional Conduct (22 NYCRR 1200.0), a lawyer who receives funds from another incident to the practice of law is a fiduciary, with the attendant higher standard of care in handling those funds. "A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior" (Matter of Galasso, 19 NY3d 688, 694 [internal quotation marks omitted]). We find that the respondent failed to honor her obligations as a fiduciary and misappropriated substantial funds entrusted to her in the Madison Street property sale.
Accordingly, the Grievance Committee's motion to confirm the Special Referee's report is granted, and the respondent's motion, inter alia, to disaffirm the Special Referee's report is denied.
In determining an appropriate measure of discipline to impose, the Court has considered, in aggravation, that the respondent misappropriated substantial funds from her client, a senior citizen; that she has failed to make full restitution to her client; the respondent's lack of [*4]remorse and acceptance of responsibility; and her disciplinary history, which consists of an admonition. In mitigation, the Court has considered the respondent's character evidence and charitable and community activities.
Under the totality of the circumstances, we conclude that the respondent's conduct warrants her disbarment.
LASALLE, P.J., DILLON, DUFFY, BARROS and CONNOLLY, JJ., concur.
ORDERED that the Grievance Committee's motion to confirm the Special Referee's report is granted, and the respondent's motion, inter alia, to disaffirm the Special Referee's report is denied; and it is further,
ORDERED that pursuant to Judiciary Law § 90, effective immediately, the respondent, Audrey A. Thomas, admitted as Audrey A. Watson, is disbarred, and her name is stricken from the roll of attorneys and counselors-at-law; and it is further,
ORDERED that the respondent, Audrey A. Thomas, admitted as Audrey A. Watson, shall promptly comply with the rules governing the conduct of disbarred or suspended attorneys (see 22 NYCRR 1240.15); and it is further,
ORDERED that pursuant to Judiciary Law § 90, effective immediately, the respondent, Audrey A. Thomas, admitted as Audrey A. Watson, shall desist and refrain from (1) practicing law in any form, either as principal or as agent, clerk, or employee of another, (2) appearing as an attorney or counselor-at-law before any court, Judge, Justice, board, commission, or other public authority, (3) giving to another an opinion as to the law or its application or any advice in relation thereto, and (4) holding herself out in any way as an attorney and counselor-at-law; and it is further,
ORDERED that if the respondent, Audrey A. Thomas, admitted as Audrey A. Watson, has been issued a secure pass by the Office of Court Administration, it shall be returned forthwith to the issuing agency, and the respondent shall certify to the same in her affidavit of compliance pursuant to 22 NYCRR 1240.15(f).
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482672/ | People v Belford (2022 NY Slip Op 06257)
People v Belford
2022 NY Slip Op 06257
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
REINALDO E. RIVERA
CHERYL E. CHAMBERS
JOSEPH A. ZAYAS, JJ.
2021-03148
(Ind. No. 451/19)
[*1]The People of the State of New York, respondent,
vNahriek Belford, appellant.
Laurette D. Mulry, Riverhead, NY (Genevieve M. Cahill of counsel), for appellant.
Raymond A. Tierney, District Attorney, Riverhead, NY (Alfred Croce and Marion Tang of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Fernando Camacho, J.), rendered March 25, 2021, convicting him of assault in the first degree, manslaughter in the second degree (two counts), and unlawful fleeing a police officer in a motor vehicle in the first degree, upon his plea of guilty, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the sentence imposed; as so modified, the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for further proceedings consistent herewith.
CPL 720.20(1) provides, in relevant part, that, upon the conviction of an eligible youth, "at the time of pronouncing sentence the court must determine whether or not the eligible youth is a youthful offender." Compliance with this statutory mandate requires that the sentencing court actually consider and make a determination of whether an eligible youth is entitled to youthful offender treatment, "even where [the] defendant has failed to ask to be treated as a youthful offender, or has purported to waive his or her right to make such a request" (People v Rudolph, 21 NY3d 497, 499; see People v Hall, 160 AD3d 896, 896).
Here, as the People correctly concede, the defendant, who entered a plea of guilty to, inter alia, assault in the first degree, was a youth eligible for youthful offender treatment (see CPL 720.10[1], [2]), but the record does not demonstrate that the County Court considered and determined whether the defendant should be afforded youthful offender status. Accordingly, the defendant's sentence must be vacated and the matter remitted to the County Court, Suffolk County, for a determination of whether the defendant should be afforded youthful offender treatment, and, thereupon, resentencing (see People v Rudolph, 21 NY3d at 503; People v Lundi, 201 AD3d 817; People v Kostyk, 186 AD3d 744, 746).
BRATHWAITE NELSON, J.P., RIVERA, CHAMBERS and ZAYAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482683/ | Matter of Melville v Motor Veh. Acc. Indem. Corp. (2022 NY Slip Op 06249)
Matter of Melville v Motor Veh. Acc. Indem. Corp.
2022 NY Slip Op 06249
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
LINDA CHRISTOPHER
DEBORAH A. DOWLING
BARRY E. WARHIT, JJ.
2020-01525
(Index No. 705389/19)
[*1]In the Matter of Cymba Melville, appellant,
vMotor Vehicle Accident Indemnification Corporation, respondent.
Shaevitz & Shaevitz, Jamaica, NY (Maryellen David of counsel), for appellant.
Jaime E. Gangemi (Kornfeld, Rew, Newman & Simeone, Suffern, NY [William S. Badura], of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to Insurance Law § 5218 for leave to commence an action against the Motor Vehicle Accident Indemnification Corporation, the petitioner appeals from an order of the Supreme Court, Queens County (Pam Jackman Brown, J.), entered January 30, 2020. The order denied the petition and, in effect, dismissed the proceeding.
ORDERED that the order is affirmed, with costs.
The petitioner allegedly was injured when a vehicle in which she was a passenger was struck by another vehicle. She filed a notice of intention to make a claim with the respondent, Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC). While testifying at an examination under oath, the petitioner identified the driver of the vehicle which struck her vehicle as an individual with whom she was acquainted. The petitioner filed a petition pursuant to Insurance Law § 5218 for leave to commence an action against MVAIC, alleging for the first time that there was a third, unidentified vehicle involved in the accident that left the scene. The Supreme Court denied the petition and, in effect, dismissed the proceeding. The petitioner appeals.
The Supreme Court did not err in denying the petition pursuant to Insurance Law § 5218 for permission to commence an action against MVAIC to recover damages for personal injuries sustained and caused by the negligence of an unknown party. MVAIC was created in 1958 to compensate innocent victims of hit-and-run motor vehicle accidents (see Matter of Acosta-Collado v Motor Veh. Acc. Indem. Corp., 103 AD3d 714). Here, although there is no dispute that the petitioner was a qualified person pursuant to Insurance Law § 5202(b), the petitioner failed to sustain her burden of demonstrating that the accident was one in which the identity of the owner and operator of the vehicle was unknown or not readily ascertainable through reasonable efforts (see Matter of Graves v MVAIC, 197 AD3d 943; Matter of Acosta-Collado v Motor Veh. Acc. Indem. Corp., 103 AD3d at 716). The petitioner's self-serving statement in her petition that there was a third unknown vehicle involved in the accident was insufficient to raise a triable issue of fact, and the court was therefore empowered to make a summary determination (see CPLR 409[b]; Matter of Mele v Motor Veh. Acc. Indem. Corp., 186 AD3d 1375; Matter of Hernandez v Motor Veh. Acc. Indem. Corp., 120 AD3d 1347).
The petitioner contends that, even if a third car was not involved in the accident, she has a valid claim against MVAIC because the vehicle that struck her vehicle was uninsured. This contention was raised for the first time in the petitioner's reply papers, and MVAIC did not have the opportunity to address this new contention in a sur-reply (see Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677). Therefore, this Court will not consider this contention (see Mora v Cammeby's Realty Corp., 106 AD3d 704).
Finally, contrary to the petitioner's contention, an October 9, 2018 letter from MVAIC's tort examiner does not constitute an admission that warrants granting the petitioner leave to commence a direct action against MVAIC.
DUFFY, J.P., CHRISTOPHER, DOWLING and WARHIT, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482700/ | Ferrezza v Das (2022 NY Slip Op 06230)
Ferrezza v Das
2022 NY Slip Op 06230
Decided on November 9, 2022
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 9, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
CHERYL E. CHAMBERS
JOSEPH J. MALTESE
HELEN VOUTSINAS, JJ.
2020-06343
(Index No. 151254/18)
[*1]Mark Ferrezza, appellant,
vPriyanka Das, defendant, JCDecaux North America, Inc., respondent.
William Pager, Brooklyn, NY, for appellant.
Malapero Prisco & Klauber, LLP, New York, NY (Robert L. Emmons of counsel), for respondent.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Richmond County (Wayne M. Ozzi, J.), dated August 13, 2020. The order granted the motion of the defendant JCDecaux North America, Inc., for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant JCDecaux North America, Inc., for summary judgment dismissing the complaint insofar as asserted against it is denied.
On the afternoon of January 2, 2018, the plaintiff allegedly tripped and fell over an empty crate in front of a newsstand located at the corner of 17th Street and 6th Avenue in Manhattan. After the accident, the plaintiff commenced this action to recover damages for personal injuries against the defendant Priyanka Das, who operated the newsstand, and the defendant JCDecaux North America, Inc. (hereinafter JCDecaux), which, inter alia, installed and owned the newsstand. JCDecaux moved for summary judgment dismissing the complaint insofar as asserted against it, contending that it did not owe a duty of care to the plaintiff, and that it did not have notice of the allegedly hazardous condition that caused his fall. The Supreme Court granted the motion, and the plaintiff appeals.
"Generally, the elements of a cause of action sounding in negligence are: (1) the existence of a duty on the defendant's part as to the plaintiff; (2) a breach of this duty; and (3) an injury to the plaintiff as a result thereof" (Stukas v Streiter, 83 AD3d 18, 23; see Pulka v Edelman, 40 NY2d 781, 782; Federico v Defoe Corp., 138 AD3d 682, 684). Here, JCDecaux asserted that it installed the subject newsstand pursuant to its contract with the New York City Department of Transportation (hereinafter the DOT), and that pursuant to the terms of its contract with the DOT, it owned the newsstand but only had a limited duty to clean and maintain it. However, in support of its motion, JCDecaux failed to submit a copy of its agreement with the DOT, and it failed to establish, prima facie, that it did not owe the plaintiff a duty of care (see Baran v Port Auth. of N.Y. & N.J., 196 AD3d 674, 675; Andriienko v Compass Group USA, Inc., 174 AD3d 558, 560; Poole v MCPJF, Inc., 127 AD3d 949). JCDecaux also failed to establish, prima facie, that it did not have constructive notice of the allegedly hazardous condition (see Schwartz v Gold Coast Rest. Corp., 139 [*2]AD3d 696; Birnbaum v New York Racing Assn., Inc., 57 AD3d 598). Since JCDecaux failed to establish its prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied its motion for summary judgment dismissing the complaint insofar as asserted against it, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
DILLON, J.P., CHAMBERS, MALTESE and VOUTSINAS, JJ., concur.
ENTER:
Maria T. Fasulo
Clerk of the Court | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482709/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
JOAN LICHTMAN, : No. 122 EAL 2022
:
Petitioner :
: Petition for Allowance of Appeal
: from the Order of the Superior Court
v. :
:
:
JONATHAN JUCKETT, MARY SCULLION, :
CAROL THOMAS, BRIGID TOMS, SERGE :
LEVIN, LINDA DONOVAN-MAGDAMO, :
CURTIS JORDAN, ELIZABETH HERSH, :
ANN RUDNICK, JOYCE SACCO, NICOLE :
SUMMERVILLE AND SANDRA VASKO, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 9th day of November, 2022, the Petition for Allowance of Appeal
and the “Application for Reconsideration Denial of IFP Petition” are DENIED. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482710/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
JOAN LICHTMAN, : No. 177 EAL 2022
:
Petitioner :
: Petition for Allowance of Appeal
: from the Order of the Superior Court
v. :
:
:
ELIZABETH HERSH, SANDRA VASKO, :
SERGE LEVIN, ANN RUDNICK, JOYCE :
SACCO, SR. MARY SCULLION, BRIGID :
TOMS, CAROL THOMAS, JONATHAN :
JUCKETT, LINDA DONOVAN-MAGDAMO, :
NICOLE SUMMERVILLE, AND CURTIS :
JORDAN, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 9th day of November, 2022, the Petition for Allowance of Appeal
and the Application to Proceed In Forma Pauperis are DENIED. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482714/ | IN THE SUPREME COURT OF PENNSYLVANIA
IN RE: : NO. 921
:
DESIGNATION OF CHAIR AND VICE- : SUPREME COURT RULES DOCKET
CHAIR OF THE CONTINUING :
JUDICIAL EDUCATION BOARD OF :
JUDGES :
ORDER
PER CURIAM
AND NOW, this 9th day of November, 2022, the Honorable Steven C. Tolliver, Sr.,
is hereby designated as Chair, and the Honorable Alice B. Dubow, is designated as Vice-
Chair, of the Continuing Judicial Education Board of Judges, commencing December 31,
2022. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482762/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ALLEN FRICK, § No. 08-21-00176-CV
Appellant, § Appeal from the
v. § 85th Judicial District Court
JONATHAN JERGINS, § of Brazos County, Texas
Appellee. § (TC# 19-003364-CV-85)
CONCURRENCE
Because the law defining scope-of-employment analysis under the Texas Torts Claim Act
is clear and well settled, I concur. See Alexander v. Walker, 435 S.W.3d 789, 790, 792 (Tex. 2014)
(holding claims for assault, conspiracy, slander, false arrest, false imprisonment, and malicious
prosecution arose from allegedly improper conduct within law enforcement officers’ scope of
employment); Bowen v. Comstock, No. 10-05-00295-CV, 2008 WL 2209722, at *2 (Tex.App.—
Waco May 28, 2008, pet. dism’d) (“If a government employee acts within the scope of his
employment in the performance of a discretionary duty and acts in good faith, he is entitled to
official immunity even though his acts are negligent, or even illegal.”) (citing cases).
However, when a plaintiff alleges—as Appellant does here—the state employee committed
criminal acts, it offends fundamental notions of due process to shield him individually from suit
and, because the TTCA does not waive immunity for intentional tort claims, effectively preclude
the lawsuit against him in his official capacity. Because there is nothing just in this result, and
given the recent related calls to reform the qualified immunity doctrine, 1 I write separately.
YVONNE T. RODRIGUEZ, Chief Justice
November 8, 2022
Before Rodriguez, C.J., Palafox, and Alley, JJ.
1
See, e.g., Kisela v. Hughes, 138 S.Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting) (“Such a one-sided approach to
qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent
effect of the Fourth Amendment.”); McCoy v. Alamu, 950 F.3d 226, 237 (5th Cir. 2020) (Costa, J., dissenting in part)
(noting the “many voices critiquing current [qualified immunity] law as insufficiently protective of constitutional
rights”), cert. granted, judgment vacated, 141 S.Ct. 1364 (2021); Jamison v. McClendon, 476 F.Supp.3d 386, 391
(S.D. Miss. 2020) (stating that qualified immunity “operates like absolute immunity”); James Craven, Jay Schweikert
& Clark Neily, How Qualified Immunity Hurts Law Enforcement, Cato Institute (October 5, 2022),
https://www.cato.org/study/how-qualified-immunity-hurts-law-enforcement; see also Katherine Mims Crocker,
Qualified Immunity, Sovereign Immunity, and Systemic Reform, 71 Duke L.J. 1701-1780 (2022).
2 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482763/ | COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ALLEN FRICK, § No. 08-21-00176-CV
Appellant, § Appeal from the
v. § 85th Judicial District Court
JONATHAN JERGINS, § of Brazos County, Texas
Appellee. § (TC# 19-003364-CV-85)
OPINION
This appeal arises from a trial court’s granting of a plea to the jurisdiction. The lawsuit
claimed that an agent employed by the Texas Alcohol and Beverage Commission (TABC)
committed libel and malicious prosecution in connection with a sting operation focused on the sale
of alcohol to underage persons at a bar. The suit was filed against the agent individually, and not
the TABC. For the following reasons, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND 1
At the time relevant here, Appellee Jonathan Jergins was an agent employed by the TABC.
He arrested Appellant Allen Frick for the criminal offense of selling alcohol to a minor, but Frick
was acquitted of that offense in an ensuing jury trial. Frick then sued Jergins. According to Frick’s
petition, on the evening of September 16, 2016, Jergins “was on duty as an undercover agent for
1
This case was transferred from our sister court in Waco and we decide it in accordance with the precedent of that
court to the extent required by TEX.R.APP.P. 41.3.
the [TABC]” and went into Frick’s place of employment, a bar in College Station, Texas. In the
sting operation, Jergins came with a female minor who would attempt to purchase alcohol.
The petition further alleges that while at the bar, Jergins ordered the minor to attempt to
purchase a beer from Frick. But Frick declined to serve her the beer when she could not produce
identification showing that she was over 21 years old. Frick asserts that he then asked the minor if
Jergins was her father, and the minor responded that he was. Frick then served the beer to Jergins,
who then handed it to the minor. Frick alleges, however, that Jergins falsely wrote in a report, and
later testified at a trial, that Frick served the beer to the minor. Frick was arrested and charged with
serving alcohol to a minor. See TEX.ALCO.BEV.CODE ANN. § 106.06. In an ensuing jury trial, a
video of the incident introduced into evidence purportedly showed—consistent with Frick’s
version of events—that Frick served Jergins the beer, who then gave it to the minor. The jury
acquitted Frick of the charged offense.
Frick then sued Jergins for malicious prosecution, libel under Chapter 73 of the Texas Civil
Practice and Remedies Code, and libel citing Article I, Section 8 of the Texas Constitution. In
response, Jergins filed an answer and motion to dismiss premised on section 101.106(f) of the
Texas Civil Practices and Remedies Code. 2 Jergins also filed a plea to the jurisdiction, arguing
that he was entitled to immunity because: (1) he was employed by TABC and working within the
scope of his duties for that agency when the cause of action arose; and (2) no statutory waiver of
sovereign immunity existed under the Texas Tort Claims Act.
2
That provision applies when a “suit is filed against an employee of a governmental unit based on conduct within the
general scope of that employee’s employment” and if it could have been brought against the governmental unit.
TEX.CIV.PRAC.& REM.CODE ANN. § 101.106(f). When applicable, the “suit against the employee shall be dismissed
unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant
on or before the 30th day after the date the motion is filed.” Id.
2
The trial court granted the plea to the jurisdiction and dismissed Frick’s lawsuit. On appeal,
Frick challenges that ruling, arguing that: (1) the suit was not barred under TEX.CIV.PRAC.&
REM.CODE ANN. § 101.106 because Frick sued Jergins individually and not as an employee of the
State of Texas; (2) section 101.106 does not apply because Jergins’ actions fell outside the scope
of his employment and did not occur as part of a TABC officer’s normal, discretionary duties of
employment; and (3) his claim was not based on a violation of the Penal Code, but only references
the Penal Code violations to highlight that Jergins was acting outside the scope of his employment.
II. APPLICABLE LAW AND STANDARD OF REVIEW
A. Pleas to the Jurisdiction
Sovereign immunity generally shields the State, its agencies, and its officials from lawsuits
unless immunity is waived by the legislature. See Travis Cent. Appraisal Dist. v. Norman, 342
S.W.3d 54, 57-58 (Tex. 2011); Tooke v. City of Mexia, 197 S.W.3d 325, 331 n.11 (Tex. 2006).
Texas recognizes two threads of immunity: (1) immunity from suit, even when the government
entity’s liability is not disputed; and (2) immunity from liability, even though the government
entity has consented to the suit. Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571
S.W.3d 738, 746 (Tex. 2019). Here, we deal with immunity from suit, which implicates a trial
court’s subject matter jurisdiction. Id. A plaintiff shoulders the burden of alleging facts establishing
that the trial court has subject matter jurisdiction over its claims, or in other words, that a
governmental defendant’s immunity from suit has been waived. See Sepulveda v. County of
El Paso, 170 S.W.3d 605, 610 (Tex.App.--El Paso 2005, pet. denied), citing Texas Assoc. of
Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex. 1993).
An employee of a governmental entity may raise immunity through a plea to the
jurisdiction, which challenges a court’s authority to hear the case. See Donohue v. Koehler, No. 04-
3
16-00190-CV, 2017 WL 943427, at *4 (Tex.App.--San Antonio Mar. 8, 2017, no pet.) (mem. op.),
citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) (“A plea to the jurisdiction
is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the
claims asserted have merit”). The plea may challenge either the adequacy of a plaintiff’s pleadings
or the existence of jurisdictional facts to support a finding of subject matter jurisdiction. Texas
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). When a plea to the
jurisdiction challenges the pleadings alone, the trial court must construe the pleadings liberally in
favor of the pleader, looking to the pleader’s intent, and taking the pleader’s allegations as true.
Id. at 226, 228. If the pleading lacks sufficient facts to demonstrate the trial court’s jurisdiction,
but does not demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency
and the plaintiff should be afforded the opportunity to amend. Dohlen v. City of San Antonio, 643
S.W.3d 387, 397-98 (Tex. 2022) (recognizing plaintiffs’ right to amend their pleadings to allege
facts supporting the elements of their claim against the defendant city). But when the pleadings
affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted
without allowing the plaintiff an opportunity to amend. Id. at 397; Texas A&M Univ. Sys. v.
Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (“[A] pleader must be given an opportunity to amend
in response to a plea to the jurisdiction only if it is possible to cure the pleading defect.”).
Whether a party has met its burden of alleging sufficient facts that demonstrate a trial
court’s subject matter jurisdiction is a question of law that we review de novo. Miranda, 133
S.W.3d at 226.
B. Waiver of Immunity under the Texas Tort Claims Act
The Texas Tort Claims Act (TTCA) provides a limited waiver of sovereign immunity.
Alexander v. Walker, 435 S.W.3d 789, 790 (Tex. 2014) (per curiam), citing TEX.CIV.PRAC.&
4
REM.CODE ANN. § 101.023. Aside from defining when immunity is waived, one of its provisions—
section 101.106—addresses whether a suit should be filed against a governmental employee or the
responsible governmental entity. Section 101.106, titled “election-of-remedies,” requires a
plaintiff to decide at the outset “whether an employee acted independently and is thus solely liable,
or acted within the general scope of his or her employment such that the governmental unit is
vicariously liable.” Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 657 (Tex. 2008).
The legislature requires the plaintiff to make this decision to “reduc[e] the resources that the
government and its employees must use in defending redundant litigation and alternative theories
of recovery.” Id. To that end, the statute compels “dismissal of government employees when suit
should have been brought against the government.” Alexander, 435 S.W.3d at 790, quoting Texas
Adjutant General’s Office v. Ngakoue, 408 S.W.3d 350, 355 (Tex. 2013).
The provision works as follows. Section 101.106(a) provides that suing the governmental
unit is “an irrevocable election” to proceed against the governmental unit “and immediately and
forever bars any suit or recovery by the plaintiff against any individual employee” for the same
matter. TEX.CIV.PRAC.& REM.CODE ANN. § 101.106(a). Section 101.106(b) addresses the
converse, making a suit against the employee an irrevocable election to pursue only the employee
and not the governmental unit. Id. § 101.106(b). But section 101.106(f) provides for a relief valve
when a suit may have been mistakenly filed against the employee, and not the governmental entity.
It permits the plaintiff to substitute in the governmental entity:
(f) If a suit is filed against an employee of a governmental unit based on conduct
within the general scope of that employee’s employment and if it could have been
brought under this chapter against the governmental unit, the suit is considered to
be against the employee in the employee’s official capacity only. On the
employee’s motion, the suit against the employee shall be dismissed unless the
plaintiff files amended pleadings dismissing the employee and naming the
governmental unit as defendant on or before the 30th day after the date the motion
is filed.
5
Id. § 101.106(f). The key to applying the statute starts with the question of whether the suit is
against an employee in an individual or official capacity. Alexander, 435 S.W.3d at 791. To answer
that question, a court must determine: (1) whether the alleged conduct was within the scope of the
employee’s employment; and (2) whether the plaintiff’s suit could have been brought under the
TTCA against the employee’s governmental employer. See id. at 791-92.
The TTCA defines “scope of employment” as “the performance for a governmental unit of
the duties of an employee’s office or employment and includes being in or about the performance
of a task lawfully assigned to an employee by competent authority.” TEX.CIV.PRAC.& REM.CODE
ANN. § 101.001(5). The Texas Supreme Court has recognized that “‘[a]n employee’s act is not
within the scope of employment when it occurs within an independent course of conduct not
intended by the employee to serve any purpose of the employer.’” Alexander, 435 S.W.3d at 792,
quoting Restatement (Third) of Agency § 7.07(2) (2006). Thus, the ultimate question for the
application of section 101.106 requires a determination as to “whether an employee acted
independently and is thus solely liable, or acted within the general scope of his or her employment
such that the governmental unit is vicariously liable.” Id. at 790, quoting Garcia, 253 S.W.3d at
657.
III. PLEA TO THE JURISDICTION
A. Jergins was acting within the scope of his employment
Frick argues that his claims were not barred by section 101.106(f) because: (1) Frick sued
Jergins individually, not the TABC; and (2) Jergins’ false accusations against Frick “were not part
of a TABC Officer’s normal, discretionary duties of employment,” which rendered Jergins’ actions
during the incident outside the scope of his employment. We disagree.
6
In Laverie v. Wetherbe, the Texas Supreme Court held that the scope-of-employment
analysis under the TTCA does not turn on an employee’s subjective state of mind. 517 S.W.3d
748, 752-53 (Tex. 2017). There, Wetherbe, a professor at a public university, sued another
professor at the same university, Laverie, in her individual capacity for defamation. Id. at 750.
Laverie moved for summary judgment contending that she made the allegedly defamatory
statements in the scope of her employment with the university, a governmental unit, and was
therefore immune from suit in her individual capacity. Id. The Texas Supreme Court upheld a
summary judgment in Laverie’s favor, recognizing that “[n]othing in the election-of-remedies
provision or the statutory definition of ‘scope of employment’ suggests subjective intent is a
necessary component of the scope-of-employment analysis.” Id. Rather, the TTCA “focuses on
the ‘performance . . . of the duties of an employee’s office or employment,’ which calls for an
objective assessment of whether the employee was doing her job when she committed an alleged
tort, not her state of mind when she was doing it.” Id. at 753, citing TEX.CIV.PRAC.& REM.CODE
ANN. § 101.001(5). The court further reasoned that to hold otherwise would depart from the scope-
of-employment analysis in respondeat superior cases, “which concerns only whether the employee
is ‘discharging the duties generally assigned to her.’” Id. at 753, quoting City of Lancaster v.
Chambers, 883 S.W.2d 650, 658 (Tex. 1994). Thus, the “fundamental” inquiry is not whether the
employee did their job “well or poorly” or “selfishly or altruistically”, but simply whether they did
their job. Id. at 755; see also Garza v. Harrison, 574 S.W.3d 389, 401 (Tex. 2019) (“[T]he
employee’s state of mind, motives, and competency are irrelevant so long as the conduct itself was
pursuant to the employee’s job responsibilities.”).
The court made a related point in Alexander v. Walker, a case in which two Harris County
peace officers were sued for common law tort claims, including slander and malicious prosecution.
7
The claims all arose from conduct incident to their arrest of the plaintiff. 435 S.W.3d at 790. In
concluding that the officers were entitled to relief under section 101.106(f), the Texas Supreme
Court wrote that the plaintiff “did not allege any independent course of conduct by the officers not
intended to serve any purpose of Harris County.” Id. at 792.
Frick’s petition alleges that Jergins’ improper conduct occurred while he was conducting
a sting operation to uncover violations of section 106.06 of the Texas Alcoholic Beverage Code.
That provision prohibits the serving of alcoholic beverages to underage persons. See
TEX.ALCO.BEV.CODE ANN. § 106.06(a) (“a person commits an offense if he . . . gives or with
criminal negligence makes available an alcoholic beverage to a minor’); id. § 106.03 (a) (“A person
commits an offense if with criminal negligence he sells an alcoholic beverage to a minor.”).
Moreover, Frick’s petition specifically alleges that Jergins was “on duty as an undercover agent
for [TABC]” during the incident. (emphasis supplied) And Jergins’ alleged conduct in conducting
a sting operation and assisting in the prosecution of the case comports with the statutory duties
required of the TABC and its employees. See TEX.ALCO.BEV.CODE ANN. § 5.31 (a), (b) (TABC
“shall inspect, supervise, and regulate every phase of the business of . . . selling . . . alcoholic
beverages” and shall “promote legal and responsible alcohol consumption”); id. § 5.33 (“The
commission shall supervise and regulate licensees and permittees and their places of business in
matters affecting the public.”); id. § 5.36 (a) (“The commission shall investigate violations of this
code and of other laws relating to alcoholic beverages, and shall cooperate in the prosecution of
offenders before any court of competent jurisdiction.”); id. § 5.14 (TABC “may commission as
many inspectors and representatives as are necessary to enforce this code” and “[e]ach
commissioned inspector and representative has all the powers of a peace officer coextensive with
the boundaries of the state”).
8
As was the case in Alexander, Frick “did not allege any independent course of conduct by
the officer[] not intended to serve any purpose” of the TABC. See Alexander, 435 S.W.3d at 792.
Rather, Frick’s pleadings explicitly state that Jergins was “on duty as an undercover agent for
[TABC]” when the incident occurred, and nothing within Frick’s pleadings suggest that Jergins’
actions fell outside the scope of his employment as a TABC agent or that he was acting to further
his own purposes or intentions. 3 Moreover, if Frick’s suit is based on Jergins’ subjective intent to
maliciously prosecute Frick or commit libel against him, we must disregard that intent and focus
solely on the objective circumstances that establish whether he was acting within the scope of his
duties during the incident. See Laverie, 517 S.W.3d at 752-53.
Thus, we agree with the trial court that Frick’s suit is based on Jergins’ conduct within the
general scope of his employment as an agent with the TABC. See Alexander, 435 S.W.3d at 792;
see also Koehler, 2017 WL 943427, at *5-6 (plea to the jurisdiction for claims for intentional torts
and violations of plaintiff’s rights under the Texas Constitution, which were allegedly committed
by officers who wrongfully arrested defendant, was properly granted under section 101.106(f)
when the plaintiff failed to allege an independent course of conduct by the officer intended to
further the officers’ own purposes, rather than those of the police department).
B. Frick’s claims could have been brought under the TTCA against TABC
The second predicate of section 101.106(f) is that the claim could have been brought under
this chapter against the governmental unit. See TEX.CIV.PRAC.& REM.CODE ANN. § 101.106(f).
Frick argues that because he could not have sued the TABC for malicious prosecution—an
intentional tort under the TTCA—section 101.106(f) does not apply to him. But he misconstrues
the section. The “if-it-could-have-been-brought” requirement does not refer to only those tort
3
Frick did not ask below, nor on appeal, for an opportunity to amend his petition, and he does not suggest any plausible
basis for how an amended pleading would place Jergins outside the course and scope of his duties as a TABC officer.
9
claims for which the Tort Claims Act waives immunity. See Franka v. Velasquez, 332 S.W.3d 367,
375 (Tex. 2011).
The TTCA waives governmental immunity in only three areas: (1) claims arising out of
the use of motor driven vehicles and equipment; (2) claims arising from a condition or use of
personal property; and (3) claims arising from a condition or use of real property. Cronen v. Ray,
No. 14-05-00788-CV, 2006 WL 2547989, at *4 (Tex.App.--Houston [14th Dist.] Sept. 5, 2006,
pet. denied) (mem. op.), citing TEX.CIV.PRAC.& REM.CODE ANN. § 101.021. And to be sure, the
TTCA does not waive immunity for claims arising from intentional torts, such as false arrest or
imprisonment. See TEX.CIV.PRAC.& REM.CODE ANN. § 101.057(2); see also Texas Dep’t of Pub.
Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (the TTCA excludes waiver of immunity for
claims for intentional torts); Cronen, 2006 WL 2547989, at *4 (same). But just because the TTCA
does not waive immunity for a specific claim does not mean that such a claim was not brought
under the TTCA. See Franka, 332 S.W.3d at 375 (“Accordingly, we hold that for section
101.106(f), suit ‘could have been brought’ under the Act against the government regardless of
whether the Act waives immunity from suit.”); see also Donohue v. Dominguez, 486 S.W.3d 50,
55 (Tex.App.--San Antonio 2016, pet. denied) (“Because the Tort Claims Act is the only, albeit
limited, avenue for common law recovery against the government, all tort theories alleged against
a governmental unit, whether it is sued alone or together with its employees, are assumed to be
under the [TTCA] for purposes of section 101.106.”), quoting Garcia, 253 S.W.3d at 659.
Frick’s claims for libel and malicious prosecution against Jergins were tort claims that
could have been asserted against the TABC, and the second prong of section 101.106(f) has been
satisfied. 4 See Cronen, 2006 WL 2547989 at *4 (trial court correctly granted plea to the
4
Frick also alleged a violation of his rights under Article I, Section 8 of the Texas Constitution. Apart from whether
this provision implies a private right of action—an issue we do not decide—any claim that could be asserted would
10
jurisdiction because plaintiff’s intentional tort claims against police officer for false arrest and false
imprisonment were barred by governmental immunity under the TTCA), citing TEX.CIV.PRAC.&
REM.CODE ANN. §§ 101.021, 101.057; see also Koehler, 2017 WL 943427, at *6 (claims against
an officer for unlawful restraint, abuse of office, and aggravated assault were tort theories that
could have been brought under the TTCA against the officer’s police department).
C. Conclusion
Because Frick’s suit against Jergins alleges conduct within the general scope of Jergins’
employment and could have been brought under the TTCA against TABC, Frick’s suit is against
Jergins in his official capacity only. Thus, Jergins was entitled to dismissal of the claims against
him in an individual capacity under section 101.106(f), and the trial court did not err by granting
the plea to the jurisdiction on this basis.
Frick’s Issues One and Two are overruled.
IV. SUIT FOR TEXAS PENAL CODE VIOLATIONS
Finally, Frick argues in Issue Three that he did not sue Jergins for violating the Texas Penal
Code, but that the violations were “alleged in order to meet his pleading burden of demonstrating
Jergins is not entitled to official immunity, because his actions are in violation of settled statutory
and legal standards, and were performed in bad faith.” We do not understand the trial court’s order
to turn on whether Frick pleaded violations of a criminal statute or not. Consequently, the issue
does not raise an independent basis to set aside the trial court’s order. Moreover, Frick cites no
authority or citations to the record in support of this argument. For that reason alone, this issue is
improperly briefed and is waived. See TEX.R.APP.P. 38.1(i) (requiring an appellant’s brief to
not exist apart from the TTCA. See Donohue v. Koehler, No. 04-16-00190-CV, 2017 WL 943427, at *7 (Tex.App.--
San Antonio Mar. 8, 2017, no pet.) (mem. op.) (plaintiff’s claims for violating rights under the Texas Constitution
were properly dismissed because they were not brought under an independent statutory waiver of immunity, and
because none of the constitutional provisions implied a private right of action apart from the TTCA).
11
contain “a clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record.”); Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.App.--El Paso 2007,
no pet.) (“Failure to cite legal authority or provide substantive analysis of the legal issue presented
results in waiver of the complaint.”).
Frick’s Issue Three is overruled.
V. CONCLUSION
We affirm the trial court’s judgment granting Jergins’ plea to the jurisdiction.
JEFF ALLEY, Justice
November 8, 2022
Before Rodriguez, C.J., Palafox, and Alley, JJ.
Rodriguez, C.J., concurring
12 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482712/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
JOAN LICHTMAN, : No. 167 EAL 2022
:
Petitioner :
: Petition for Allowance of Appeal
: from the Order of the Superior Court
v. :
:
:
ELIZABETH HERSH, SANDRA VASKO, :
SERGE LEVIN, ANN RUDNICK, JOYCE :
SACCO, MARY SCULLION, CAROL :
THOMAS, BRIGID TOMS, JONATHAN :
JUCKETT, LINDA DONOVAN-MAGDAMO, :
NICOLE SUMMERVILLE, CURTIS :
JORDAN, EDWARD FARRINGTON, :
DANIEL FEINBERG, M.D., JANEL DAVIS, :
AND GINA GENTILE, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 9th day of November, 2022, the Petition for Allowance of Appeal
and the Application for Leave to Proceed In Forma Pauperis are DENIED. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482713/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
JOAN LICHTMAN, : No. 156 EAL 2022
:
Petitioner :
: Petition for Allowance of Appeal
: from the Order of the Superior Court
v. :
:
:
ELIZABETH HERSH, SANDRA VASKO, :
SERGE LEVIN, ANN RUDNICK, JOYCE :
SACCO, MARY SCULLION, CAROL :
THOMAS, BRIGID TOMS, JONATHAN :
JUCKETT, LINDA DONOVAN-MAGDAMO, :
NICOLE SUMMERVILLE, CURTIS :
JORDAN, EDWARD FARRINGTON, :
DANIEL FEINBERG, M.D., JANEL DAVIS, :
AND GINA GENTILE, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 9th day of November, 2022, the Petition for Allowance of Appeal
and the Application for Leave to Proceed In Forma Pauperis are DENIED. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482715/ | IN THE SUPREME COURT OF PENNSYLVANIA
IN RE: : NO. 920
:
APPOINTMENT TO CONTINUING : SUPREME COURT RULES DOCKET
JUDICIAL EDUCATION BOARD OF :
JUDGES :
:
ORDER
PER CURIAM
AND NOW, this 9th day of November, 2022, the Honorable John E. Jones, III
(Retired), Cumberland County, is hereby appointed to the Continuing Judicial Education
Board of Judges for a term expiring December 31, 2023. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482708/ | IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
JOAN LICHTMAN, : No. 157 EAL 2022
:
Petitioner :
: Petition for Allowance of Appeal
: from the Order of the Superior Court
v. :
:
:
MARCEL PRATT, CRAIG STRAW AND :
ZACHARY STRASSBURGER, :
:
Respondents :
ORDER
PER CURIAM
AND NOW, this 9th day of November, 2022, the Petition for Allowance of Appeal
and the Application to Proceed In Forma Pauperis are DENIED. | 01-04-2023 | 11-09-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482722/ | 2022 IL App (2d) 210311-U
No. 2-21-0311
Order filed November 7, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in
the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) Nos. 13-CF-1207
) 13-CF-1223
)
COREYON TREMAINE BROWN, ) Honorable
) Joseph G. McGraw,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court.
Justices Hudson and Birkett concurred in the judgment.
ORDER
¶1 Held: Postconviction counsel fulfilled his duty of alleging sufficient factual detail for
defendant’s claims because defendant’s pro se petition supplied the needed factual
detail missing from some claims in counsel’s amended petition.
¶2 Defendant, Coreyon Tremaine Brown, appeals from the judgment of the circuit court of
Winnebago County dismissing his postconviction petition (725 ILCS 5/122-1 et seq. (West 2016)).
He contends that despite postconviction counsel filing a certificate per Illinois Supreme Court Rule
651(c) (eff. July 1, 2017), counsel failed to provide reasonable assistance in amending defendant’s
2022 IL App (2d) 210311-U
pro se petition. Because defendant has not rebutted the presumption of reasonable assistance
arising from the filing of the Rule 651(c) certificate, we affirm.
¶3 I. BACKGROUND
¶4 On May 22, 2013, defendant was charged in two cases, Nos. 13-CF-1207 and 13-CF-1223,
concerning incidents on April 25 and May 2, 2013. The court appointed the public defender for
defendant.
¶5 On May 19, 2014, defense counsel filed a motion to suppress statements defendant made
to the police after his arrest on May 4, 2013. However, counsel ultimately did not pursue that
motion, because the parties reached a plea agreement.
¶6 On August 15, 2014, the parties appeared for a status hearing on plea negotiations. Defense
counsel told the court that defendant intended to hire private counsel. When the court asked
defendant if counsel was correct, defendant told the court that he needed to “fire [counsel] because
of ineffective counsel as well as bullying.” Defendant explained that counsel was “trying to force
[him] to accept[ ] a plea agreement.” Defendant also stated that, when he gave counsel “different
material to work with to strengthen [defendant’s] case,” counsel “pushe[d] it back at [defendant]
and doesn’t do well.” Defendant wanted appointed counsel removed from his case but could not
afford private counsel. The court found that defendant’s complaints did not establish ineffective
assistance of counsel but, rather, a showed a difference of opinion between attorney and client.
The court set the matter for status on plea negotiations.
¶7 On August 21, 2014, defendant entered negotiated guilty pleas (1) in case No. 13-CF-1207,
to two counts of attempted first-degree murder (720 ILCS 5/8-4(a)(1), 9-1(a)(1) (West 2012)) and
two counts of aggravated animal cruelty (510 ILCS 70/3.02(a) (West 2012)), and (2) in case
No. 13-CF-1223, to one count of attempted first-degree murder (720 ILCS 5/8-4(a)(1), 9-1(a)(1)
-2-
2022 IL App (2d) 210311-U
(West 2012)) and one count of aggravated unlawful restraint (720 ILCS 5/10-3.1(a) (West 2012)).
In exchange for the guilty pleas, the State agreed to dismiss the remaining charges and to
recommend an aggregate sentence of no more than 60 years’ imprisonment.
¶8 The State provided a factual basis for each of the cases. Defense counsel agreed that, if
the jury believed the witnesses, defendant would be found guilty in each case. The trial court also
thoroughly admonished defendant as to the charges, the applicable sentencing ranges, and the
agreed sentencing cap. Defendant acknowledged that he understood the admonishments, including
the potential penalties. Defendant also stated that he had discussed the guilty pleas with counsel
and was satisfied with counsel’s representation. Defendant acknowledged that he understood the
implications of pleading guilty. He also confirmed that no one had made any threats or promises
to induce his guilty pleas and that he was entering the pleas freely and voluntarily. Defendant
acknowledged that he signed guilty-plea forms, which he reviewed beforehand with counsel. The
court accepted the guilty pleas, dismissed the remaining charges, and set the matter for sentencing.
¶9 Following a sentencing hearing, the trial court sentenced defendant in case No. 13-CF-
1207 to 12 years’ imprisonment on each of the two attempted murder convictions and 3 years’
imprisonment on each of the two aggravated animal cruelty convictions. All sentences were made
consecutive except one of the sentences for aggravated animal cruelty, which was concurrent with
the others. Thus, defendant’s aggregate sentence was 27 years.
¶ 10 In case No. 13-CF-1223, the court sentenced defendant to consecutive terms of 27 years’
imprisonment for attempted murder and 3 years for aggravated unlawful restraint, for an aggregate
sentence of 30 years. The sentences for the two cases were consecutive to each other, for an
aggregate sentence of 57 years.
-3-
2022 IL App (2d) 210311-U
¶ 11 At sentencing, the trial court admonished defendant (1) that, to appeal, he needed to file a
motion to withdraw his guilty plea and (2) that, “[i]f he wished to appeal from the sentence of the
Court, [he] must include in that motion [to withdraw the plea] a motion to reconsider sentence.”
¶ 12 On November 25, 2014, defendant moved to reconsider the sentence as excessive. He did
not challenge plea. The trial court denied that motion, and defendant did not appeal.
¶ 13 On December 31, 2015, defendant moved pro se for leave to file a late motion to withdraw
his guilty plea and vacate the judgment. Defendant attached two of his own affidavits. In the first,
dated March 2, 2015, defendant referenced several instances of “horrible representation” by trial
counsel, including counsel’s (1) advice that defendant write apology letters to the victims,
(2) refusal to consider exculpatory evidence defendant presented, (3) attempts to frighten
defendant into pleading guilty by “threaten[ing] [him] with [r]ecieving [sic] 100 years on just one
of the 2 cases” if he went to trial and was convicted, and (4) failure to file a motion to withdraw
the guilty plea as defendant directed. In the second affidavit, dated December 22, 2015, defendant
again averred that counsel failed to file a motion to withdraw the plea as defendant directed.
However, defendant also provided factual detail about his directing counsel to file the motion and
counsel’s expressed reluctance and ultimate failure to file the motion.
¶ 14 The trial court denied the motion, finding that it lacked jurisdiction. Defendant appealed.
We granted appellate counsel’s motion to withdraw, agreeing with counsel that, because the trial
court lacked jurisdiction of defendant’s motion for leave to file a late motion to withdraw his guilty
plea, we also lacked jurisdiction. Accordingly, we dismissed the appeal. See People v. Brown,
No. 2-16-0180 (2017) (unpublished summary order under Supreme Court Rule 23(c)).
¶ 15 On April 11, 2017, defendant filed a pro se postconviction petition alleging that he was
denied the effective assistance of counsel in that trial counsel (1) refused to allow defendant to
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participate in his own defense and declined to consider potentially exculpatory evidence that
defendant offered, (2) pressured defendant into accepting a “ill[-]advised” plea agreement by
“threaten[ing] defendant with receiving [sic] (100 years) on just one of two indictments if he went
to trial,” (3) failed to pursue, after filing, the motion to suppress statements, which alleged that
Rockford detectives forced defendant to make an involuntary statement without an attorney being
present, (4) failed to file a motion to suppress physical evidence, (5) encouraged defendant to send
letters of apology to the victims, when those letters were later used against defendant, (6) failed to
object when the State made an improper substantive amendment to the indictment, and
(7) misinformed defendant before sentencing that he would not be sentenced to more than 40 years
in prison, and later failed to file a motion to withdraw the guilty plea as defendant directed.
¶ 16 Defendant further claimed that (1) the trial court failed to conduct an adequate hearing
under People v. Krankel, 102 Ill. 2d 181 (1984), to examine defendant’s claim that trial counsel
pressured him into pleading guilty; (2) the trial court, rather than remove trial counsel after
defendant complained about his performance, “forced the defendant to enter into [an] ill[-]advised
involuntary part[-]negotiated part blind plea”; (3) the police lacked probable cause to arrest
defendant; (4) the trial court lacked subject matter jurisdiction; (5) the prosecutor had “close
family ties and personal relationship” with a codefendant; (6) an illegal sentencing enhancement
was applied to defendant; and (7) defendant’s 57-year sentence was a de facto life sentence, which,
because he was a young adult when he committed the offenses, violated the eighth amendment to
the United States Constitution (U.S. Const. amend. VIII) and the proportionate penalties clause of
the Illinois Constitution (Ill. Const. 1970, art. I, § 11).
¶ 17 Defendant attached to the petition copies of the March 2015 and December 2015 affidavits
he had attached to his pro se motion for leave to file a late motion to withdraw the guilty plea.
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¶ 18 The trial court advanced the petition to the second stage and appointed counsel. At a July
16, 2019, status hearing, postconviction counsel advised the trial court that he had prepared an
amended petition and sent it to defendant for review. Counsel and defendant “were at a bit of
disagreement as to all of the issues.” Therefore, “in order to move [the] case along,” counsel was
“going to recharacterize the amended petition that [he] prepared and—as a supplemental [petition]
and [would] be adopting [defendant’s] original petition.” After the court asked counsel to clarify
how he intended to proceed, counsel said:
“MR. CARTER [(POSTCONVICTION COUNSEL)]: Well, Judge, [defendant]
filed his original amended pro se petition.
THE COURT: Right.
MR. CARTER: The issues in that [pro se petition] I can, I can legitimately argue
although they weren’t—might not have been necessarily ones that I would have used. I
prepared an amended petition which I sent to him. He wanted—he is insistent on going
forward with some of the issues that he brought up in his original petition. So what I’m
going to do is I’m going to recharacterize mine as a supplemental petition if you will. I’m
going to adopt his pro se petition which is already on file and then file mine as a
supplemental along with the Rule 651(c) certificate.
THE COURT: So this supplemental, does that include what he filed or not?
MR. CARTER: Yes, some of it Judge. It also, it also addresses issues concerning
his sentencing.”
¶ 19 On February 18, 2020, postconviction counsel filed an amended petition and a certificate
under Rule 651(c). In the certificate, counsel stated that he had (1) consulted with defendant by
mail to ascertain his contentions of a constitutional violation, (2) examined the trial court file and
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report of proceedings of the guilty plea, and (3) made any amendments to the pro se petition
necessary for an adequate presentation of defendant’s contentions.
¶ 20 Counsel’s amended petition raised five claims. Claim one was that trial counsel was
ineffective for (1) spending inadequate time with defendant to review the evidence and prepare a
defense, (2) failing to consider evidence that defendant had developed to support his defense,
(3) pressuring and frightening defendant into pleading guilty, (4) insufficiently explaining the
sentencing ranges—including the minimum sentence for each offense—to enable defendant to
make an informed decision whether to plead guilty or go to trial, and (5) spending inadequate time
with defendant to prepare him for the presentence investigation and the sentencing hearing.
¶ 21 Claim two was that trial counsel was ineffective for failing to file a motion to withdraw the
guilty plea after defendant told him to do so. Defendant alleged that, “[d]ue to the [d]efendant’s
age and development, the terms of the plea were unclear.” Specifically, “[d]efendant understood
that he could be sentenced to no more than 60 years but did not know what the minimum amount
of time he could serve would be or how much actual time would be served under a maximum of
minimum sentence.” Those terms were “not made clear to the [d]efendant by [trial] counsel.”
Defendant alleged that he told trial counsel that he wanted to withdraw his guilty plea. However,
rather than file a motion to withdraw the plea, trial counsel filed a motion to reconsider the
sentence, which was not proper under Illinois Supreme Court Rule 604(d) (eff. July 1, 2017),
because defendant’s plea was negotiated. Defendant eventually filed a pro se motion to withdraw
the plea, but by then the trial court had lost jurisdiction. Thus, trial counsel deprived defendant of
his right to appeal.
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¶ 22 Claim three was that the trial court failed to make a sufficient Krankel inquiry into
defendant’s assertions that his trial counsel was ineffective for failing to spend time with him to
develop a defense and by pressuring him to plead guilty.
¶ 23 Claim four was that the trial court failed to comply with Illinois Supreme Court Rule 605(c)
(eff. Oct. 1, 2001) by not properly admonishing defendant that, because defendant’s plea was
negotiated, he could not challenge his plea or sentence on appeal without filing a motion to
withdraw the plea.
¶ 24 Claim five challenged defendant’s sentence. The claim’s heading asserted that the sentence
violated the eighth amendment and the proportionate penalties clause. The body of the claim cited
section 5-4.5-105 of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-105 (West 2018)),
which specified mitigating factors for a trial court to apply in sentencing offenders who were under
age 18 when they committed the offense. Defendant alleged that, because he was only one month
over 18 when he committed the offenses, the trial court should have applied the section 5-4.5-105
factors at sentencing.
¶ 25 Counsel included several exhibits with the amended petition, including (1) the motion to
suppress statements, (2) the motion to reconsider the sentence, and (3) defendant’s pro se motion
for leave to file a late motion to withdraw his guilty plea, together with the attached March 2015
and December 2015 affidavits from defendant. Counsel also submitted with a petition a new
affidavit from defendant, dated February 18, 2020. In this affidavit, defendant reiterated many of
the assertions from the March 2015 and December 2015 affidavits. Defendant further averred that
trial counsel “showed little interest in [his] defense,” “did not spend time with [him] to develop a
defense,” and “did not fully explain to [him] the sentencing terms of the plea.” He elaborated:
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“[The trial counsel] told me there would be a ‘sentencing cap’ of 60 years, but he never
made it clear what the minimum sentence was. I did not understand how the sentences
would run with some consecutive to each other and some be [sic] concurrent.”
¶ 26 The State moved to dismiss. At the hearing on the motion to dismiss, postconviction
counsel argued that the primary issue was the voluntariness of defendant’s guilty plea. Counsel
pointed to defendant’s affidavits in which he averred that trial counsel pressured him into pleading
guilty, failed to fully explain the possible sentences, and did not move to withdraw the guilty plea
as defendant directed. Counsel noted that he had included defendant’s pro se motion to withdraw
the guilty plea because it “set forth the issues and allegations concerning his conversations with
[trial] counsel concerning filing [a] motion [to withdraw the guilty plea].”
¶ 27 In granting the motion to dismiss the amended petition, the trial court found that the
ineffectiveness claims stated conclusions, not facts, “as it relate[d] to the strategy, as [it] relate[d]
to the motion to suppress statements, as it relate[d] to so-called other evidence.” The court then
determined that the ineffectiveness claims related to the guilty plea and sentencing had no merit,
because the court had (1) thoroughly admonished defendant regarding both the plea and the
potential sentences and (2) confirmed that defendant understood those admonishments and was
pleading guilty voluntarily. The court also found that it had conducted a proper Krankel inquiry,
complied with Rule 605(c), and sentenced defendant with due regard for his young age when he
committed the crimes. Thus, the court concluded that trial counsel was not ineffective, and that
defendant did not establish any other constitutional violations.
¶ 28 II. ANALYSIS
¶ 29 On appeal, defendant contends that postconviction counsel, despite filing a Rule 651(c)
certificate, failed to provide reasonable assistance because (1) he did not allege a sufficient factual
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basis to support the claims of ineffective assistance of trial counsel, (2) he did not properly allege
a legal basis for a motion to withdraw the guilty plea, though he alleged that trial counsel was
ineffective for failing to file such a motion, (3) he reframed defendant’s pro se claim that his
sentence violated the eighth amendment and the proportionate penalties clause into a
nonconstitutional, excessive-sentencing claim.
¶ 30 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) “provides
a remedy to a criminal defendant whose federal or state constitutional rights were substantially
violated in his original trial or sentencing hearing.” People v. Pitsonbarger, 205 Ill. 2d 444, 455
(2002). A postconviction proceeding allows inquiry only into constitutional issues that were not
and could not have been adjudicated on direct appeal. People v. Ortiz, 235 Ill. 2d 319, 328 (2009).
¶ 31 The Act establishes a three-stage process for the adjudication of a postconviction petition.
People v. English, 2013 IL 112890, ¶ 23. If a petition is not summarily dismissed at the first stage,
it advances to the second stage, where an indigent defendant can obtain appointed counsel and the
State can move to dismiss the petition. 725 ILCS 5/122-2.1(b), 122-4, 122-5 (West 2020). If the
defendant makes a substantial showing of a constitutional violation, the petition advances to the
third stage, where the trial court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2020).
¶ 32 If a trial court dismisses a petition at the second stage, we review de novo the dismissal.
People v. Pendleton, 223 Ill. 2d 458, 473 (2006). A reviewing court may affirm a second-stage
dismissal on any basis supported by the record. People v. Stoecker, 384 Ill. App. 3d 289, 292
(2008); People v. Davis, 382 Ill. App. 3d 701, 706 (2008).
¶ 33 The right to counsel in a postconviction proceeding arises under the Act and not from
constitutional protections. People v. Owens, 139 Ill. 2d 351, 364 (1990). Accordingly, a defendant
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is guaranteed only the level of assistance that the Act provides (Owens, 139 Ill. 2d at 364), which
is a reasonable level of assistance (People v. Flores, 153 Ill. 2d 264, 276 (1992)).
¶ 34 One aspect of reasonable assistance is compliance with Rule 651(c). People v. Carter, 223
Ill. App. 3d 957, 961 (1992). Rule 651(c) requires postconviction counsel to certify that he
(1) consulted with the defendant to ascertain his contentions of constitutional violations,
(2) examined the trial record, and (3) made any amendments to the pro se petition necessary to
adequately present the defendant’s claims. Ill. S. Ct. R. 651(c) (eff. July 1, 2017). “[T]he Act
cannot perform its function unless the attorney appointed to represent an indigent petitioner
ascertains the basis of his complaints, shapes those complaints into appropriate legal form, and
presents them to the court.” People v. Lesley, 2018 IL 122100, ¶ 33.
¶ 35 There are two ways in which counsel’s compliance with Rule 651(c) may be shown.
People v. Richmond, 188 Ill. 2d 376, 380 (1999). Counsel may file a certificate that he complied,
or the record as a whole may demonstrate his compliance. Richmond, 188 Ill. 2d at 380.
¶ 36 Where counsel files a certificate of compliance, there is a presumption that counsel
provided reasonable assistance. People v. Custer, 2019 IL 123339, ¶ 32. If the presumption is
triggered, the defendant has the burden of overcoming the presumption. People v. Profit, 2012 IL
App (1st) 101307, ¶ 19.
¶ 37 The allegations in a postconviction petition must contain a sufficient factual basis for each
of the claims. People v. Dixon, 2018 IL App (3d) 150630, ¶ 20. When courts assess at the second
stage whether the allegations in a petition make a substantial showing of a constitutional violation,
all well-pleaded facts in the petition and affidavits are taken as true, but nonfactual and nonspecific
assertions that merely amount to conclusions are not sufficient to require a hearing. Dixon, 2018
IL App (3d) 150630, ¶ 20 (citing People v. Rissley, 206 Ill. 2d 403, 412 (2003)). If an amended
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petition fails to allege specific facts to support its general claims, “there [is] virtually nothing for
the [trial] court to take as true at the second stage.” Dixon, 2018 IL App (3d) 150630, ¶ 20. Thus,
such a petition is not in the legal form required by Rule 651(c). Dixon, 2018 IL App (3d) 150630,
¶ 20.
¶ 38 If counsel failed to comply with Rule 651(c), the defendant is not required to show that
his claims had merit (People v. Suarez, 224 Ill. 2d 37, 47 (2007)) or that he otherwise suffered
prejudice from the lack of compliance (People v. Nitz, 2011 IL App (2d) 100031, ¶ 18). Nor is
counsel’s lack of compliance subject to harmless-error analysis. Suarez, 224 Ill. 2d at 52. Thus,
if counsel fails to comply with Rule 651(c), a remand for additional postconviction proceedings is
required. Suarez, 224 Ill. 2d at 47; see also People v. Urzua, 2021 IL App (2d) 200231, ¶ 90, leave
to appeal granted, No. 127789 (Jan. 26. 2022).
¶ 39 Here, postconviction counsel filed a certificate under Rule 651(c) stating that he consulted
with defendant by mail, examined the trial court file and the report of the guilty-plea proceedings,
and made any amendments to the petition necessary for an adequate presentation of defendant’s
claims. 1 Thus, we presume that counsel provided reasonable assistance. Defendant has the burden
1
We note that defendant has not challenged the adequacy of the certificate itself. However,
the certificate does not state that postconviction counsel examined the transcript of the sentencing
proceeding. It is well-established that Rule 651(c) requires counsel to examine as much of the
reports of proceedings as is necessary to adequately present and support the constitutional claims
raised by the defendant. People v. Turner, 187 Ill. 2d 406, 411-12 (1999). That counsel examined
the pertinent parts of the record can be shown by the certificate or the record itself. People v.
Carrizoza, 2018 IL App (3d) 160051, ¶ 13. Where the record shows that counsel complied with
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of overcoming that presumption of reasonable assistance. See Profit, 2012 IL App (1st) 101307,
¶ 19. He has failed to do so.
¶ 40 The first two claims in the amended petition alleged trial counsel’s ineffectiveness. It is
well established that sixth-amendment ineffectiveness claims are governed by the two-part test in
Strickland v. Washington, 466 U.S. 668, 687 (1984)), which our supreme court adopted in People
v. Albanese, 104 Ill. 2d 504, 526 (1984). People v. Bennett, 2017 IL App (1st) 151619, ¶ 52.
Under the Strickland test, a defendant must establish both that his counsel’s performance was
deficient and that, but for that deficient performance, the outcome of the proceeding would have
been different. Bennett, 2017 IL App (1st) 151619, ¶ 52.
¶ 41 Contrary to defendant’s contention, both of counsel’s ineffectiveness claims alleged
sufficient supporting facts.
¶ 42 Claim one of the amended petition alleged, among other things, that trial counsel was
ineffective for failing to pursue, after filing, the motion to suppress defendant’s statements.
Included with the amended petition was the motion to suppress. The motion itself included
relevant supporting facts sufficient to assess whether counsel was ineffective for not pursuing the
motion. Thus, counsel provided reasonable assistance as to this claim.
Rule 651(c), the failure to file a proper certificate is harmless error. Carrizoza, 2018 IL App (3d)
160051, ¶ 13 (citing People v. Williams, 186 Ill. 2d 55, 59 n.1 (1999)).
Here, counsel alleged in the amended petition that the trial court considered certain
evidence in aggravation and mitigation at sentencing. Counsel cited to pages of the sentencing
transcript. Thus, because the record shows that counsel examined the sentencing transcript, the
failure of the Rule 651(c) certificate to state as much was harmless.
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¶ 43 Claim one also alleged that trial counsel was ineffective for (1) spending inadequate time
with defendant to review the evidence and prepare a defense, (2) failing to consider evidence that
defendant had developed to support his defense, (3) pressuring and frightening defendant into
pleading guilty, (4) insufficiently explaining the sentencing ranges to enable defendant to make an
informed decision whether to plead guilty or go to trial, and (5) spending inadequate time with
defendant to prepare him for the presentence investigation and the sentencing hearing. Although
the amended petition did not elucidate the facts supporting each of those claims, postconviction
counsel adopted defendant’s pro se petition, which contained additional facts supporting the
ineffectiveness claims. Postconviction counsel thereby presented adequate factual bases for all
ineffectiveness claims in claim one. 2
¶ 44 Claim two of the amended petition alleged that trial counsel was ineffective for failing to
file a motion to withdraw the guilty plea as defendant directed. Claim two alleged sufficient factual
support. Postconviction counsel identified specific aspects of the plea agreement that trial counsel
allegedly did not make clear to defendant. Moreover, the December 2015 affidavit attached to the
petition supplied factual detail about defendant’s directing trial counsel to file the motion to
withdraw and counsel’s expressed reluctance and ultimate failure to file the motion. Also, the
pro se petition included factual allegations regarding the circumstances under which defendant
asked trial counsel to file a motion to withdraw and counsel failed to do so.
2
We note that the trial court stated that the ineffectiveness claims lacked factual support.
Clearly, that was erroneous considering the adoption of the pro se petition. Nonetheless, we may
affirm on any basis supported by the record. See Davis, 382 Ill. App. 3d at 706.
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¶ 45 Lastly, defendant contends that postconviction counsel transformed his constitutional
challenge to his 57-year prison sentence into a nonconstitutional, excessive-sentencing claim. See
People v. Ballinger, 53 Ill. 2d 388, 390 (1973) (an excessive-sentencing claim is not cognizable in
a postconviction proceeding). Defendant is mistaken. Defendant’s pro se petition alleged that,
because he was a young adult when he committed the offenses, both the eighth amendment to the
United States Constitution and the proportionate penalties clause of the Illinois Constitution
provided him special sentencing protections. Defendant based his argument on Miller v. Alabama,
567 U.S. 460 (2012), and other cases. Consistent with defendant’s pro se sentencing claim, the
heading for the amended petition’s sentencing claim stated that defendant’s sentence violated the
eighth amendment and the proportionate penalties clause. In the body of the claim, defendant did
not cite constitutional provisions as such, but he alleged that the trial court should have considered
the youth-related sentencing factors in section 5-4.5-105 of the Code. Those factors were drawn
from the constitutional analysis in Miller, 567 U.S. at 477-78. See People v. Buffer, 2019 IL
122327, ¶ 36. Rather than eradicate defendant’s pro se constitutional claim, postconviction
counsel enhanced it by urging consideration of the Miller-based factors in section 5-4.5-105. Thus,
postconviction counsel provided reasonable assistance regarding the sentencing claim.
¶ 46 In conclusion, defendant failed to meet his burden of overcoming the presumption arising
from the filing of a Rule 651(c) certificate that postconviction counsel provided reasonable
assistance in filing an amended postconviction petition.
¶ 47 III. CONCLUSION
¶ 48 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.
¶ 49 Affirmed.
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