elements-based analysis in California

2016The 9 Ninth Circuit affirmed, and held “that when a sentencing court considers a conviction under . . . [a] statute that is ‘categorically broader than the generic offense,’—the court may scrutinize certain documents to determine the factual basis of the conviction.” (Id. at p. ___ [ 186 L.Ed.2d at p. 450-451 ].) The Ninth Circuit approach permitted an examination of “reliable materials” to determine “ ‘what facts’ ” can “ ‘confident[ly]’ be thought to underlie the defendant’s conviction in light of the ‘prosecutorial theory of the case’ and the ‘facts put forward by the government.’ ” (Id. at

2016The 9 Ninth Circuit affirmed, and held “that when a sentencing court considers a conviction under . . . [a] statute that is ‘categorically broader than the generic offense,’—the court may scrutinize certain documents to determine the factual basis of the conviction.” (Id. at p. ___ [ 186 L.Ed.2d at p. 450-451 ].) The Ninth Circuit approach permitted an examination of “reliable materials” to determine “ ‘what facts’ ” can “ ‘confident[ly]’ be thought to underlie the defendant’s conviction in light of the ‘prosecutorial theory of the case’ and the ‘facts put forward by the government.’ ” (Id. at

2026(See Homick, supra, 55 Cal.4th at pp. 844-845 [“A prior prosecution is not ‘founded’ or ‘based,’ within the meaning of section 656, on every piece of conduct shown by the evidence at the earlier trial”].) Attempted Premeditated Murder – The Elements Using this same elements-based analysis, I would conclude the elements necessary to prove that the attempted murder was “willful, deliberate, and premeditated” as charged in count 1 of the state court action differ from those required to prove the federal assault for which DePape was convicted; therefore, section 656 does not preclude prosecution i

2021(Id. at pp. 435-436; see Navellier v. Sletten (2002) 29 Cal.4th 82, 90-92 (Navellier).) The Moss Brothers court further explained that its conclusion was consistent with the Supreme Court’s elements-based analysis in Park, supra, 2 Cal.5th 1057 because: (1) the employer’s lawsuit was based on the employee’s “protected act of filing the complaint” against the employer’s agent because the employee’s act of filing his complaint constituted the entire basis of the employer’s singular breach of contract claim; (2) the employee’s act of filing his complaint did more than merely provide evidentiary s

2021Howe court, disagreeing with our analysis of the first ground for our first-step holding, rejected indemnitors’ contention that cross-claims seeking defense and indemnity in the indemnitors’ litigation arose from that underlying litigation. [Citation.] But the court proceeded to expressly distinguish its opinion from ours on the second ground for our first-step holding, viz., our conclusion that Williams LLC’s refusal to defend and indemnify the District—from which the District’s crossclaims concededly arose—was protected conduct in furtherance of petitioning activity in connection with an iss

2021Howe court, disagreeing with our analysis of the first ground for our first-step holding, rejected indemnitors’ contention that cross-claims seeking defense and indemnity in the indemnitors’ litigation arose from that underlying litigation. [Citation.] But the court proceeded to expressly distinguish its opinion from ours on the second ground for our first-step holding, viz., our conclusion that Williams LLC’s refusal to defend and indemnify the District—from which the District’s crossclaims concededly arose—was protected conduct in furtherance of petitioning activity in connection with an iss

2016This is an inquiry that is quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court.” (McGee, supra, at p. 706 .) In sum, “[t]o qualify as a serious felony, a conviction from another jurisdiction must involve conduct that would qualify as a serious felony in California.” (People v. Avery (2002) 27 Cal.4th 49, 53 [ 115 Cal.Rptr.2d 403 , 38 P.3d 1 ].) Moreover, to the extent this inquiry transcends an elements-based analysis and spills over into an examination of the record of the prior conviction, McGee prohibits th

2015The Ninth Circuit affirmed, and, relying on its decision in U.S. v. Aguila-Montes de Oca (9th Cir. 2011) 655 F.3d 915, 940 , held “that when a sentencing court considers a conviction under ... [a] statute that is ‘categorically broader than the generic offense’ — the court may scrutinize certain documents to determine the factual basis of the conviction.” (Descamps, supra, 570 U.S. at p. _ [133 S.Ct. at pp. 2282-2283].) The Supreme Court reversed, holding that this kind of factfinding was impermissible because it “turns an elements-based inquiry into an evidence-based one.” (Id. at p. _ [ 133