Category Archives: Law: Error/Misstatement

Did the opinion rely on a material misstatement of or failure to acknowledge settled law, or an inapplicable legal principle? (“Material”: it’s reasonably likely the error(s) affected the result.)

People v. Debouver – 7/27/2016

People v. Debouver

No. B262455 (opn 7/27/2016, rhg den 8/17/2016)

Year: 2016
Errors:
Facts: Error/Omission
Law: Error/Misstatement
Issues: Omission/Unbriefed
Court: 2d District, Div 6
Errors Found/Argued: Errors not found by another court

Summary: There are assorted factual and legal errors and misstatements, as well as mischaracterization of appellant’s claims, which are outlined in the rehearing petition.  The most glaring mischaracterization of an issue (or perhaps simply a legal error) is in arguments IV and V of the rehearing petition, where the DCA treated “inhabited dwelling” and “residence” as one and the same, despite clear recognition in case law, see especially Singleton, that they have materially different meanings.

Document links:
Appellant’s Opening Brief (PDF)
Appellant’s Reply Brief (PDF)
Court of Appeal Opinion (Google Scholar)
Court of Appeal Opinion (PDF)
Petition for Rehearing (PDF)

Nidiver v. Lifehouse Health Services,LLC – 3/25/2016

Nidiver v. Lifehouse Health Services,LLC

No. C077803 (opn 3/25/2016; CSC denied publication 6/15/2016, No. S234084)

Year: 2016
Errors: Law: Error/Misstatement
Court: 3d District
Errors Found/Argued: Errors not found by another court

Summary: In an elder abuse case, the court determined that plaintiffs could not pursue direct liability claims against the parent entity and sole member of the LLC that acted as licensee of a skilled nursing facility because, even if the member engaged in tortious conduct, the member was acting within the scope of its duties as a member. The holding is contrary to statutory and case law which makes members of LLCs, like corporate shareholders, responsible for their own tortious or criminal conduct even if they are acting within the scope of their duties, though LLC members cannot be held liable solely because they are members. The court denied publication; no party petitioned for review.

Document Links:
Court of Appeal Opinion (Google Scholar)
Court of Appeal Opinion (PDF)
1st Letter opposing publication (PDF)
2nd Letter opposing publication (PDF)

People v. Nguyen – 8/13/2015

People v. Nguyen

No. S076340; 61 Cal.4th 1015 (opn 8/13/2015; rhg den 10/14/2015; petn for cert to be filed)

Year: 2015
Errors:
Facts: Error/Omission
Law: Error/Misstatement
Issues: Omission/Unbriefed
Prejudice: Selective vs. Whole-Record Review
Court: Supreme Court
Errors Found/Argued: Errors not found by another court

Summary: In this capital case decision, the California Supreme Court consistently portrayed the facts of the crimes in a misleadingly (and sometimes inaccurately) pro-prosecution manner, ignoring evidence that undermined the prosecution’s case or supported the defense version; it repeatedly ignored appellant’s legal arguments; it ignored precedent in appellant’s favor; it reached pro-prosecution conclusions about the law that were neither explained nor supported by precedent; it frequently misstated or misleadingly portrayed the facts relevant to the legal issues raised; and it relied on reasons for rejecting appellant’s claims that had not been proposed by the respondent. See, e.g.:

Facts: Error/Omission: Rhg.Pet. pp. 5-21, 34-36, 39, 46-49, 50-51, 56-57, 58

Law: Error/Misstatement: Rhg.Pet. 28-29, 56, 58-59

Issues: Omission, Mischaracterization, Unbriefed: Rhg.Pet. 21-26, 29-30, 34, 36-37, 39, 40-44, 51-52, 53-55, 56-57

Prejudice: Selective vs. Whole Record Review: Rhg.Pet. 13, 31, 34, 37-38, 44-46

Document Links:
Supreme Court Opinion (61 Cal.4th 1015; Google Scholar)
Supreme Court Opinion (PDF)
Petition for Rehearing (PDF)

People v. Sedillo – 4/8/2015

People v. Sedillo

No B248671 (opn. 4/8/2015, petn for rev pending, S226342)

Year: 2015
Errors:
Law: Error/Misstatement
Selective vs. Whole-Record Review
Court: 2d District, Div 1
Errors Found/Argued: Errors not found by another court

sedilloSummary: In a published opinion, the Court of Appeal found two trial errors and determined neither of them were prejudicial:

1. Error in admitting evidence that defendant’s phone was the subject of a court-ordered wiretap: The court agreed this was error and, without saying whether it was of constitutional dimension, found it was harmless because “defendant made sufficient statements regarding her culpability for the shootings with which she was charged to support the jury’s verdicts. The wiretaps show that defendant consistently bragged about her participation in the shooting that had taken place at Presidio’s wake.” (pp. 23-24.) In addition to stating the wrong legal standard – whether there was “sufficient evidence” to support the verdict – the court ignored: (a) that the defense’s argument at trial was that defendant was lying about having been involved in the shooting 18 years earlier; (b) that a gang expert provided testimony about why someone would lie about that; (c) the eyewitness descriptions of the getaway driver, alleged to have been defendant, were inconsistent with Sedillo; one witness, Foch, testified he saw the getaway driver and it was a male; and (d) that the jury asked for readback of Foch’s testimony on this point, showing jurors did not find defendant’s boasts to be overwhelming proof of her guilt.

2. Failure to instruct that to be liable as an aider and abettor, defendant had to form the intent to render aid before the shooting occurred: The court acknowledged this was constitutional error subject to Chapman analysis. But it found the error harmless because it was not “reasonably likely” the jury found defendant formed the intent after the shooting. (pp. 31-32.) In so doing, the court looked at only one part of the record – the fact CALJIC No. 3.01 is phrased in the “present tense,” which the court believed would have led the jury to convict defendant only if she formed the intent to render aid before the shooting. The analysis ignored: (a) that there was, in the court’s words, “skimpy evidence” of what occurred before the shooting; (b) that the jury rejected allegations defendant premeditated and deliberated, which is inconsistent with a finding she knew ahead of time that the direct perpetrator intended to commit murder (People v. Samaniego; People v. Lee); and (c) that nothing in the instructions told the jury the crimes were finished once the shooting stopped, so there is no basis to find jurors would have assumed that was the point before which Sedillo had to form the requisite intent.

The court also found numerous asserted errors would have been harmless, based on the similarly-mistaken reasoning it used for the evidentiary error described above.

Document Links:
Court of Appeal Opinion (Google Scholar)
Court of Appeal Opinion (PDF)
Petition for Rehearing (PDF)
Petition for Review (PDF)

People v. Lewis – 8/20/2014

People v. Lewis

No. E058643 (opn 8/20/2014, rev den 11/12/2014)

Year: 2014
Errors: Law: Error/Misstatement
Court: 4th District, Division 2
Errors Found/Argued: Errors not found by another court

Summary: People’s appeal from order granting relief on petition to reduce 3 Strikes term to 2 and releasing appellant due to time served. Contrary to both the substantial evidence rule and the requirement that the appellant produce an adequate record on appeal, the appellate court reversed and remanded for new hearing to see if the prosecution could produce additional evidence re possession of firearm. Specifically, the Court’s summary was: “This is plaintiff and appellant the People’s appeal from the superior court’s order granting defendant and respondent Anthony Lee Lewis’s petition for recall of sentence under Proposition 36 (Pen. Code, § 1170.126). The People argue defendant was ‘armed’ with a firearm during the commission of the commitment offense—being a felon in possession of a firearm (former § 12021, subd. (a)(1))—and thus was ineligible for resentencing. As discussed below, the record on appeal does not contain the accusatory pleading or the trial transcript, and so we cannot determine with certainty whether the conviction was based on defendant being armed with the firearm he was convicted of possessing. For this reason, we reverse and remand with directions to allow the trial court to examine the evidence adduced at trial to determine and state on the record whether the prosecution’s case was based on the theory that defendant was guilty of possession of a firearm by a felon because he had possession of a firearm that was capable of offensive or defensive use. The trial court shall then act on defendant’s resentencing petition in a manner consistent with this opinion.”

Document Links:
Opinion (Google Scholar)
Opinion (PDF)
Petition for Rehearing (PDF)
Petition for Review (PDF)

People v. Garcia – 8/31/2011

People v. Garcia

No. E051761 (opn 8/31/2011; rev den 11/22/2011)

Year: 2011
Errors:
Facts: Error/Omission
Law: Error/Misstatement
Prejudice: Selective vs. Whole-Record Review
Court: 4th District, Div 2
Errors Found/Argued: Errors found by another court

Summary: A police officer read defendant his Miranda rights, then asked defendant, “Now having [those rights] in mind, do you wish to talk to me?” Defendant answered, “No,” but the officer kept questioning defendant and ultimately obtained a confession. The Court of Appeal held that, in context, “No” didn’t mean “No”; i.e., it was ambiguous and so didn’t amount to an assertion of defendant’s Fifth Amendment right to silence. The court added that even if it was constitutional error for the jury to hear the almost four-hour recorded interrogation, the error was harmless. The CA Supreme Court denied review. But in a federal habeas proceeding, the district court and Ninth Circuit reversed, holding the Court of Appeal decision was both contrary to and an unreasonable application of established United States Supreme Court law; it was also based on an unreasonable determination of the facts. And in finding harmless error, the Court of Appeal unreasonably ignored the prosecutor’s reliance on the confession in arguing to the jury.

Document Links:
Court of Appeal Opinion  (Google Scholar)
9th Circuit Opinion (808 F.3d 771; Google Scholar)
9th Circuit Opinion (PDF)