contention error in California

1960We have concluded that there is no merit to the appellant’s contention. “ We must view the evidence most favorable to the contention that the doctrine is applicable . . . since plaintiff is entitled to an instruction thereon if the evidence so viewed could establish the elements of the doctrine.” (Selinsky v. Olsen, 38 Cal.2d 102, 103 [ 237 P.2d 645 ]; see also Durkee v. Atchison, Topeka & Santa Fe Railway Co., 159 Cal.App.2d 615, 620 [ 324 P.2d 91 ].) “. . .

1960We have concluded that there is no merit to the appellant’s contention. “ We must view the evidence most favorable to the contention that the doctrine is applicable . . . since plaintiff is entitled to an instruction thereon if the evidence so viewed could establish the elements of the doctrine.” (Selinsky v. Olsen, 38 Cal.2d 102, 103 [ 237 P.2d 645 ]; see also Durkee v. Atchison, Topeka & Santa Fe Railway Co., 159 Cal.App.2d 615, 620 [ 324 P.2d 91 ].) “. . .

2013(See People v. Crittle (2007) 154 Cal.App.4th 368, 371 ; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357 ; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469 ; see also People v. McMahan (1992) 3 Cal.App.4th 740,749-750 [defendant knowledgeable about his ability to pay, and his failure to object to fine recommended by probation officer or offer contrary evidence forfeited claim].) Recently, our Supreme Court agreed with this view.

2013(See People v. Crittle (2007) 154 Cal.App.4th 368, 371 ; People v. Hodges (1999) 70 Cal.App.4th 1348, 1357 ; People v. Gibson (1994) 27 Cal.App.4th 1466, 1468-1469 ; see also People v. McMahan (1992) 3 Cal.App.4th 740, 749-750 [defendant knowledgeable about his ability to pay, and his failure to object to fine recommended by probation officer or offer contrary evidence forfeited claim].) Recently, our Supreme Court agreed with this view.

1954In conducting the inquiry we must consider all the evidence and all reasonable inferences that tend to support a finding, disregarding all conflicts, a principle well expressed in Jones v. Yuma Motor F. Terminal Co., 45 Cal.App.2d 497, 500-501 [ 114 P.2d 438 ], when testing the propriety of giving an instruction on the doctrine of last clear chance: “. . .we must consider all of the evidence before the court regardless of which party presented it and, disregarding conflicts, must view the evidence in the light most favorable to the contention that the doctrine is applicable, indulging every re

1954In conducting the inquiry we must consider all the evidence and all reasonable inferences that tend to support a finding, disregarding all conflicts, a principle well expressed in Jones v. Yuma Motor F. Terminal Co., 45 Cal.App.2d 497, 500-501 [ 114 P.2d 438 ], when testing the propriety of giving an instruction on the doctrine of last clear chance: “. . .we must consider all of the evidence before the court regardless of which party presented it and, disregarding conflicts, must view the evidence in the light most favorable to the contention that the doctrine is applicable, indulging every re

1957In determining whether the trial court should have instructed the jury on the doctrine of last clear chance ‘ ‘ [w] e must view the evidence most favorable to the contention that the doctrine is applicable.” (Selinsky v. Olsen, 38 Cal.2d 102, 103 [ 237 P.2d 645 ] ; Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ].) Taking the evidence most favorable to the plaintiff on the theory of last clear chance we may fairly summarize it as follows: When plaintiff's automobile was 300 feet from the intersection of Pulgas Road he extended his left arm horizontally from the window of his car to in

1957In determining whether the trial court should have instructed the jury on the doctrine of last clear chance ‘ ‘ [w] e must view the evidence most favorable to the contention that the doctrine is applicable.” (Selinsky v. Olsen, 38 Cal.2d 102, 103 [ 237 P.2d 645 ] ; Bonebrake v. McCormick, 35 Cal.2d 16, 19 [ 215 P.2d 728 ].) Taking the evidence most favorable to the plaintiff on the theory of last clear chance we may fairly summarize it as follows: When plaintiff's automobile was 300 feet from the intersection of Pulgas Road he extended his left arm horizontally from the window of his car to in

2019“The Supreme Court has repeatedly rejected the contention that an instruction on the natural and probable consequences doctrine is erroneous because it permits an aider and abettor to be found guilty of murder without malice.” (People v. Culuko (2000) 78 Cal.App.4th 307, 322 , citing People v. Garrison 47 Cal.3d 746 , 777–778 and People v. Bunyard (1988) 45 Cal.3d 1189 , 1231–1232.) Defendants in effect ask us to rule contrary to the Supreme Court’s determination of the issue, which we have no authority to do.

2008(People v. Garrison (1989) 47 Cal.3d 746, 777-778 [ 254 Cal.Rptr. 257 , 765 P.2d 419 ]; People v. Bunyard (1988) 45 Cal.3d 1189, 1231-1232 [ 249 Cal.Rptr. 71 , 756 P.2d 795 ]; see also People v. Culuko (2000) 78 Cal.App.4th 307, 322 [ 92 Cal.Rptr.2d 789 ] [“The [California] Supreme Court has repeatedly rejected the contention that an instruction on the natural and probable consequences doctrine is erroneous because it permits an aider and abettor to be found guilty of murder without malice”].) Finally, in a lengthy and convoluted argument, defendant appears to contend that the natural and prob

2019“The Supreme Court has repeatedly rejected the contention that an instruction on the natural and probable consequences doctrine is erroneous because it permits an aider and abettor to be found guilty of murder without malice.” (People v. Culuko (2000) 78 Cal.App.4th 307, 322 , citing People v. Garrison 47 Cal.3d 746 , 777–778 and People v. Bunyard (1988) 45 Cal.3d 1189 , 1231–1232.) Defendants in effect ask us to rule contrary to the Supreme Court’s determination of the issue, which we have no authority to do.

2008(People v. Garrison (1989) 47 Cal.3d 746, 777-778 [ 254 Cal.Rptr. 257 , 765 P.2d 419 ]; People v. Bunyard (1988) 45 Cal.3d 1189, 1231-1232 [ 249 Cal.Rptr. 71 , 756 P.2d 795 ]; see also People v. Culuko (2000) 78 Cal.App.4th 307, 322 [ 92 Cal.Rptr.2d 789 ] [“The [California] Supreme Court has repeatedly rejected the contention that an instruction on the natural and probable consequences doctrine is erroneous because it permits an aider and abettor to be found guilty of murder without malice”].) Finally, in a lengthy and convoluted argument, defendant appears to contend that the natural and prob

1963(Doran v. City & County of San Francisco, supra, 44 Cal.2d 477, 486, 487 .) The plaintiff’s contention that the doctrine applied to the instant case and that the defendant had the last clear chance to avoid the subject accident by remaining in the southerly half of River Road rather than turning into the northerly half thereof is predicated upon a position of danger in which the plaintiff placed himself after the time he asserts the defendant was afforded the aforesaid last clear chance to avoid the accident and, thus, fallaciously applies the doctrine to a state of facts existent after, inste

1961(Doran v. City & County of San Francisco, supra, 44 Cal.2d 477, 487 .) In determining the issue thus presented, the evidence is viewed most favorably to the contention that the doctrine is applicable.

2025(See, e.g., People v. Covarrubius (2016) 1 Cal.5th 838, 877 [“Defendant’s failure to request clarifying language forfeits the issues on appeal.”]; People v. Hardy (1992) 2 Cal.4th 86, 153 [“Because the instruction given was correct, it was incumbent on defendants to request clarifying language.”].) 6 Even if the issue were preserved, however, we would reject it on the merits because it is foreclosed by binding Supreme Court precedents.

2025(See, e.g., People v. Covarrubius (2016) 1 Cal.5th 838, 877 [“Defendant’s failure to request clarifying language forfeits the issues on appeal.”]; People v. Hardy (1992) 2 Cal.4th 86, 153 [“Because the instruction given was correct, it was incumbent on defendants to request clarifying language.”].) 6 Even if the issue were preserved, however, we would reject it on the merits because it is foreclosed by binding Supreme Court precedents.

2025(See, e.g., People v. Covarrubius (2016) 1 Cal.5th 838, 877 [“Defendant’s failure to request clarifying language forfeits the issues on appeal.”]; People v. Hardy (1992) 2 Cal.4th 86, 153 [“Because the instruction given was correct, it was incumbent on defendants to request clarifying language.”].) 6 Even if the issue were preserved, however, we would reject it on the merits because it is foreclosed by binding Supreme Court precedents.

2025(See, e.g., People v. Covarrubius (2016) 1 Cal.5th 838, 877 [“Defendant’s failure to request clarifying language forfeits the issues on appeal.”]; People v. Hardy (1992) 2 Cal.4th 86, 153 [“Because the instruction given was correct, it was incumbent on defendants to request clarifying language.”].) 6 Even if the issue were preserved, however, we would reject it on the merits because it is foreclosed by binding Supreme Court precedents.

2023(See e.g., Flethez, supra, 2 Cal.5th at p. 635, fn. 2 ; Crane, supra, 82 Cal.App.5th at p. 759 [elective corporate buyout provisions under Corp. Code, § 2000 do not give rise to damages as defined in section 3281, so no prejudgment interest under section 3287(a) is awardable on the fair-value amount].) Safeco urges that a recovery by an insured in a UIM proceeding is not “damages” within the statutory definition.

2023(See e.g., Flethez, supra, 2 Cal.5th at p. 635, fn. 2 ; Crane, supra, 82 Cal.App.5th at p. 759 [elective corporate buyout provisions under Corp. Code, § 2000 do not give rise to damages as defined in section 3281, so no prejudgment interest under section 3287(a) is awardable on the fair-value amount].) Safeco urges that a recovery by an insured in a UIM proceeding is not “damages” within the statutory definition.

2022(Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte).) This principle is particularly important in light of the voluminous record in this case.4 Notably, neither plaintiffs nor defendants have provided this court with a summary of the evidence that was produced at the lengthy trial.

2021(See In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 695 ; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 [failure to provide adequate record citations forfeits a contention of error]; see also Cal. Rules of Court, rule 8.204(a)(1)(C) & (a)(2)(C) [appellant’s opening brief must include a summary of significant facts limited to matters in the record, with any reference to a matter in the record supported by a citation to the volume and page number of the record].)7 7 In fact, the trial court record does not include the documents that Myriam contends she proffered to the t

2016Nevertheless, we consider Williams’s argument on the merits because a defendant’s contention that an instruction misstated the law or violated the defendant’s right to due process need not be preserved by objection. (§ 1259; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7 .) We note our Supreme Court approved the correlated CALJIC instruction (CALJIC No. 5.55) in People v. Enraca (2012) 53 Cal.4th 735 .

2013Such a contention may be raised for the first time on appeal. (§ 1259; People v. Smithey (1999) 20 Cal.4th 936, 976-977, fn. 7 .) In any event, “[a]s a general rule, an appellate court can reach a question a party has not preserved for review if the issue involves neither the admission nor the exclusion of evidence.” (People v. Gutierrez (2009) 174 Cal.App.4th 515, 520 .) The challenged instruction, a modified form of CALCRIM No. 375, reflected an effort by the court to encompass both the prosecution‟s effort to use the prior acts evidence against Armendariz, as well as Ramirez‟s effort to rel

2015(See Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [ 80 L.Ed.2d 674, 694, 696 , 104 S.Ct. 2052 ] (Strickland).) IV Aider and Abettor Instruction Defendant Mayle contends that the trial court’s use of a former version of CALCRIM No. 400 to instruct the jury that a defendant is “equally guilty” whether that defendant is the direct perpetrator or an aider and abettor was error and requires reversal of his convictions on count two (grand theft) and count four (bribing a public employee).

2015(See Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692 [ 80 L.Ed.2d 674, 694, 696 , 104 S.Ct. 2052 ] (Strickland).) IV Aider and Abettor Instruction Defendant Mayle contends that the trial court’s use of a former version of CALCRIM No. 400 to instruct the jury that a defendant is “equally guilty” whether that defendant is the direct perpetrator or an aider and abettor was error and requires reversal of his convictions on count two (grand theft) and count four (bribing a public employee).

2015“Because the court’s unanimity instruction regarding the counts listed was not reasonably likely to be understood as [defendant Mayle] asserts, his substantial rights were not affected and therefore a timely objection and/or request for modification or clarification was required to preserve the claim of error for purposes of appeal. [Citations.]” (People v. Milosavljevic (2010) 183 Cal.App.4th 640, 648-649 [ 107 Cal.Rptr.3d 792 ] (Milosavljevic), fn. omitted.) Finally, because the contention that the instruction was deficient and caused prejudice to defendant Mayle is without merit, we need no

2015“Because the court’s unanimity instruction regarding the counts listed was not reasonably likely to be understood as [defendant Mayle] asserts, his substantial rights were not affected and therefore a timely objection and/or request for modification or clarification was required to preserve the claim of error for purposes of appeal. [Citations.]” (People v. Milosavljevic (2010) 183 Cal.App.4th 640, 648-649 [ 107 Cal.Rptr.3d 792 ] (Milosavljevic), fn. omitted.) Finally, because the contention that the instruction was deficient and caused prejudice to defendant Mayle is without merit, we need no

2008(People v. Lang (1989) 49 Cal.3d 991, 1024 [ 264 Cal.Rptr. 386 , 782 P.2d 627 ].) Moreover, even if defendant had not forfeited the issue, there is no support for his argument.

2008(People v. Lang (1989) 49 Cal.3d 991, 1024 [ 264 Cal.Rptr. 386 , 782 P.2d 627 ].) Moreover, even if defendant had not forfeited the issue, there is no support for his argument.

2022Dist. (2006) 143 Cal.App.4th 333, 359 (Red Mountain).) “We review de novo the question of whether the trial court's instructions to the jury were correct. [Citations.] In evaluating the contention that an instruction was improperly refused, ‘we view the evidence in the light most favorable to the appellant.’ ” (Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 527 .) However, “[i]nstructional error in a civil case is not ground for reversal unless it is probable the error prejudicially affected the verdict.” (Red Mountain, supra, 143 Cal.App.4th at p. 359 ; accord, Soule, supra, 8 Cal.4th at p

2022Dist. (2006) 143 Cal.App.4th 333, 359 (Red Mountain).) “We review de novo the question of whether the trial court's instructions to the jury were correct. [Citations.] In evaluating the contention that an instruction was improperly refused, ‘we view the evidence in the light most favorable to the appellant.’ ” (Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 527 .) However, “[i]nstructional error in a civil case is not ground for reversal unless it is probable the error prejudicially affected the verdict.” (Red Mountain, supra, 143 Cal.App.4th at p. 359 ; accord, Soule, supra, 8 Cal.4th at p

2019“The Supreme Court has repeatedly rejected the contention that an instruction on the natural and probable consequences doctrine is erroneous because it permits an aider and abettor to be found guilty of murder without malice.” (People v. Culuko (2000) 78 Cal.App.4th 307, 322 , citing People v. Garrison 47 Cal.3d 746 , 777–778 and People v. Bunyard (1988) 45 Cal.3d 1189 , 1231–1232.) Defendants in effect ask us to rule contrary to the Supreme Court’s determination of the issue, which we have no authority to do.

2008(People v. Garrison (1989) 47 Cal.3d 746, 777-778 [ 254 Cal.Rptr. 257 , 765 P.2d 419 ]; People v. Bunyard (1988) 45 Cal.3d 1189, 1231-1232 [ 249 Cal.Rptr. 71 , 756 P.2d 795 ]; see also People v. Culuko (2000) 78 Cal.App.4th 307, 322 [ 92 Cal.Rptr.2d 789 ] [“The [California] Supreme Court has repeatedly rejected the contention that an instruction on the natural and probable consequences doctrine is erroneous because it permits an aider and abettor to be found guilty of murder without malice”].) Finally, in a lengthy and convoluted argument, defendant appears to contend that the natural and prob

2015(People v. Reliford (2003) 29 Cal.4th 1007, 1009, 1012-1016 .) Although none of these cases addressed the contention that the instruction was argumentative under the definition in People v. Wright, supra, 45 Cal.3d 1126 (quoted above), the Supreme Court addressed an analogous issue in People v. Kelly (1992) 1 Cal.4th 495 , where the instruction (CALJIC No. 2.03) allowed the jury to infer consciousness of guilt from a defendant’s pretrial fabrications: “CALJIC No. 2.03 . . . not merely pinpoint evidence the jury may consider.

2008(See, e.g., People v. Boyette (2002) 29 Cal.4th 381, 438 [ 127 Cal.Rptr.2d 544 , 58 P.3d 391 ]; People v. Medina (1995) 11 Cal.4th 694, 762 [ 47 Cal.Rptr.2d 165 , 906 P.2d 2 ] (Medina); People v. Kelly (1992) 1 Cal.4th 495, 531-532 [ 3 Cal.Rptr.2d 677 , 822 P.2d 385 ].) Finally, we disagree that the instruction informed the jury that it could infer from defendant’s willfully false statements not only that he committed the crimes, but additionally that he harbored the mental states required for a finding of first degree murder, intent to commit a lewd act upon a child, and the related felony-mu

2013(People v. Carter (2003) 30 Cal.4th 1166, 1211 .) As the content of the unreported discussion in chambers may provide an explanation for defense counsel's failure to argue at the sentencing hearing in favor of concurrent sentences for some or all of the nonforcible lewd act counts, we reject — in the context of Torres's direct appeal — the contention that defense counsel offered ineffective assistance of counsel.

2011We repeatedly have rejected the contention that CALJIC No. 8.88 is “unconstitutional because it fails to instruct the jury that a single mitigating factor could outweigh multiple aggravating factors and by itself could justify a verdict of life imprisonment without the possibility of parole [citation] . . . .” (People v. D’Arcy (2010) 48 Cal.4th 257, 304 [ 106 Cal.Rptr.3d 459 , 226 P.3d 949 ] (D’Arcy).) We also have rejected the contention that the instruction fails to convey that the jury “may return a sentence of life imprisonment without the possibility of parole even in the complete absenc

2011We repeatedly have rejected the contention that CALJIC No. 8.88 is “unconstitutional because it fails to instruct the jury that a single mitigating factor could outweigh multiple aggravating factors and by itself could justify a verdict of life imprisonment without the possibility of parole [citation] . . . .” (People v. D’Arcy (2010) 48 Cal.4th 257, 304 [ 106 Cal.Rptr.3d 459 , 226 P.3d 949 ] (D’Arcy).) We also have rejected the contention that the instruction fails to convey that the jury “may return a sentence of life imprisonment without the possibility of parole even in the complete absenc

2011We repeatedly have rejected the contention that CALJIC No. 8.88 is “unconstitutional because it fails to instruct the jury that a single mitigating factor could outweigh multiple aggravating factors and by itself could justify a verdict of life imprisonment without the possibility of parole [citation] . . . .” (People v. D’Arcy (2010) 48 Cal.4th 257, 304 [ 106 Cal.Rptr.3d 459 , 226 P.3d 949 ] (D’Arcy).) We also have rejected the contention that the instruction fails to convey that the jury “may return a sentence of life imprisonment without the possibility of parole even in the complete absenc