Indemnity provisions typically refer to third party claims, but if the parties so intend, such provisions may also encompass direct claims.
Zalkind v. Ceradyne, Inc. (2011) 194 Cal.App.4th 1010, addressed this issue at length: "The terms 'indemnify' and 'indemnity' have been defined in several ways. 'Indemnity may be defined as the obligation resting on one party to make good a loss or damage another party has incurred.' " (Ibid.)
"Although indemnity generally relates to third party claims, 'this general rule does not apply if the parties to a contract use the term 'indemnity' to include direct liability as well as third party liability.' 'Each indemnity agreement is "interpreted according to the language and contents of the contract as well as the intention of the parties as indicated by the contract."' When indemnity is expressly provided by contract, the extent of the duty to indemnify must be determined from the contract itself. " (Zalkind, supra, 194 Cal.App.4th at p. 1024.)
"'The question whether an indemnity agreement covers a given case turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control. When the parties knowingly bargain for the protection at issue, the protection should be afforded. This requires an inquiry into the circumstances of the damage or injury and the language of the contract; of necessity, each case will turn on its own facts.' The indemnity provisions of a contract are to be construed under the same rules for interpreting contracts, '"with a view to determining the actual intent of the parties."' " (Zalkind, supra, 194 Cal.App.4th at pp. 1024-1025.)
The contract in Zalkind stated the "'Buyer shall indemnify, hold harmless and defend the Selling Parties . . . from and against any and all Damages that arise from or are in connection with: . . . . . . Any breach or default by the Buyer of its covenants or agreements contained in this Agreement.'" (Zalkind, supra, 194 Cal.App.4th at p. 1022.)
The contract defined "Damages" as "'(i) demands, claims, actions, suits, investigations and legal or other proceedings brought against any indemnified party. . . and (ii) all liabilities, damages, losses, . . . costs and expenses (including . . . reasonable attorneys'. . . fees . . . ) incurred by any indemnified party.'" (Id. at p. 1023.)
In Woosley v. State of California (1992) 3 Cal.4th 758, the California Supreme Court rejected the plaintiff's argument that if his class claim were disallowed, " 'notice would have to be given to each putative class member that (1) they were entitled to a refund of use taxes and license fees, and (2) the time to file a claim for refund was running from the date of notice.' "
The Supreme Court stated, "we disagree ... with plaintiff's contention that such notice is required. "Whatever merit there may be in plaintiff's argument that the time for putative class members to file claims has been tolled, we are unaware of any requirement that notice be given to persons affected by such tolling of the period in which to file a claim. The decision in American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538 required only that persons who will be included in the class be notified so that they have an opportunity to opt out of the class and thus not be bound by the resulting judgment. Neither the decision in American Pipe, supra, 414 U.S. 538, nor any other authority of which we are aware, requires that persons who are outside the class be notified of that fact." (Ibid.)
In TRW, Inc. v. Superior Court (1994) 25 Cal.App.4th 1834, a physicist employed by a defense contractor was fired after he refused to attend an internal security interview without an attorney. The physicist contended his termination violated his Fifth Amendment privilege against self-incrimination. The appellate court disagreed, finding TRW was not a government agent. (Id. at pp. 1844-1848.)
The court further found that even if TRW were an agent of the government, the physicist was not entitled to have a lawyer present because the interrogation was not custodial. (Id. at pp. 1849-1851.)
The physicist's argument that a reasonable person in his circumstances would believe the interrogation was custodial was belied by his own admissions and conduct.
He admitted knowing TRW could not arrest him and could only make allegations. Further, he spoke to Department of Defense officials without a lawyer. (Id. at p. 1852.)
In Trump v. Superior Court (1981) 118 Cal. App. 3d 411, the plaintiff sued Carlino on an agreement between the plaintiff and Carlino to purchase a business from the Trumps.
In the same action, the plaintiff also sued the Trumps on their agreement to sell the business. The Trumps cross-complained against the plaintiff for breach of the sale agreement.
In a judicial arbitration proceeding, the plaintiff received an award against Carlino, but the Trumps received an award on their cross-complaint against the plaintiff. Carlino timely elected a trial de novo, but the plaintiff did not. The court nonetheless held Carlino's trial de novo request required trial of the entire case, including the Trumps' cross-complaint against the plaintiff.
The court noted, first, that the statutes and court rules pertaining to judicial arbitration made no provision for a trial de novo as to part of an arbitration award. ( Trump, supra, 118 Cal. App. 3d 411, 415.)
Second, the court stated it would be unfair to allow a party to wait until the last possible moment and then request a trial de novo only on certain aspects of the award, when the other party had refrained from requesting a trial de novo based on its satisfaction with the award as a whole. ( Id.., at pp. 416-417.)
At the same time, the court in dictum indicated there might be situations in which a partial trial de novo would be appropriate:
"If plaintiff's claims against the various defendants were totally unrelated, both legally and factually, a better argument could be made in favor of a subsequent partial trial de novo. Here, however, where the claims emanate from a single integrated set of facts, and where resolution of a factual issue may affect several theories of liability, the resulting award is more appropriately treated as indivisible for purposes of subsequent trial." (Trump, supra, 118 Cal. App. 3d 411, 417.)
Singleton v. Bonnesen (1955) 131 Cal. App. 2d 327 affirmed judgment following an employer's demurrer where the plaintiff alleged injury to an employee within the course of employment but made no mention of workers' compensation insurance. ( Singleton v. Bonnesen, supra, 131 Cal. App. 2d at pp. 328-329.)
Importantly, the Court of Appeal found it proper to presume that the employer complied with the law requiring its purchase of workers' compensation insurance. ( Id. at p. 331.)
A plaintiff's action against an employer upon allegations of a work-related injury is barred unless the plaintiff also alleges that the employer has failed to secure the payment of workers' compensation through mandated insurance. (Ibid.)
Signal Companies, Inc. v. Harbor Ins. Co. (1980) 27 Cal.3d 359 involving a primary insurer's unsuccessful attempt to seek contribution for the defense costs from an excess insurer, recognized that:
"'The reciprocal rights and duties of several insurers who have covered the same event do not arise out of contract, for their agreements are not with each other ... . Their respective obligations flow from equitable principles designed to accomplish ultimate justice in the bearing of a specific burden. As these principles do not stem from agreement between the insurers their application is not controlled by the language of their contracts with the respective policy holders.' " (Id. at p. 369.)
In Scol Corp. v. City of Los Angeles (1970) 12 Cal.App.3d 805, Scol Corporation, a retailer of alcoholic beverages, sued the City of Los Angeles for a refund of the so-called "tipplers' tax" the city imposed on the purchase of alcohol, to be collected from consumers by the seller. (Id. at p. 808.)
Scol had paid a portion of the tax from its own funds without having collected it from its customers, and the remainder from taxes collected from customers. (Id. at pp. 808-809.)
Scol sued for a refund, claiming the tax was unconstitutional or otherwise illegal, and sought, on behalf of itself, others similarly situated and its customers, to have the tax ordinance declared unconstitutional. (Ibid.)
The appellate court held that Scol had no interest in the lawsuit or in the monies collected, because "its role was not that of a taxpayer, but that of a tax collector of this special use tax." (Id. at p. 808.)
Accordingly, the court held, "Scol had no standing to sue either for itself, all others similarly situated, or on behalf of its customers." (Ibid.)
In Professional Engineers v. Dept. of Transportation (1997) 15 Cal.4th 543, the Supreme Court held that legislation authorizing Caltrans to use private contractors on state highway projects to ensure timely retrofitting for seismic safety and ensure timely project delivery did not involve a "new state function." (Id. at pp. 552, 569, 571.)
Caltrans had always been responsible for project development of state highway projects; the new legislation did not change that but simply expanded Caltrans's power to contract with private entities to perform that work. (Id. at p. 571.)
The Supreme Court rejected Caltrans's argument that an "'"enriched"'" blend of private contracting to meet responsibilities historically discharged by Caltrans employees created a "'"new state function."'" (Ibid.)
In discussing the decisional law, the Supreme Court said of California Transportation Ventures that the legislation there authorized Caltrans to contract with private development firms to construct and operate tollways under state lease, on an experimental basis, to secure needed transportation unobtainable through public financing arrangements. (Dept. of Transportation, supra, 15 Cal.4th at p. 550.)
Although the design and construction of roads were neither new functions nor ones that state workers could not satisfactorily perform, the privatization program in the California Transportation Ventures case was an experimental one, and no state funds would be used to defray construction costs, and under these circumstances, considerations of efficiency and economy permitted an exception to the private contracting restriction. (Dept. of Transportation, supra, 15 Cal.4th at p. 550.)
In Prentice v. North American Title Guaranty Corp. (1963) 59 Cal.2d 618, the court recognized an exception to the latter rule, where the attorney fees are incurred as a result of the tort of another.
In Prentice, the plaintiffs contracted to sell their real property to the Hortons, and to subordinate the deed of trust they received to secure payment of the purchase price to a construction loan obtained by the Hortons from Blanche Neal.
The defendant acted as escrow holder; it negligently closed the transaction after which the Hortons defaulted on their obligations. The plaintiffs obtained a decree quieting their title against the claims of the Hortons and Neal.
The plaintiffs also obtained a judgment against the defendant on a cause of action for negligence; the plaintiffs recovered damages from the defendant in the amount of the attorney fees they incurred in the prosecution of their claims against the Hortons and Neal.
The court identified an exception to the general rule that attorney fees are to be paid by the party employing the attorney: "A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred. " (Id. at p. 620.)
Because the defendant's wrongful conduct had made it necessary for the plaintiffs to sue the Hortons and Neal, the attorney fees plaintiffs incurred in doing so were "a natural and proximate consequence of defendant's negligence" and were recoverable as damages flowing from the tort. (Id. at p. 621.)
In People v. Wutzke (2002) 28 Cal.4th 923, the defendant was convicted on four counts of lewd conduct (§ 288, subd. (a)) involving two children. (Wutzke, supra, 28 Cal.4th at p. 927.)
After the trial court imposed four One Strike terms for the offenses, the Court of Appeal reversed, concluding that the defendant's misconduct fell outside the then-applicable version of the One Strike law, which encompassed only lewd conduct by a perpetrator ineligible for probation. (Wutzke, supra, at pp. 927-929.)
The sole issue presented to the Supreme Court was whether the defendant was eligible for probation, for purposes of One Strike sentencing. (Wutzke, at p. 929.)
Nonetheless, in describing the One Strike sentencing scheme, the Supreme Court discussed the "multiple victim" circumstance, relying primarily on People v. DeSimone (1998) 62 Cal.App.4th 693 and former subdivision (g).
The court stated: "Persons convicted of sex crimes against multiple victims . . . 'are among the most dangerous' from a legislative standpoint. The One Strike scheme therefore contemplates a separate life term for each victim attacked on each separate occasion." (Wutzke, at pp. 930-931, quoting DeSimone, supra, 62 Cal.App.4th at p. 698 and citing former subdivision (g).)
In People v. Tenorio (1970) 3 Cal.3d 89, the Supreme Court held that a statute requiring a court to secure a prosecutor's consent to dismiss an allegation of a prior conviction violates the state Constitution's separation of powers doctrine by improperly invading the constitutional province of the judiciary:
"When the decision to prosecute has been made, the process which leads to acquittal or to sentencing is fundamentally judicial in nature. Just as the fact of prosecutorial discretion prior to charging a criminal offense does not imply prosecutorial discretion to convict without a judicial determination of guilt, discretion to forgo prosecution does not imply discretion to sentence without a judicial determination of those factors which the Legislature has never denied are within the judicial power to determine and which relate to punishment. The judicial power is compromised when a judge, who believes that a charge should be dismissed in the interests of justice, wishes to exercise the power to dismiss but finds that before he may do so he must bargain with the prosecutor. The judicial power must be independent, and a judge should never be required to pay for its exercise." ( Id. at p. 94.)
People v. Roehler (1985) 167 Cal. App.3d 353 involved a murder trial, and the prosecution conducted a number of novel scientific experiments with a dummy and a dory to prove that the victim's head injuries could not have been caused by the collision of the boy and the dory as the defendant claimed. (Id. at p. 389.)
The trial court had ruled that the engineering experts could testify about the potential force applied to the head of the dummy and the dory, but that only appropriately qualified medical experts could testify concerning the "injuries to the human heads involved." (Id. at pp. 388-389.)
The Court of Appeal affirmed, concluding that the trial court did not err in admitting experimental evidence relating to the maximum force that would be applied to the head of a child and the acceleration he would experience if the boat capsized and the child were hit by the boat while rising in the water from immersion. (Id. at pp. 389-390.)
The appellate court concluded that the trial court properly admitted the test results "bearing in mind the trial court's delineation between the engineering testimony and the medical testimony." (Id. at p. 390.) The court pointed out that it was not delivering any opinion on the emerging field of biomechanics, the application of engineering principles to biology. (Id. at p. 388.)
Moreover, the appellate court observed that "the evidence regarding the dummy was not the basis for the conclusion that the boy's head injuries were the result of premeditated murder, but this case is an example of using scientific evidence to corroborate the conclusions of . . . the medical examiner pathologist. (Id. at p. 390.)
People v. Resolute Ins. Co. (1975) 50 Cal.App.3d 433 involved a defendant who was arrested on a narcotics violation.
Bail was posted by a group of sureties. A few weeks later a grand jury indicted the defendant on approximately the same charges, plus a conspiracy charge.
The original complaint was dismissed, and the bail was ordered transferred to the indictment. However, the clerk did not notify the bail bondsmen of the transfer as expressly required by Penal Code section 1303. (Id. at p. 435.)
Ultimately the defendant failed to appear for jury trial and the bail was ordered forfeited. The surety appealed, and the Court of Appeal reversed, finding that the court's failure to comply with the specific provisions of Penal Code section 1303 exonerated the sureties and left the court without jurisdiction to forfeit the bail or enter summary judgment against them. (Id. at pp. 436-437.)
In People v. Marin (2015) 240 Cal.App.4th 1344, the Court concluded (and the respondent conceded) that the evidence was insufficient to prove that Marin's prior vehicular manslaughter conviction was a strike. Neither the elements of the offense nor the evidence presented by the prosecution, showed that he personally inflicted great bodily injury "on any person, other than an accomplice," as required under section 1192.7, subdivision (c)(8). (Id. at pp. 1348, 1350.)
The court held that under Descamps v. United States (2013) 133 S.Ct. 2276, the judicial factfinding authorized by McGee violates the Sixth Amendment right to a jury trial.
That right is not violated, however, when the factfinding is limited to the documents approved in Taylor and Shepard, i.e., indictment, jury instructions, plea colloquy, and plea agreement. (Marin, at pp. 1348-1349, 1363.)
Marin further concluded that under Descamps, the Sixth Amendment does not prohibit judicial factfinding beyond the statutory elements of the prior conviction if, in entering a guilty plea to the prior offense, the defendant waived his right to a jury trial with respect to such facts and either admitted the facts, or the court found them true with defendant's assent. (Marin, at p. 1349.)
The court reversed the true finding on the strike allegation and remanded the matter to the trial court for further proceedings. (Id. at p. 1366.)
In People v. Hurd (1998) 62 Cal.App.4th 1084, the People introduced evidence of and commented on the defendant's refusal, after Miranda warnings and a waiver, to demonstrate a shooting and to submit to a polygraph examination.
On appeal, the defendant claimed that his refusals after Miranda warnings constituted an invocation of his Fifth Amendment right to silence and that the refusals were improperly used against him at trial.
The Hurd court refused to hold that after waiving his Miranda rights, a defendant's silence in the face of police questioning was a partial invocation of the right to remain silent.
The Court explained:
"A defendant has no right to remain silent selectively. Once a defendant elects to speak after receiving a Miranda warning, his or her refusal to answer questions may be used for impeachment purposes absent any indication that such refusal is an invocation of Miranda rights. . . . A defendant cannot have it both ways. The defendant was not induced by the Miranda warning to remain silent. Having talked, what he said or omitted must be judged on its merits or demerits, and not on some artificial standard that only the part that helps him can be later referred to." (Id. at pp. 1093-1094.)
In People v. Duval (1988) 198 Cal.App.3d 1121, a high school vice principal was charged with, among other crimes, statutory rape against a minor student who became pregnant and had an abortion. (Duval, 198 Cal.App.3d at pp. 1125-1126.)
The defendant was charged with allegations that he intentionally inflicted great bodily injury under a former version of section 12022.7 requiring that the person subject to the enhancement have "the intent to inflict such injury . . . ." (Duval, 198 Cal.App.3d at p. 1131.)
The court of appeal upheld dismissal of the section 12022.7 enhancement based on the lack of specific intent on the part of the defendant that the victim become pregnant. (Id. at pp. 1133-1134.)
However, relying upon People v. Sargent (1978) 86 Cal.App.3d 148 at pages 151-152, it concluded pregnancy can constitute great bodily injury: "Pregnancy, abortion, or venereal disease constitute injury significantly and substantially beyond that necessarily present in the commission of an act of unlawful sexual intercourse." (Duval, 198 Cal.App.3d at pp. 1131-1132.)
In People v. Durbin (1966) 64 Cal. 2d 474, the surety moved to set aside forfeitures of bail because the defendant was being held in custody in Tennessee.
At the time, section 1305 provided the trial court with discretion to discharge a forfeiture of a bail bond if the defendant was unable appear in court because of "detention by civil . . . authorities."
The trial court denied the motions and the appellate court reversed on the ground that the court had not exercised its discretion.
After a remand, the trial court exercised its discretion and again denied the motions.
However, in between the time the appellate court issued its remittitur reversing the first orders denying relief and the time the trial court again denied the motions, section 1305 was amended. Where the former statute had provided the trial court with discretion to set aside a forfeiture under certain conditions, the amended statute replaced the word "may" with "shall," thereby making mandatory the granting of relief under those conditions, including "detention by civil . . . authorities."
On appeal from the trial court's second orders denying relief from forfeiture, the surety argued that the amendment to section 1305 should be applied retroactively and that it required the trial court to discharge the bail forfeitures.
The court in Durbin first recognized "the general rule of construction found in the common law and embodied in section 3 of the Penal Code . . . that when there is nothing to indicate a contrary intent in a statute it will be presumed that the Legislature intended the statute to operate prospectively and not retroactively. " (Durbin, supra, 64 Cal. 2d 474, 478.)
The court's analysis then continued as follows: "However, the amendment requiring the court to set aside forfeitures in cases where it previously had discretion to decline to do so amounts to the elimination of the power of forfeiture in these cases, and it is settled that the repeal of a civil penalty or forfeiture running either to an individual or the state, at any time before final judgment, extinguishes the right to recover the penalty. " (Ibid.)
The Durbin court also relied on the rule set forth in In re Estrada (1965) 63 Cal. 2d 740, 744-745 48 Cal. Rptr. 172, 408 P.2d 948, that ". . . if an amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final, it applies rather than the old statute in effect when the prohibited act was committed." ( Durbin, supra, 64 Cal. 2d at p. 479.)
The court found that what was said in In re Estrada regarding an amended statute lessening criminal punishment "equally applies to the reduction or elimination of civil penalties or forfeitures." (Ibid.)
The court in Durbin concluded that since the orders in the present appeal denying relief from forfeitures were not yet final, the amended version of section 1305 applied and required that the forfeitures be set aside.
In People v. Dupre (1968) 262 Cal.App.2d 56, the defendant was found in possession of recently stolen property.
The question was whether she knew at the time that the property was stolen. She gave a rational explanation for how she came by the property honestly. There was no evidence to suggest that she knew it was stolen.
Her conviction for receiving stolen property was properly reversed:
"A jury is not altogether free to reject as 'unsatisfactory' whatever explanation the defendant gives. There must be some flaw in the explanation itself, or it must be discredited by other evidence. Otherwise the jury would, in effect, be authorized to convict upon proof of possession irrespective of what explanation had been made." (Id. at p. 60.)
In People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, defendant's motion was based on the fact that a relevant witness had died before the complaint was filed. (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 902, 906-907.)
The trial court specifically found that the defendant suffered prejudice from the loss of the witness, even though the court noted "curiously that works both ways," presumably because some of that witness's testimony may have been favorable for the prosecution. (Id. at p. 912.)
Thus prejudice was established because the witness was material, not because the witness would have offered exculpatory evidence.
In Dunn-Gonzalez, the appellate court upheld the trial court's finding that a short 12-month delay was justified where "the delay in investigation and charging was caused by lack of adequate personnel to investigate and prosecute the case" and "severe cuts in personnel handling fraud cases." (Dunn-Gonzalez, supra, 47 Cal.App.4th at p. 915.)
In People v. Duckett (1984) 162 Cal. App. 3d 1115, three psychiatrists testified that the defendant, who suffered from chronic paranoid schizophrenia, could not substantially appreciate the criminality of his conduct or conform his conduct to the requirements of the law.
Despite this uncontradicted testimony, the jury found that the defendant was sane at the time he murdered the victim. (People v. Duckett, supra, 162 Cal. App. 3d at p. 1119.)
In reversing the jury's determination that the defendant was legally sane, the appellate court determined that "there were no circumstances present that would have permitted the jury to reject the expert opinion" that the defendant was insane. (Id. at p. 1123.)
In People v. Duckett (1984) a divided court held that the evidence of Duckett's insanity "was of such weight and character that a jury could not reasonably reject it" since all three testifying doctors opined that, as a result of his schizophrenia, defendant Duckett "could neither substantially appreciate the criminality of his conduct nor conform his conduct to the requirements of the law," and there were "no circumstances present that would have permitted the jury to reject the expert opinion." (Id. at pp. 1119, 1123.)
The Court found the evidence of defendant's insanity to be of such weight and character that a jury could not reasonably reject it. (Id. at p. 1120.)
In Duckett, three doctors all agreed that defendant did not appreciate the criminality of his conduct and could not conform his conduct to the requirements of the law. (Id. at pp. 1118-1119.)
The primary defense expert had interviewed defendant three times after the murder. (Id. at p. 1118.) Lay witnesses testified to changes in defendant's behavior and were unequivocal in their descriptions of defendant's increasingly erratic behavior over time. (Id. at pp. 1120-1121.)
The only evidence undermining the experts' opinions was that one of the doctors testified at the guilt phase that the defendant was competent to stand trial but then testified at the sanity phase that he was legally insane. There was no explanation for the discrepancy other than the differing standards for competency and insanity, and the appellate court ultimately found that there was no evidence supporting this doctor's guilt phase opinion. (Id. at pp. 1121-1123.)
The court concluded that the evidence of insanity was overwhelming, and that "there were no circumstances present that would have permitted the jury to reject the expert opinion." (Id. at p. 1123.)
In People v. Draut (1999) 73 Cal.App.4th 577, the defendant was guilty of fraudulently failing to report and remit sales and unemployment insurance taxes. (73 Cal. App. 4th at p. 579.)
The losses of the victims, Board of Equalization and Employment Development Department, were comprised of unpaid taxes and investigative costs and totaled approximately $ 1,157,000. (Ibid.)
The trial court reduced the amount to $ 150,000 based on the defendant's inability to pay. Draut reversed, holding the reduction was an abuse of discretion, because a criminal defendant is required under section 1202.4, subdivision (f), to make full restitution to the victim absent compelling and extraordinary reasons, and, by statute (§ 1202.4, subd. (g)), inability to pay is not a compelling or extraordinary circumstance. (Draut, supra, 73 Cal.App.4th at p. 582.)
Draut also observed that the reduced amount came nowhere near reasonably compensating the victims for the amount of their undisputed losses. (Id. at p. 583.)
The only payments at issue in Draut were for victim restitution; it makes no mention of penalties.
A court has broad discretion in fixing a restitution order, but it abuses that discretion if the order rests on a demonstrable error of law. (People v. Draut, supra, 73 Cal.App.4th at p. 581.)
In People v. Downs (1952) 114 Cal. App. 2d 758, the defendant and an accomplice entered a telephone company around midnight to commit a burglary.
While the burglars were taking money from the safe, they were interrupted by two janitors. The burglars bound the janitors, completed the theft, and left with the money from the safe. (Id. at p. 760.)
Downs rejected the defendant's argument that he could not be convicted of robbing the janitors because they were not in possession of the telephone company's money.
The court relied on Dean and held the two janitors, as servants of the company, were in constructive possession of the money in the safe for the purpose of the defendant's robbery conviction. (Id. at p. 766.)
In People v. Downey (2000) 82 Cal.App.4th 899, the defendant pleaded no contest to several misdemeanor drug-related offenses and was placed on probation in 1996. (Downey, supra, 82 Cal.App.4th at p. 904.)
In 1999, probation was revoked after defendant admitted a violation. (Id. at p. 905.)
Relying on Penal Code section 669, defendant argued the trial court never indicated whether his sentences on the misdemeanor counts from 1996 were to be served concurrently or consecutively to each other, so they must be deemed concurrent. (Downey, supra, at p. 912.)
The appellate court agreed that the trial court failed to designate whether the misdemeanor counts would be served consecutively or concurrently and concluded that absent such a designation the counts would run concurrently. (Id. at p. 915.)
Defendant was thereafter awarded additional days of presentence credit. (Ibid.)
In People v. Dowl (2013) 57 Cal.4th 1079, the California Supreme Court held that if a defendant fails to object at trial to a proffered expert's qualifications, his challenge on appeal to the expert's qualifications is forfeited, but he can still argue on appeal that the evidence, including the expert testimony, was insufficient to establish that the defendant possessed the marijuana for sale. (Id. at pp. 1088-1089.)
In that case, officers searched the defendant's car after a traffic stop and found "$21 in cash, a WD-40 can with a hidden compartment containing marijuana residue, and a total of over two ounces of marijuana: 17.2 grams in a single bag in defendant's pocket, three grams in each of 10 bags in the driver's door, and 6.5 grams in each of three bags on the backseat." (Dowl, supra, 57 Cal.4th at p. 1082.)
Defendant did not appear to be under the influence and had nothing that would be used to ingest marijuana, such as a pipe or rolling paper. He wore a belt buckle which read, "'CA$H ONLY.'" One of the arresting officers gave expert testimony that the marijuana was possessed for sale, based on the packaging and location of the marijuana, the "'CA$H ONLY'" belt buckle and the absence of pay-owe sheets, and the fact that the defendant was on probation for a prior conviction for possession of marijuana for sale. (Ibid.)
The defendant presented a defense that he possessed the marijuana for medical purposes, but the jury convicted him of unlawful transportation and possession of marijuana. (Id. at p. 1083.)
The defendant argued on appeal that the evidence was insufficient to sustain his conviction because the expert "lacked experience distinguishing between lawful possession for medical use and unlawful possession for purposes of sale." (Id. at p. 1081.)
Among other things, the Supreme Court rejected defendant's argument that the evidence, including the officer's opinion testimony, was insufficient to establish he possessed the marijuana for sale. (Dowl, supra, 57 Cal.4th at p. 1089.)
Without deciding whether it would have reached the same conclusion as the court in People v. Chakos (2007) 158 Cal.App.4th 357, the Supreme Court in Dowl distinguished both Hunt and Chakos. (Id. at pp. 1092-1094.)
The Supreme Court said the circumstances surrounding the possession in Dowl supported the officer's testimony in that case. (Id. at p. 1093.)
In People v. Dove (2004) 124 Cal.App.4th 1, the defendant was convicted of transportation of cocaine base and possession of cocaine base, a lesser included offense of the charged possession for sale of cocaine base.
The trial court, however, denied appellant Proposition 36 probation finding that he possessed and transported the cocaine base for other than personal use.
In upholding the denial, the Dove court stated:
"The acquittal on the charge of possession for sale did not bind the trial court. The acquittal simply meant the jury was not convinced beyond a reasonable doubt that the possession was for sale. . . . The trial court was free to redetermine the personal use issue based on the preponderance of the evidence. " (Id. at p. 11.)
Further, the finding that possession was not for personal use need not be stated on the record. If the court imposes a prison sentence we will imply the necessary finding and we will sustain this finding if supported by substantial evidence. (People v. Dove,supra, 124 Cal.App.4th at p. 11.) The defendant was acquitted of possessing cocaine base for sale, but was convicted of the lesser included offense of simple possession of cocaine base, as well as transportation of cocaine base. (Dove, supra, 124 Cal.App.4th at pp. 3-4.)
Despite the jury's verdict, the trial court refused to find that the possession or transportation was for personal use. (Id. at p. 4.)
Accordingly, the court ruled that defendant was ineligible for probation and treatment under Proposition 36. (Ibid.)
On appeal, the Court upheld the trial court's actions, specifically noting that "the acquittal on the charge of possession for sale did not bind the trial court." (Id. at p. 11.)
The Court explained that "the acquittal simply meant the jury was not convinced beyond a reasonable doubt that the possession was for sale." (Ibid.)
The Court held that because neither Apprendi v. New Jersey (2000) 530 U.S. 466, nor Blakely v. Washington (2004) 542 U.S. 296, applied, the trial court could make a factual finding that the defendant did not possess or transport a controlled substance for personal use, for purposes of Proposition 36 sentencing, under a preponderance of the evidence standard. (Dove, supra, 124 Cal.App.4th at pp. 4, 11.)
In other words, the trial court was "free to redetermine the personal use issue based on the preponderance of the evidence." (Id. at p. 11.)
In Dove, the Court specifically held that the trial court could make a finding, based on the preponderance of the evidence, on whether defendant's possession or transportation was for personal use for purposes of Proposition 36. (Dove, supra, 124 Cal.App.4th at p. 4.)
The Court noted that the trial court chose not to explicitly find that the drugs the defendant transported were for personal use. (Dove, supra, 124 Cal.App.4th at pp. 7, 10-11.)
The Court held that because the court's finding that the drugs were not for personal use was not required to be stated on the record, then we could imply the necessary finding. (Id. at pp. 10-11.)
The Court then concluded that "a prison sentence is not subject to reversal merely because the trial court failed to make an express finding of personal use." (Ibid.) In Dove, the Court determined that a trial court's finding that the defendant did not transport drugs for personal use did not implicate the defendant's Sixth Amendment rights as contemplated in Apprendi because Penal Code section 1210.1 creates a sentencing reduction rather than an increase in the prescribed statutory maximum sentence. (Dove, supra, 124 Cal.App.4th at p. 9.)
The Court reached this conclusion, in part, by relying on our Supreme Court's determination in In re Varnell (2003) 30 Cal.4th 1132, 1142, that "Penal Code section 1210.1 reduces the potential punishment" that a defendant may expect based upon his or her conviction(s). (Dove, at pp. 8-9.)