equivalent instruction in California

2016The obligation to instruct the jury sua sponte ―on general principles of law relevant to the issues raised by the facts of the case before it . . . includes the duty to instruct on the effect to be given circumstantial evidence but only when circumstantial evidence is ‗substantially relied on for proof of guilt.‘ [Citation.] The instruction should not be given ‗when the problem of inferring guilt from a pattern of incriminating circumstances is not present.‘ ‖ (People v. Wiley (1976) 18 Cal.3d 162, 174 (Wiley).) As the court said 23 in People v. Bender (1945) 27 Cal.2d 164, 175 (Bender), in ex

2015The obligation to instruct the jury sua sponte ‘“on general principles of law relevant to the issues raised by the facts of the case before it. . . includes the duty to instruct on the effect to be given circumstantial evidence but only when circumstantial evidence is ‘substantially relied on for proof of guilt.’ [Citation.] The instruction should not be given ‘when the problem of inferring guilt from a pattern of incriminating circumstances is not present.’ ” (People v. Wiley (1976) 18 Cal.3d 162, 174 [ 133 Cal.Rptr. 135 , 554 P.2d 881 ] (Wiley), citation omitted.) As the court said in People

2016The obligation to instruct the jury sua sponte ―on general principles of law relevant to the issues raised by the facts of the case before it . . . includes the duty to instruct on the effect to be given circumstantial evidence but only when circumstantial evidence is ‗substantially relied on for proof of guilt.‘ [Citation.] The instruction should not be given ‗when the problem of inferring guilt from a pattern of incriminating circumstances is not present.‘ ‖ (People v. Wiley (1976) 18 Cal.3d 162, 174 (Wiley).) As the court said 23 in People v. Bender (1945) 27 Cal.2d 164, 175 (Bender), in ex

2015The obligation to instruct the jury sua sponte ‘“on general principles of law relevant to the issues raised by the facts of the case before it. . . includes the duty to instruct on the effect to be given circumstantial evidence but only when circumstantial evidence is ‘substantially relied on for proof of guilt.’ [Citation.] The instruction should not be given ‘when the problem of inferring guilt from a pattern of incriminating circumstances is not present.’ ” (People v. Wiley (1976) 18 Cal.3d 162, 174 [ 133 Cal.Rptr. 135 , 554 P.2d 881 ] (Wiley), citation omitted.) As the court said in People

1988On the contrary, Civil Code section 4600.5, subdivision (i), provides that “[a]ny order for joint custody may be modified or terminated upon the petition of one or both parents or on the court’s own motion if it is shown that the best interests of the child require modification or termination of the order”; and subdivision (d)(1) expressly defines “joint custody” as “joint physical custody and joint legal custody [italics added].” 1 While an alteration of legal custody may not necessarily be as disruptive as an alteration of physical custody, nevertheless, any change in parental involvement wi

1988On the contrary, Civil Code section 4600.5, subdivision (i), provides that “[a]ny order for joint custody may be modified or terminated upon the petition of one or both parents or on the court’s own motion if it is shown that the best interests of the child require modification or termination of the order”; and subdivision (d)(1) expressly defines “joint custody” as “joint physical custody and joint legal custody [italics added].” 1 While an alteration of legal custody may not necessarily be as disruptive as an alteration of physical custody, nevertheless, any change in parental involvement wi

2016(People v. Anderson (2001) 25 Cal.4th 543, 582 .) Thus, the instruction should not be given, for example, when circumstantial evidence is merely used to corroborate direct evidence.

2015(People v. Anderson (2001) 25 Cal.4th 543, 582 [ 106 Cal.Rptr.2d 575 , 22 P.3d 347 ].) Thus, the instruction should not be given, for example, when circumstantial evidence is merely used to corroborate direct evidence.

2023That rule, like the equivalent rule in California, had been justified on the basis of a “ ‘policy favoring arbitration.’ ” (Morgan, supra, 596 U.S. at p. 415 [ 142 S.Ct. at p. 1712 ].) The court disagreed with the idea that this policy required creating a special test for waiver of arbitration not applicable to any other contractual right.

2023That rule, like the equivalent rule in California, had been justified on the basis of a “ ‘policy favoring arbitration.’ ” (Morgan, supra, 596 U.S. at p. 415 [ 142 S.Ct. at p. 1712 ].) The court disagreed with the idea that this policy required creating a special test for waiver of arbitration not applicable to any other contractual right.

2021F. Hutton & Co. (1990) 217 Cal.App.3d 1463, 1471 [under section 1668, “a party may not contract away liability for fraudulent or intentional acts”]; Smith v. Rickards (1957) 149 Cal.App.2d 648, 653-654 [provision in purchase agreement stating “‘[b]uyer has personally examined said property and is familiar with its location and condition and is not relying upon any representation relating thereto’” did not bar buyer’s claim for fraud].) “[A] sale ‘as is’ is not the equivalent of a waiver of potential claims of misrepresentation. . . . [T]he ‘as is’ sale simply means the buyer accepts the proper

2021F. Hutton & Co. (1990) 217 Cal.App.3d 1463, 1471 [under section 1668, “a party may not contract away liability for fraudulent or intentional acts”]; Smith v. Rickards (1957) 149 Cal.App.2d 648, 653-654 [provision in purchase agreement stating “‘[b]uyer has personally examined said property and is familiar with its location and condition and is not relying upon any representation relating thereto’” did not bar buyer’s claim for fraud].) “[A] sale ‘as is’ is not the equivalent of a waiver of potential claims of misrepresentation. . . . [T]he ‘as is’ sale simply means the buyer accepts the proper

2015(People v. Horning (2004) 34 Cal.4th 871, 910 [“court should give the substance of CALJIC No. 2.20 in every criminal case, although it may omit factors that are inapplicable under the evidence”]; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883 [“the substance of the instruction set forth as CALJIC No. 2.20 should . . . always be given”].) In this case, we conclude that the trial court erred in failing to give CALJIC No. 2.20 or an equivalent instruction, but the error was harmless.

2015The requirement that the defendant take the car from the victim’s person or immediate presence “is similar to the equivalent requirement for robbery.” (People v. Johnson (2015) 60 Cal.4th 966, 989 (Johnson).) Something is within a person’s immediate presence for purposes of section 215 “if it is ‘“‘so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.’”’ [Citation.] ‘Under this definition, property may be found to be in the victim’s immediate presence “even though it is located in another room of t

2015(People v. Horning (2004) 34 Cal.4th 871, 910 [“court should give the substance of CALJIC No. 2.20 in every criminal case, although it may omit factors that are inapplicable under the evidence”]; People v. Rincon-Pineda (1975) 14 Cal.3d 864, 883 [“the substance of the instruction set forth as CALJIC No. 2.20 should . . . always be given”].) In this case, we conclude that the trial court erred in failing to give CALJIC No. 2.20 or an equivalent instruction, but the error was harmless.

2015The requirement that the defendant take the car from the victim’s person or immediate presence “is similar to the equivalent requirement for robbery.” (People v. Johnson (2015) 60 Cal.4th 966, 989 (Johnson).) Something is within a person’s immediate presence for purposes of section 215 “if it is ‘“‘so within his reach, inspection, observation or control, that he could, if not overcome by violence or prevented by fear, retain his possession of it.’”’ [Citation.] ‘Under this definition, property may be found to be in the victim’s immediate presence “even though it is located in another room of t

2014(Id. at p. 1226.) Indeed, this court in Letner quoted Mar’s graphic description of what a stun belt does to a person when activated and said “[t]here is no evidence that the leg brace worn by Letner created a remotely comparable level of potential pain, injury, and humiliation, such that Letner’s ability to concentrate and participate in the trial proceedings similarly might have been affected.” (Letner, supra, 50 Cal.4th at p. 156 .) Thus, our cases finding the invisible use of traditional restraints harmless in the absence of affirmative evidence that the defense was impaired do not suggest

2014(Id. at p. 1226.) Indeed, this court in Letner quoted Mar’s graphic description of what a stun belt does to a person when activated and said, “There is no evidence that the leg brace worn by Letner created a remotely comparable level of potential pain, injury, and humiliation, such that Letner’s ability to concentrate and participate in the trial proceedings similarly might have been affected.” (Letner, supra, 50 Cal.4th at p. 156.) Thus, our cases finding the invisible use of traditional restraints harmless in the absence of affirmative evidence that the defense was impaired do not suggest an

2013Appellant’s counsel is commendably forthright in acknowledging that the same contentions were rejected with reference to an equivalent instruction in People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 [upholding CALJIC No. 2.50.01], and with reference to CALCRIM No. 852 itself in People v. Johnson (2008) 164 Cal.App.4th 731, 739 (Cantil-Sakauye, J.).

2013Appellant’s counsel is commendably forthright in acknowledging that the same contentions were rejected with reference to an equivalent instruction in People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016 [upholding CALJIC No. 2.50.01], and with reference to CALCRIM No. 852 itself in People v. Johnson (2008) 164 Cal.App.4th 731, 739 (Cantil-Sakauye, J.).

2011If it owes any defense burden it must be fully borne [citation] with allocations of that burden among other responsible parties to be determined later.” (Ibid.; see also Eigner v. Worthington (1997) 57 Cal.App.4th 188, 196 [ 66 Cal.Rptr.2d 808 ] [“[w]hen an insurer wrongfully refuses to defend, the insured is relieved of his or her obligation to allow the insurer to manage the litigation and may proceed in whatever manner is deemed appropriate”]; Stalberg, supra, 230 Cal.App.3d at p. 1233 [when an insurer wrongfully denies a defense, it gives up the right to control the defense and cannot cond

2011The trial court properly treated Caliber One’s payment of defense fees at the end of the litigation “as the equivalent of a defense denial.” (Haskel, supra, 33 Cal.App.4th at p. 976, fn. 9 .) “Such a unilateral limitation of [Caliber One’s] responsibility is not justified.

2011If it owes any defense burden it must be fully borne [citation] with allocations of that burden among other responsible parties to be determined later.” (Ibid.; see also Eigner v. Worthington (1997) 57 Cal.App.4th 188, 196 [ 66 Cal.Rptr.2d 808 ] [“[w]hen an insurer wrongfully refuses to defend, the insured is relieved of his or her obligation to allow the insurer to manage the litigation and may proceed in whatever manner is deemed appropriate”]; Stalberg, supra, 230 Cal.App.3d at p. 1233 [when an insurer wrongfully denies a defense, it gives up the right to control the defense and cannot cond

2011If it owes any defense burden it must be fully borne [citation] with allocations of that burden among other responsible parties to be determined later.” (Ibid.; see also Eigner v. Worthington (1997) 57 Cal.App.4th 188, 196 [ 66 Cal.Rptr.2d 808 ] [“[w]hen an insurer wrongfully refuses to defend, the insured is relieved of his or her obligation to allow the insurer to manage the litigation and may proceed in whatever manner is deemed appropriate”]; Stalberg, supra, 230 Cal.App.3d at p. 1233 [when an insurer wrongfully denies a defense, it gives up the right to control the defense and cannot cond

2008C.).” The response then lists the documents being produced, and concludes: “Upon reviewing our records, we find we are not in possession of any additional documents that are responsive to Categories 3 or 4 or to any of the other four categories of documents in your request, or the documents we do have fall within statutory exemptions.” Plaintiff concedes that pursuant to the authority of Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1074-1075 [ 112 Cal.Rptr.2d 80 , 31 P.3d 760 ], defendants were not required to produce the equivalent of a privilege log, but argue defendants were required to

2008C.).” The response then lists the documents being produced, and concludes: “Upon reviewing our records, we find we are not in possession of any additional documents that are responsive to Categories 3 or 4 or to any of the other four categories of documents in your request, or the documents we do have fall within statutory exemptions.” Plaintiff concedes that pursuant to the authority of Haynie v. Superior Court (2001) 26 Cal.4th 1061, 1074-1075 [ 112 Cal.Rptr.2d 80 , 31 P.3d 760 ], defendants were not required to produce the equivalent of a privilege log, but argue defendants were required to