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In People v. Andreasen (2013) 214 Cal.App.4th 70, the defendant asserted a constitutional challenge to the felony murder special circumstance statute. Like Gallion, the defendant in Andreasen claimed that as applied to the actual perpetrator of the killing, the felony murder offense (§ 189) is indistinguishable from the felony murder special circumstance (§ 190.2, subd. (a)(17)). Thus, the defendant asserted, he had no way of anticipating whether he would be subjected to the possibility of death or life in prison without parole as opposed to life with the possibility of parole, and the prosecutor had unfettered discretion to select the charge. (Andreasen, at p. 79.)

After reviewing the pertinent statutes, this Court stated, "These statutes provided defendant with notice that if he commits a statutorily specified felony and kills someone during that felony, he could be subjected to a sentence of 25 years to life with the possibility of parole, life without parole, or death. Defendant had notice as to the proscribed conduct and potential punishment." (Andreasen, supra, 214 Cal.App.4th at p. 80.) In Andreasen, this Court also rejected defendant's contention that section 189 and section 190.2, subdivision (a)(17) are indistinguishable, stating, "The felony-murder offense is established merely upon a showing that the defendant killed during the commission or attempted commission of the felony, whereas the felony-murder special circumstance requires an additional showing that the intent to commit the felony was independent of the killing." (Andreasen, at p. 80.)

"The mere fact that the prosecution has discretion to select which punishment it will seek does not render a statute unconstitutionally vague or create an improper risk of arbitrary enforcement of a criminal statute." (Andreasen, supra, 214 Cal.App.4th at p. 80.) "The courts have repeatedly rejected constitutional challenges to the imposition of the special circumstance punishment on the direct killer, even though the statute can operate to punish a felony murderer who kills unintentionally more harshly than a simple murderer who kills intentionally." (Id. at p. 81.)

In People v. Andrade (2000) 79 Cal.App.4th 651, 660, the court explained:

"In theory and in practice, there comes a time when a tactical decision is so unreasonable that the trial court is compelled to intervene. . . . 'Criminal defendants, regardless of their guilt or innocence, are entitled to a fair trial . . . ,' and the trial court is obligated to grant a new trial if it finds the result of the first trial to have been unfair.

A trial court serves as a 'gatekeeper' on a motion for new trial. It opens the gate only rarely, a testament to the fact that the vast majority of trials resulting in conviction are fairly conducted.

In these cases, motions for new trial are routinely made, routinely denied, and are routinely affirmed on appeal.

In the remaining cases, however, the trial court grants the motion, and we affirm those rulings in the absence of a clear showing of abuse of discretion." (Id. at p. 661.)

In People v. Andra (2007) 156 Cal.App.4th 638, the defendant used the victim's personal information to obtain a credit card, and then used the credit card to rent a car she never returned.

She also used the same victim's personal information to open a bank account, and then deposited bad checks and withdrew funds, committing theft by false pretenses.

The defendant argued all of the offenses were committed pursuant to a single intent and objective to use the false personal information to obtain goods, i.e., the vehicle, and access funds from fraudulent or stolen checks deposited in the account. (Andra, at pp. 641-642.)

The court rejected her argument, explaining criminal acts are divisible "'where the offenses are temporally separated in such a way as to afford the defendant opportunity to reflect and to renew his or her intent before committing the next one, thereby aggravating the violation of public security or policy already undertaken. " (Andra, supra, 156 Cal.App.4th at p. 640.)

The defendant had ample opportunity to reflect and renew her criminal intent as to each of the crimes. Identity theft occurred when she used the victim's personal identifying information, without consent, to obtain a credit card. The vehicle theft occurred two weeks later, when she used the credit to rent a vehicle and failed to return it. (Id. at p. 641.)

Identity theft occurred again when she used the victim's identifying information to open the bank account. Theft by false pretenses occurred when she used the account to deposit bad checks and withdraw funds. (Id. at pp. 641-642.)

Moreover, there were multiple victims. The victim of the identity theft was the person whose personal information defendant used, whereas the victim of the vehicle theft was the car rental agency and the victim of the theft by false pretenses was the bank. (Ibid.)

Accordingly, the court held the defendant was properly punished for both identity thefts, the vehicle theft, and obtaining money by false pretenses because "the temporal separation between these crimes, gave her substantial opportunity to 'reflect' on her conduct and then 'renew' her intent to commit yet another crime. She chose, repeatedly, to continue on in her crime spree." (Ibid.)

In People v. Anderson (2007) 152 Cal.App.4th 919, the jury was instructed on the presumption of innocence and the prosecution's burden of proof, as well as the defendant's right not to testify and to rely on the state of the evidence and the prosecution's failure to prove the charges beyond a reasonable doubt.

Viewing these instructions as a whole, the Court concluded there was no reasonable likelihood the jury would have misunderstood the instruction in the manner claimed by the defendant. (People v. Anderson, supra, 152 Cal.App.4th at p. 938.) In People v. Anderson (2007), both direct and circumstantial evidence of the defendant's guilt was presented. The victims identified the defendant to the police as the man who had put a knife to one of the victim's throat, who had demanded and was given that victim's wallet, and who had grabbed a cell phone from a console in the victim's car. In addition, officers found a pocket knife on the defendant and the victim's wallet and cell phone on the ground outside the defendant's car.

At trial, the jury found the defendant guilty of second degree robbery. (Anderson, supra, 152 Cal.App.4th at pp. 926-927.)

On appeal, the defendant contended that, because CALCRIM No. 224 is limited to circumstantial evidence and sets forth basic reasonable doubt and burden of proof principles, it gives the false impression that these principles apply to circumstantial evidence but not to direct evidence. (Anderson, supra, 152 Cal.App.4th at p. 931.)

In rejecting the defendant's contention, the court stated that CALCRIM No. 224 "cautions the jury not to rely on circumstantial evidence to find the defendant guilty unless the only reasonable conclusion to be drawn from it points to the defendant's guilt. In other words, in determining whether a fact necessary for conviction has been proved beyond a reasonable doubt, circumstantial evidence may be relied on only if the only reasonable inference that may be drawn from it points to the defendant's guilt. The same limitation does not apply to direct evidence. Circumstantial evidence involves a two-step process: presentation of the evidence followed by a determination of what reasonable inference or inferences may be drawn from it. By contrast, direct evidence stands on its own. It is evidence that does not require an inference. Thus, as to direct evidence, there is no need to decide whether there is an opposing inference that suggests innocence." (Ibid.)

The defendant in Anderson also challenged CALCRIM No. 224 by contending that "California law has long recognized the principle that 'if two reasonable interpretations of the evidence exist, the one favoring the defendant's innocence must be adopted,' and this principle applies to both direct and circumstantial evidence." (Anderson, supra, 152 Cal.App.4th at p. 931.)

In rejecting this contention, the court stated, "The question addressed by CALCRIM No. 224 is not how to consider the evidence as a whole but how to consider specific circumstantial evidence. The instruction concerns whether a necessary fact may reasonably be inferred from circumstantial evidence when that evidence can be construed in a way that points to the defendant's innocence, not whether the evidence as a whole may reasonably be construed to point to the defendant's innocence." (Id. at p. 932.)

In People v. Anderson (2006) 141 Cal.App.4th 430, the defendant was charged with one count of murder under section 187, subdivision (a).

After the close of evidence, the prosecution was allowed to orally amend the information by adding the theory of felony murder.

The trial court gave no instructions on lesser included offenses.

The Court concluded that whether the trial court had a sua sponte duty to instruct on lesser included offenses of murder was to be determined with respect to the offenses charged in the information, and not the theories actually offered by the prosecution at trial. (Id. at pp. 444-446.)

The court determined substantial evidence would have supported jury findings that the defendant was not guilty of felony murder, because she did not form the intent to steal the victim's money before the fatal blow was inflicted. The defendant thus may have aided and abetted a second degree murder or voluntary manslaughter, and jury instructions on those offenses were therefore required. (Id. at pp. 446-448.)

In reversing the defendant's conviction, the Anderson court stated:

"We assume for the sake of argument that, as the prosecution argues, the trial court would have had no sua sponte duty to instruct if felony murder were the only crime charged ... . In this case, however, felony murder was not the crime charged, at least in the accusatory pleading. The ... information contained only a single charge of murder under Penal Code section 187. ... It has been held consistently that the scope of the sua sponte duty to instruct is determined by the charge contained 'in the accusatory pleading itself.' . ... 'When an accusatory pleading alleges a particular offense, it thereby demonstrates the prosecution's intent to prove all the elements of any lesser necessarily included offense. ...' . ... Because second degree murder and voluntary manslaughter are lesser included offenses of the offense charged against defendant in the amended information, defendant was on notice that she might be convicted of that crime or any of its lesser included offenses--and, by the same token, that she could anticipate instructions on these lesser offenses if they were supported by substantial evidence. While we realize that, technically, the prosecution amended the information after the close of evidence to include a charge of felony murder, we conclude that this amendment should not be permitted to alter the expectations created by the original information. It is not clear from the transcript that the felony-murder charge supplanted the murder charge contained in the information, since the trial court referred to felony murder as an 'added' charge. If the original charge of murder remained, the sua sponte duty to instruct as to lesser offenses did as well. Even if felony murder had been intended to replace the existing charge, an amendment made at the close of evidence does not satisfy the notice function that underpins the duty of sua sponte instruction. . Having established the expectation that instruction on lesser included offenses of murder would be given, if supported by the evidence, the prosecution could not defeat that expectation by amendment after the close of evidence." (People v. Anderson, supra, 141 Cal.App.4th at pp. 444-446.)

In People v. Anderson (2001) 25 Cal.4th 543, the California Supreme Court considered the claim that a witness's delusions that her imaginary son was present at the subject murder rendered her incompetent to testify about the murder. (Id. at p. 571.)

The court summarized the rules regarding the trial court's evaluation of a witness's competency. It acknowledged that Evidence Code sections 700, 701, and 702 governed the competency of witnesses (Anderson, at pp. 572-574), and stated that "capacity to communicate, or to understand the duty of truthful testimony, is a preliminary fact to be determined exclusively by the court, the burden of proof is on the party who objects to the proffered witness, and a trial court's determination will be upheld in the absence of a clear abuse of discretion." (Id. at p. 573.)

The Supreme Court observed that "under the Evidence Code, the capacity to perceive and recollect particular events is subsumed within the issue of personal knowledge, and is thus determined 'in a different manner' from the capacity to communicate or to understand the duty of truth." (Ibid.)

"'Because a witness, qualified under Evidence Code section 701, must have personal knowledge of the facts to which he testifies (Evidence Code section 702), he must, of course, have the capacity to perceive and to recollect those facts. But the court may exclude the testimony of a witness for lack of personal knowledge only if no jury could reasonably find that he has such knowledge.'" (Ibid.)

The Anderson court noted that there was no serious claim that the witness could not communicate her memories coherently or understand that she must recount them truthfully. (Anderson, supra, 25 Cal.4th at p. 574.)

The court focused on defendant's contention that she lacked the capacity to perceive and recollect her memories accurately because of her delusions about the presence of her imaginary son during the murder. (Id. at p. 574.) The court concluded that the trial court did not err. (Id. at p. 575.)

It agreed with the trial court that there were "many indicia by which a rational trier of fact could conclude that the witness, despite her specific delusions . . . had accurately perceived and recollected" the events of the murder and, aside from her insistence of her imaginary son's presence, "presented a plausible account" of the circumstances of the murder. (Id. at p. 574.)

In People v. Anderson (1990) 221 Cal.App.3d 331, the crime of shooting at an inhabited residence is involved, a defendant need not be aware of the identity or number of people in the house to be punished separately for each victim.

In that case, four defendants carried out an armed invasion of a home, expecting to find the owner in possession of drugs and money. As it happened, the owner's sister was house-sitting, and had invited three of her friends over for the evening. After firing into the residence while posing as federal agents, the perpetrators entered and committed additional violent crimes against three of the four occupants. (Id. at p. 335.)

On appeal, one of the defendants argued that her consecutive sentences for both robbery and shooting at the dwelling violated Penal Code section 654. Another division of this court upheld the sentences pursuant to the multiple victim exception, which the court indicated is applicable as long as each violent offense involves at least one different victim. Since only three of the four victims of the shooting at the dwelling offense in Anderson had been the charged victims in other counts, the existence of the fourth victim supported application of the multiple victim exception to the charge of shooting at the inhabited dwelling. (221 Cal.App.3d at pp. 338-339.)

In People v. Anderson (1978) 20 Cal.3d 647, the court held it was reversible error for the trial court to permit the prosecution to introduce evidence that on two prior occasions the two defendants had been arrested together.

The Anderson court held the error to be prejudicial because the record revealed a close case, which took several days of jury deliberations. As the court noted, but for admission of the prior arrests, it was reasonably probable that the jury would have believed the defendants' version of the events and rendered a more favorable verdict. ( Id. at p. 651.)

In People v. Anderson (1968) 70 Cal.2d 15, the court "set forth standards, derived from the nature of premeditation and deliberation as employed by the Legislature and interpreted by this court, for the kind of evidence which is sufficient to sustain a finding of premeditation and deliberation." (Id. at pp. 25-26.) The court pointed out that "for a killing with malice aforethought to be first rather than second degree murder, '"the intent to kill must be . . . formed upon a pre-existing reflection," . . . and have been the subject of actual deliberation or forethought . . . .'" (Id. at p. 26.)

The court then explained that "the type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing--what may be characterized as 'planning' activity; (2) facts about the defendant's prior relationship and/or conduct with the victim from which the jury could reasonably infer a 'motive' to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of 'a pre-existing reflection' and 'careful thought and weighing of considerations' rather than 'mere unconsidered or rash impulse hastily executed' ; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a 'preconceived design' to take his victim's life in a particular way for a 'reason' which the jury can reasonably infer from facts of type (1) or (2)." (Id. at pp. 26-27.)

In People v. Anderson (1965) 63 Cal.2d 351, the defendant killed the daughter of a women he was living with one afternoon when he stayed home from work drinking. (People v. Anderson, supra, 63 Cal.2d at pp. 355-356.)

The victim, who died from a laceration to her lung, suffered "41 wounds ranging over the entire body from the head to the extremities. (Id. at p. 356.)

The Supreme Court once again concluded the evidence was insufficient to prove the defendant committed murder in the perpetration of mayhem. (People v. Anderson, supra, 63 Cal.2d at pp. 358-359.)

The court explained, "the record here does not disclose substantial evidence showing a specific intent to commit mayhem. The evidence does no more than indicate an indiscriminate attack; it cannot independently uphold a verdict based on the precise premise that the defendant entertained the specific intent to commit mayhem." (Id. at p. 359.)

In People v. Anderson (1961) 55 Cal. 2d 655, the court dealt with a jurisdictional issue involving charges of grand theft and attempted grand theft (no conspiracy was charged).

In that case the defendant made fraudulent representations within California to a resident of this state concerning a gambling scheme in Nevada.

That resident withdrew cash in California and took it to Nevada.

Further false representations were made there and the theft was completed in that state.

The court concluded California had jurisdiction to prosecute the defendant since his acts in California amounted to an attempted theft and thus the crimes were commenced in this state.

The court also relied, however, on the fact the victims were California residents and their property was located in this state. ( Id. at pp. 661-662.)

In People v. Anderson (1872) 44 Cal. 65, the jury was instructed, on the one hand, that the right of self-defense "'cannot be exercised in any case, or to any extent not necessary. The party making the defense is permitted to use no instrument and no power beyond what will prove simply effectual.'" (Id. at p. 68.) It was instructed, on the other hand, that if one "assaulted the defendant under such circumstances as to create a reasonable apprehension that he was about to suffer a great bodily injury, the defendant 'might safely act on such appearances, and kill the assailant, if absolutely necessary to avoid the apprehended danger, and the killing is justifiable, although it might afterward turn out that the appearances were false and there was in fact neither design to do him serious injury nor danger that it would be done.'" (Id. at p. 69.) The court reversed the judgment against the defendant, holding that the jury instructions might well have misled the jury. (Id. at pp. 69-70.)

The Anderson court observed at the outset that the first instruction "was clearly erroneous." (People v. Anderson, supra, 44 Cal. at p. 68.)

It further explained: "On the one hand the jury is told, in substance, that the danger must have been real, and that the right of self-defense cannot be exercised in any case or to any degree not necessary; and on the other hand, that it is sufficient if the danger was apparent, though it afterward turned out that in fact there was no actual danger and no necessity for the killing. These propositions are contradictory and wholly irreconcilable, and it is impossible to determine on which of them the jury acted. When the instructions on a material point are contradictory there should be a new trial." (Id. at p. 69.)

In People v. Anderson (1990) 52 Cal.3d 453, the defendant complained that the prosecutor had improperly vouched for the credibility of the police officers who testified at trial when she asserted that "'a law enforcement officer is no good as a witness if his credibility is in doubt,' and in essence supported the credibility of the officers testifying in this case by noting that 'a number of them . . . are old, experienced officers. They've got 15, 20, 22 years of experience on the force.' The prosecutor expressed her doubt that any of them would 'jeopardize' his reputation by lying on the witness stand 'just to convict one defendant.' The prosecutor continued by noting that defendant, on the other hand, would only be testifying once, rather than a number of times, that he 'doesn't have anything else to lose,' and 'so what if you do catch him in a few lies?'" (Id. at pp. 478.)

The Supreme Court concluded the remarks were not improper, because "the prosecutor limited her remarks to facts of record, namely, the years of experience of the officers involved, and her 'vouching' was clearly based on inferences reasonably drawn therefrom, rather than on her personal belief or knowledge. We find no improper prosecutorial vouching here." (Id. at p.479.)

In People v. Andersen (1994) 26 Cal.App.4th 1241, a blood test revealed that the defendant had a blood-alcohol level of 0.022 and a methamphetamine level of 156 nanograms per milliliter at the time of the test. ( Id. at pp. 1246-1247.)

In rejecting the defendant's claim, the court explained, "The prosecution's theory of the case was that defendant was driving under the combined influence of alcohol and drugs. Since it is the combination that is alleged to have made defendant intoxicated, the level of alcohol alone in his blood is irrelevant. In these circumstances, an instruction couched in the language of former Vehicle Code section 23155, subdivision (a)(1), would have been highly confusing to the jurors. Accordingly, it was not error for the court to fail to give such an instruction." ( Id. at p. 1250.)

In People v. Amwest Surety Ins. Co. (2001) 87 Cal.App.4th 69, the appellate court found that the trial court properly entered summary judgment on a bail bond forfeiture when the defendant failed to appear in court, because the defendant's arrest and return to custody in a second criminal case had no effect on the contractual bail bond obligation for him to appear in the first case.

Both cases were in the same California court, the Riverside County Superior Court.

The Court of Appeal emphasized that it was the obligation of the sureties on a bail bond to produce the principal at the time and place specified in the bond, and that upon a defendant's failure to appear the surety became the absolute debtor of the state for the amount of the bond. (Id. at p. 71.)

In People v. Amwest Surety Ins. Co. (2004) 125 Cal.App.4th 547, the Court found the trial court's entry of summary judgment on the bond void, not merely voidable.

In Amwest, the trial court failed to declare a bail bond forfeited on the record in open court, as mandated by section 1305, subdivision (a).

Consequently, "no forfeiture occurred, the bond was exonerated, and the court no longer had jurisdiction to declare a forfeiture." (Amwest, at p. 553.)

Because the court "thereafter had nothing upon which to act" (ibid.), its later entry of summary judgment on the bond was void and subject to collateral attack at any time. (Id. at p. 549.)

In People v. Amonson (2003) 114 Cal.App.4th 463, the defendant was charged with gross vehicular manslaughter while intoxicated. The trial court found him mentally incompetent and committed him for 180 days pursuant to section 1601. The defendant had a developmental disability that was worsened by severe injuries sustained in an automobile collision. All of the medical experts agreed that he was not dangerous and should be placed in an outpatient setting with his mother. One doctor opined that the defendant " 'is not likely [to have] the capacity to become trial competent.' " (Amonson, supra, 114 Cal.App.4th at p. 466.)

The defendant contended that "the statutorily mandated period of confinement is not constitutional where, as here, the defendant is not dangerous and his competency cannot be restored during the confinement period." (Amonson, supra, 114 Cal.App.4th at p. 472.) The appellate court noted that, in In re Davis (1973) 8 Cal.3d 798, the California Supreme Court had adopted the " 'rule of reasonableness' " of Jackson v. Indiana (1972) 406 U.S. 715. (Amonson, supra, 114 Cal.App.4th at p. 472.) Pursuant to this rule, " ' "a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.' " (Ibid.)

The Amonson court observed that in 1974 the legislature had amended section 1370 "[t]o bring the incompetency commitment procedure into conformity with the Jackson-Davis guidelines." (Ibid.) Section 1370, subdivision (b)(1), provides that, within 90 days of commitment, "the medical director of the state hospital . . . to which the defendant is confined shall make a written report to the court . . . concerning the defendant's progress toward recovery of mental competence. . . . If the report indicates that there is no substantial likelihood that the defendant will regain mental competence in the foreseeable future, the committing court shall order the defendant to be returned to the court" for civil commitment proceedings.

The defendant in Amonson argued "that even a 90-day commitment is too long because various experts have already evaluated his mental condition and all have reached the same conclusion [that he cannot regain mental competency]." In rejecting the defendant's argument, the appellate court reasoned: "[T]he Legislature, in its considered judgment, has determined that persons accused of violent felonies must undergo an initial period of evaluation in a residential facility with a secured perimeter or a locked and controlled treatment facility. Although the experts have forecast that defendant's condition will not improve, the Legislature could rationally favor experience over prognostication and require a short period of actual confinement in the controlled environment of a secure facility. Nothing in Jackson suggests the Legislature's determination is constitutionally unreasonable." (Amonson, supra, 114 Cal.App.4th at p. 473.)

In People v. American Surety Ins. Co. (2000) 77 Cal.App.4th 1063, the trial court ordered bail forfeited when the defendant failed to appear because immigration authorities had deported him after he was convicted of narcotics trafficking in another case. (Id. at p. 1065.)

The surety appealed and the appellate court reversed. Because the drug trafficking conviction permanently barred the defendant from returning to the United States (except in few narrowly circumscribed circumstances), the court concluded that the defendant had, as a practical matter, been "permanently detained" for purposes of section 1305, subdivision (d). (American Surety, supra, 77 Cal.App.4th at pp. 1067-1068.)

The court reasoned that:

"Quintero's forced deportation and the federal statutes barring his reentry 'detain' him, by operation of United States law, from appearing in a California court. He was not only ordered to leave the country, he was physically escorted across the border by federal agents. Federal statutes prevent both his voluntary return, and his forced return by Surety. (8 U.S.C.A. §§ 1182 (a)(2)(A)(i)(II), 1327.)" (Id. at p. 1066)

In People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, the trial court entered summary judgment on the last day (the 185th day) of the appearance period, which also was a day after the surety filed a timely motion to extend the period.

The trial court granted the motion to extend three weeks later, extending the appearance period for another 180 days. (American Contractors, supra, 33 Cal.4th at p. 659.)

More than three months after the extended appearance period ran, the surety moved to set aside the summary judgment, vacate the bail forfeiture and exonerate the bond. (Ibid.) The trial court denied the motion. The Court of Appeal and Supreme Court affirmed. (Id. at pp. 660, 666.)

The Supreme Court agreed the summary judgment, entered on the last day of the appearance period and after the surety had filed a timely notice to extend the period, was "premature." (Id. at p. 660.)

However, it rejected the surety's argument the summary judgment was "void" and therefore of no consequence to the trial court's subsequent ruling on the motion to vacate the bail forfeiture and exonerate the bond. The court held the summary judgment was merely "voidable," and thus had full force and effect until it was either vacated by the trial court or reversed on appeal. (Id. at pp. 660-665.)

The court was unsympathetic to the surety's argument that had it appealed from the premature summary judgment, the trial court would have lost jurisdiction to hear its subsequent motion to vacate the forfeiture and exonerate the bond. (Id. at p. 664.)

As the court explained, the surety had two options: make a motion in the trial court to vacate the premature summary judgment (which very likely would have been granted) or file a notice of appeal to overturn the judgment. (Id. at pp. 664-665.)

In People v. American Contractors Indemnity Co. (2004) the Supreme Court summarized the nature of bail bond proceedings. "While bail bond proceedings occur in connection with criminal prosecutions, they are independent from and collateral to the prosecutions and are civil in nature. (People v. Wilcox (1960) 53 Cal.2d 651, 654 . . . .)

'The object of bail and its forfeiture is to insure the attendance of the accused and his obedience to the orders and judgment of the court.' (Id. at pp. 656-657; see Stack v. Boyle (1951) 342 U.S. 1, 5 . . . 'Like the ancient practice of securing the oaths of responsible persons to stand as sureties for the accused, the modern practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture serves as additional assurance of the presence of an accused'.) 'In matters of this kind there should be no element of revenue to the state nor punishment of the surety.' (Wilcox, at p. 657.)

Nevertheless, the 'bail bond is a contract between the surety and the government whereby the surety acts as a guarantor of the defendant's appearance in court under the risk of forfeiture of the bond.' (People v. Ranger Ins. Co. (1994) 31 Cal.App.4th 13, 22 . . . .) Thus, when there is a breach of this contract, the bond should be enforced. (See People v. North Beach Bonding Co. (1974) 36 Cal.App.3d 663, 675 . . . .)" (American Contractors, at pp. 657-658.)

In People v. American Bankers Ins. Co. (1991) 227 Cal. App. 3d 1289, 1295 278 Cal. Rptr. 314, the clerk mistakenly inserted the bail agent's notice into an envelope addressed to a different bail agent for the same surety.

When the second bail agent received the envelope, it forwarded the notice to the intended bail agent who received the notice seven days after it was mailed by the clerk. (227 Cal. App. 3d at p. 1292.)

The surety moved to set aside forfeiture and obtain exoneration due to the failure to strictly comply with section 1305.

Noting that "the goal of effective notice was achieved because both the Surety and Lawton, its bail agent, received actual notice of the forfeiture in a timely fashion," the court concluded that the interpretation urged by the surety was "literal but absurd." ( People v. American Bankers Ins. Co., supra, at pp. 1295, 1296.) "There is no reason why the Surety should be released from its liability under the bond merely because the return address on the envelope in which the intended bail agent received his copy of the notice of forfeiture was that of the second bail agent instead of the court clerk.

There are times when there are good reasons for form to triumph over substance, but this is not one of them." ( Id. at p. 1296, 278 Cal. Rptr. 314.)

In People v. American Bankers Insurance Co. (1991) 227 Cal. App. 3d 1289, overruled on another ground in People v. National Auto and Cas. Ins. Co. (2000) 82 Cal.App.4th 120, the court clerk failed to follow section 1305 by inadvertently mailing notice of forfeiture to another bail agent for the same surety. The agent then forwarded the notice to the correct agent, who received it within the requisite 30 days. The American Bankers court first noted that strict construction of the statute would result in an absurdity. (Id. at p. 1295.)

The court also reasoned: "While it is appropriate for courts to strictly construe any ambiguities against the party seeking to enforce the forfeiture, we will not hesitate to enforce a forfeiture when the application of a statute or contract is reasonably clear. Nor will we blindly follow the literal meaning of every word if to do so would frustrate the legislative purpose of those words. As another court has said in interpreting this same section: It is the prime purpose of the courts, in examining a statute, to ascertain and effectuate the legislative purpose; a statute will not be given an interpretation in conflict with its clear purpose, and general words used therein will be given a restricted meaning when reason and justice require it, rather than a literal meaning which would lead to an unjust and absurd consequence." (Ibid.)

Observing that "the obvious legislative purpose in directing that notices of forfeiture be mailed is to require that reasonable efforts are taken to give actual notice of the forfeiture of the bond to both the surety and the bail agent . . . ." the American Bankers court rejected the surety's contention that the failure to comply with the notice requirements of section 1305 deprived the trial court of jurisdiction. (Id. at p. 1295.)

In People v. Ambrose (1992) 7 Cal.App.4th 1917, the Court determined that a trial court could require that a defendant waive future credit for participation in a drug treatment program as a valid condition of probation. As the court explained:

"We are cited to no case, nor has our research discovered any, which precludes a knowing and intelligent waiver of future custody credit. Here, the waiver served important purposes in (a) resolving in advance the issue as to whether custody credit would apply at all to time spent at the ranch; and (b) allowing the trial court to deny credit for an unsuccessful stay at the ranch, thus avoiding a windfall to appellant." (People v. Ambrose, supra, 7 Cal. App. 4th at p. 1921, 9 Cal. Rptr. 2d 812.)

The Ambrose court did express one concern about future credit waivers, noting "This does not mean, of course, that we would endorse a situation in which the denial of future credit enabled the court to impose a term which is longer than the maximum allowable for the offense.

Even if a defendant agrees to such a negotiated disposition, a trial court should not impose a sentence in excess of the maximum allowable for the plea entered." (People v. Ambrose, supra, 7 Cal. App. 4th at p. 1924, 9 Cal. Rptr. 2d 812.)

In People v. Alverson (1964) 60 Cal.2d 803, three defendants were tried for burglary.

One of them, Williamson, testified that he had driven the getaway car, but that he did not know of the burglary until the other two defendants got into the car, told him they had burglarized a store, and advised him to drive away. (Id. at p. 804.)

At trial, the prosecutor asked the jury to believe Williamson, to acquit him, and to convict the other two defendants. In doing so, he told the jury that he believed Williamson was telling the truth and did not think he was guilty of the charge, and said that his duty as a prosecutor was not to convict innocent people, but to convict the guilty. (Id. at pp. 805-806.)

The jury acquitted Williamson and found his codefendants guilty. (Id. at p. 804.) One of the codefendants appealed, and our Supreme Court reversed. (Id. at pp. 804, 810.)

The court concluded that the prosecutor's statement that he believed Williamson was innocent and did not want to convict an innocent man amounted to a statement that he personally believed the codefendants were guilty, and that such a statement constituted reversible misconduct. (Id. at p. 808.)

The court stated that the prosecutor could have used other procedures once he became convinced of Williamson's innocence, such as moving for a mistrial or for dismissal of the case against Williamson. (Id. at pp. 806-807.)

In People v. Alvas (1990) 221 Cal. App. 3d 1459, 271 Cal. Rptr. 131 (Alvas), the Third District held that, even absent a request, the right to a jury trial must be provided in MRPL cases as a matter of equal protection and due process. ( Alvas, supra, at p. 1463.)

In support of its equal protection analysis, the court cited the Lanterman-Petris-Short (LPS) Act, sections 5000 et seq. Under the LPS Act, persons who suffer from mental disorders other than retardation are subject to confinement if they are a danger to themselves or others. ( §§ 5150, 5170, 5300.)

The Alvas court noted that the LPS Act requires that persons subject to confinement be advised of their right to a jury trial. ( § 5302.)

The court saw no rational distinction between mentally disordered persons subject to the LPS Act and mentally retarded persons subject to the MRPL.

Therefore, it held persons subject to the MRPL should have the same right of advisement. (Alvas, supra, at pp. 1463-1464.)

The Alvas court further concluded that, given the liberty interests at stake, the right to a jury trial in involuntary commitment proceedings "is a right of constitutional dimension."

Therefore, express advisement of the right in MRPL proceedings is required as a matter of due process. (Alvas, supra, 221 Cal. App. 3d at pp. 1464-1465.)

Finally, the Alvas court stated that, in order to insure an adequate basis for review, an advisement and waiver of the right to a jury trial must be shown on the record.

If the defendant is so mentally retarded as to be unable to comprehend the right to a jury trial, the record should affirmatively reflect that fact, with that determination being made by the trial judge based upon competent evidence. (Alvas, supra, 221 Cal. App. 3d at p. 1465.)

In People v. Alvarez (2002) 27 Cal.4th 1161, the California Supreme Court addressed the impact on the corpus delicti rule of the "Right to Truth-in-Evidence" amendment to the California Constitution, which provides that "relevant evidence shall not be excluded in any criminal proceeding ... ." (Cal. Const., art. I, § 28, former subd. (d).)

Alvarez involved a trial. The Court of Appeal held that the trial court erred in failing to give a sua sponte instruction regarding "the need for independent proof of the corpus delicti" for committing a lewd act on a child, and reversed on that count. (Alvarez, supra, 27 Cal.4th at p. 1165.)

The court found that failure to give the instruction "was prejudicial, because aside from defendant's preoffense statements introduced at trial, there was no other evidence of his lewd intent in touching the victim." (Ibid.)

he Supreme Court held that the Court of Appeal had correctly ruled that section 28, former subdivision (d) of the California Constitution had not "abrogated the need for a corpus delicti instruction." (Alvarez, at p. 1166.) Nevertheless, the Supreme Court reversed and held that the instructional error was harmless "because the independent evidence of lewd intent was present." (Ibid.)

In People v. Alvarez (1996) 49 Cal.App.4th 679, in a post-trial motion, defendant sought an order striking or dismissing findings that he had suffered multiple "strike" convictions, on the ground that the three strikes law violated the separation of powers doctrine. The court denied defendant's motion.

On appeal, defendant raised the same claim, and argued further that the trial court was unaware it had discretion under section 1385 strike one or more of his strikes. In rejecting the latter claim, this court stated: "It has long been settled that the burden is on an appellant to affirmatively show in the record that error was committed by the trial court. . . .Here, defendant has failed to point to any part of the record which affirmatively shows the trial court 'misunderstood the scope of its discretion to strike prior felony conviction allegations . . . pursuant to section 1385, subdivision (a).' Instead, all we have is a record showing the trial court rejected defendant's separation of powers argument, and nothing more. We decline to automatically presume the trial court erroneously believed it had no discretion to strike defendant's priors in the absence of some affirmative showing that it misunderstood its discretion. To do so would require us to engage in pure speculation, and violate a basic tenet of appellate review." (Id. at pp. 694-695.)

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