selection rule in California

2023(See Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [“Questions of law relate to the selection of a rule; their resolution is reviewed independently.”].) As we explain, assuming without deciding that the trial court permissibly upheld Reyes’s murder conviction on a theory that was not presented at trial, its conclusion that Reyes’s conviction was sustainable on a direct perpetrator theory was not supported by substantial evidence.

2019(Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [“Questions of law relate to the selection of a rule; their resolution is reviewed independently.”].) Similarly, constitutional issues are reviewed de novo.

2002Standard of review “Questions of fact concern the establishment of historical or physical facts; their resolution is reviewed under the substantial-evidence test.” (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [ 264 Cal.Rptr. 139 , 782 P.2d 278 ].) Thus, for example, “a trial court’s finding that a particular item is separate or community property is limited to a determination of whether any substantial evidence supports the finding.” (In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 849 [ 21 Cal.Rptr.2d 642 ].) “Questions of law relate to the selectio

2002Standard of review “Questions of fact concern the establishment of historical or physical facts; their resolution is reviewed under the substantial-evidence test.” (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [ 264 Cal.Rptr. 139 , 782 P.2d 278 ].) Thus, for example, “a trial court’s finding that a particular item is separate or community property is limited to a determination of whether any substantial evidence supports the finding.” (In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 849 [ 21 Cal.Rptr.2d 642 ].) “Questions of law relate to the selectio

2018See Kennedy/Jenks Consultants, Inc. v. Superior Court (2000) 80 Cal.App.4th 948 , 959, 95 Cal.Rptr.2d 817 ["Questions of law relate to the selection of a rule" and are reviewed de novo]; Dow AgroSciences LLC v. Superior Court (2017) 16 Cal.App.5th 1067 , 1076, 224 Cal.Rptr.3d 761 [in case involving power to transfer where action filed in improper court, de novo review is appropriate where the statute is applied to undisputed facts].

2018See Kennedy/Jenks Consultants, Inc. v. Superior Court (2000) 80 Cal.App.4th 948 , 959, 95 Cal.Rptr.2d 817 ["Questions of law relate to the selection of a rule" and are reviewed de novo]; Dow AgroSciences LLC v. Superior Court (2017) 16 Cal.App.5th 1067 , 1076, 224 Cal.Rptr.3d 761 [in case involving power to transfer where action filed in improper court, de novo review is appropriate where the statute is applied to undisputed facts].

2020In Ettefagh, the First District described those principles: “As our Supreme Court has observed, the selection of a standard of proof reflects the significance our society attaches to a given issue. ‘ “The function of a standard of proof ... is to ‘instruct the factfinder concerning the degree of confidence our society thinks [the factfinder] should have in the correctness of factual conclusions for a particular type of adjudication.’ [Citation.] The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” ’

2007An Analysis of the Interests at Risk As our Supreme Court has observed, the selection of a standard of proof reflects the significance our society attaches to a given issue. “ ‘The function of a standard of proof ... is to “instruct the factfinder concerning the degree of confidence our society thinks [the factfinder] should have in the correctness of factual conclusions for a particular type of adjudication.” [Citation.] The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.’ ” (Weiner v. Fleischman, s

2012We agree with defendant. “ ‘Questions of law relate to the selection of a rule; their resolution is reviewed independently.’ ” (Haworth v. Superior Court (2010) 50 Cal.4th 372, 384 [ 112 Cal.Rptr.3d 853 , 235 P.3d 152 ], quoting Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [ 264 Cal.Rptr. 139 , 782 P.2d 278 ].) The parties primarily exposit Estate of Taylor (1967) 66 Cal.2d 855 [ 59 Cal.Rptr. 437 , 428 P.2d 301 ] (Taylor), Estate of Germond (1971) 4 Cal.3d 573 [ 94 Cal.Rptr. 153 , 483 P.2d 769 ] (Germond), and Estate of Justesen (1999) 77 Cal.App.4th 352

2012We agree with defendant. “ ‘Questions of law relate to the selection of a rule; their resolution is reviewed independently.’ ” (Haworth v. Superior Court (2010) 50 Cal.4th 372, 384 [ 112 Cal.Rptr.3d 853 , 235 P.3d 152 ], quoting Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [ 264 Cal.Rptr. 139 , 782 P.2d 278 ].) The parties primarily exposit Estate of Taylor (1967) 66 Cal.2d 855 [ 59 Cal.Rptr. 437 , 428 P.2d 301 ] (Taylor), Estate of Germond (1971) 4 Cal.3d 573 [ 94 Cal.Rptr. 153 , 483 P.2d 769 ] (Germond), and Estate of Justesen (1999) 77 Cal.App.4th 352

2020In Ettefagh, the First District described those principles: “As our Supreme Court has observed, the selection of a standard of proof reflects the significance our society attaches to a given issue. ‘ “The function of a standard of proof ... is to ‘instruct the factfinder concerning the degree of confidence our society thinks [the factfinder] should have in the correctness of factual conclusions for a particular type of adjudication.’ [Citation.] The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” ’

2007An Analysis of the Interests at Risk As our Supreme Court has observed, the selection of a standard of proof reflects the significance our society attaches to a given issue. “ ‘The function of a standard of proof ... is to “instruct the factfinder concerning the degree of confidence our society thinks [the factfinder] should have in the correctness of factual conclusions for a particular type of adjudication.” [Citation.] The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.’ ” (Weiner v. Fleischman, s

2018See Kennedy/Jenks Consultants, Inc. v. Superior Court (2000) 80 Cal.App.4th 948 , 959, 95 Cal.Rptr.2d 817 ["Questions of law relate to the selection of a rule" and are reviewed de novo]; Dow AgroSciences LLC v. Superior Court (2017) 16 Cal.App.5th 1067 , 1076, 224 Cal.Rptr.3d 761 [in case involving power to transfer where action filed in improper court, de novo review is appropriate where the statute is applied to undisputed facts].

2018See Kennedy/Jenks Consultants, Inc. v. Superior Court (2000) 80 Cal.App.4th 948 , 959, 95 Cal.Rptr.2d 817 ["Questions of law relate to the selection of a rule" and are reviewed de novo]; Dow AgroSciences LLC v. Superior Court (2017) 16 Cal.App.5th 1067 , 1076, 224 Cal.Rptr.3d 761 [in case involving power to transfer where action filed in improper court, de novo review is appropriate where the statute is applied to undisputed facts].

1966The Franchise Tax Board is given discretion in the selection of the factors to be utilized in a tax formula (El Dorado Oil Works v. McColgan, 34 Cal.2d 731, 736 [ 215 P.2d 4 ]) and where, as here, the taxpayer contends that the formula is arbitrary and reaches an unreasonable result, the burden is on the taxpayer to establish such facts by clear and convincing evidence.

1966The Franchise Tax Board is given discretion in the selection of the factors to be utilized in a tax formula (El Dorado Oil Works v. McColgan, 34 Cal.2d 731, 736 [ 215 P.2d 4 ]) and where, as here, the taxpayer contends that the formula is arbitrary and reaches an unreasonable result, the burden is on the taxpayer to establish such facts by clear and convincing evidence.

2025Co. v. Garamendi (1994) 8 Cal.4th 216, 271 [“ ‘[q]uestions of law relate to the selection of a rule; their resolution is reviewed independently’ ”].) 3 Appellant County did not participate in the proceedings below.

2023(See In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 95 [finding that a wife’s argument on appeal that California law permits only two tracing methods to overcome the presumption that property acquired during marriage is community property is a legal issue or a mixed issue in which the legal issue predominates and subject to de novo review].) B.

2022Under these circumstances, Mother maintained “regular visitation and contact with the child[ren]” (§ 366.26, subd. (c)(1)(B)(i)), “taking into account ‘the extent permitted by court orders.’” (Caden C., supra, 11 Cal.5th at p. 632; cf. In re J.C. (2014) 226 Cal.App.4th 503, 531 [visitation not regular where the mother missed five visits in the six weeks preceding the selection hearing and there was a “troubling manner of [m]other’s cancellations and pattern of changing her plans last minute”]; In re C.F. (2011) 193 Cal.App.4th 549, 554 [visitation not regular where “overall [the mother’s] visi

2022Under these circumstances, Mother maintained “regular visitation and contact with the child[ren]” (§ 366.26, subd. (c)(1)(B)(i)), “taking into account ‘the extent permitted by court orders.’” (Caden C., supra, 11 Cal.5th at p. 632; cf. In re J.C. (2014) 226 Cal.App.4th 503, 531 [visitation not regular where the mother missed five visits in the six weeks preceding the selection hearing and there was a “troubling manner of [m]other’s cancellations and pattern of changing her plans last minute”]; In re C.F. (2011) 193 Cal.App.4th 549, 554 [visitation not regular where “overall [the mother’s] visi

2020In Ettefagh, the First District described those principles: “As our Supreme Court has observed, the selection of a standard of proof reflects the significance our society attaches to a given issue. ‘ “The function of a standard of proof ... is to ‘instruct the factfinder concerning the degree of confidence our society thinks [the factfinder] should have in the correctness of factual conclusions for a particular type of adjudication.’ [Citation.] The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.” ’

2011Standard of Review A trial court’s reading of decisional law entails the resolution of a pure question of law, in that it “ ‘relate[s] to the selection of a rule.’ [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 [ 107 Cal.Rptr.2d 841 , 24 P.3d 493 ].) “[T]o make an application of decisional law . . . entails the resolution of a mixed question of law and fact that is predominantly one of law, inasmuch as it ‘requires a critical consideration, in a factual context, of legal principles and their underlying values’ rather than merely ‘experience with human affairs.’ [Cit

2011Standard of Review A trial court’s reading of decisional law entails the resolution of a pure question of law, in that it “ ‘relate[s] to the selection of a rule.’ [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 [ 107 Cal.Rptr.2d 841 , 24 P.3d 493 ].) “[T]o make an application of decisional law . . . entails the resolution of a mixed question of law and fact that is predominantly one of law, inasmuch as it ‘requires a critical consideration, in a factual context, of legal principles and their underlying values’ rather than merely ‘experience with human affairs.’ [Cit

2009Code, § 353 [an objection to the admission of evidence must be timely and clearly specify the basis of the objection]; see also People v. Geier (2007) 41 Cal.4th 555, 610-611 [ 61 Cal.Rptr.3d 580 , 161 P.3d 104 ] [defendant’s failure to timely object to the admissibility of the population frequency statistics associated with the DNA test results forfeited the issue on appeal]; People v. Ochoa (1998) 19 Cal.4th 353, 414 [ 79 Cal.Rptr.2d 408 , 966 P.2d 442 ] [a failure to object at trial to the admission of evidence under Kelly forfeits the claim for appeal]; People v. Coleman (1988) 46 Cal.3d 7

2009Code, § 353 [an objection to the admission of evidence must be timely and clearly specify the basis of the objection]; see also People v. Geier (2007) 41 Cal.4th 555, 610-611 [ 61 Cal.Rptr.3d 580 , 161 P.3d 104 ] [defendant’s failure to timely object to the admissibility of the population frequency statistics associated with the DNA test results forfeited the issue on appeal]; People v. Ochoa (1998) 19 Cal.4th 353, 414 [ 79 Cal.Rptr.2d 408 , 966 P.2d 442 ] [a failure to object at trial to the admission of evidence under Kelly forfeits the claim for appeal]; People v. Coleman (1988) 46 Cal.3d 7

2009Code, § 353 [an objection to the admission of evidence must be timely and clearly specify the basis of the objection]; see also People v. Geier (2007) 41 Cal.4th 555, 610-611 [ 61 Cal.Rptr.3d 580 , 161 P.3d 104 ] [defendant’s failure to timely object to the admissibility of the population frequency statistics associated with the DNA test results forfeited the issue on appeal]; People v. Ochoa (1998) 19 Cal.4th 353, 414 [ 79 Cal.Rptr.2d 408 , 966 P.2d 442 ] [a failure to object at trial to the admission of evidence under Kelly forfeits the claim for appeal]; People v. Coleman (1988) 46 Cal.3d 7

2009Code, § 353 [an objection to the admission of evidence must be timely and clearly specify the basis of the objection]; see also People v. Geier (2007) 41 Cal.4th 555, 610-611 [ 61 Cal.Rptr.3d 580 , 161 P.3d 104 ] [defendant’s failure to timely object to the admissibility of the population frequency statistics associated with the DNA test results forfeited the issue on appeal]; People v. Ochoa (1998) 19 Cal.4th 353, 414 [ 79 Cal.Rptr.2d 408 , 966 P.2d 442 ] [a failure to object at trial to the admission of evidence under Kelly forfeits the claim for appeal]; People v. Coleman (1988) 46 Cal.3d 7

2009Code, § 353 [an objection to the admission of evidence must be timely and clearly specify the basis of the objection]; see also People v. Geier (2007) 41 Cal.4th 555, 610-611 [ 61 Cal.Rptr.3d 580 , 161 P.3d 104 ] [defendant’s failure to timely object to the admissibility of the population frequency statistics associated with the DNA test results forfeited the issue on appeal]; People v. Ochoa (1998) 19 Cal.4th 353, 414 [ 79 Cal.Rptr.2d 408 , 966 P.2d 442 ] [a failure to object at trial to the admission of evidence under Kelly forfeits the claim for appeal]; People v. Coleman (1988) 46 Cal.3d 7

2009Code, § 353 [an objection to the admission of evidence must be timely and clearly specify the basis of the objection]; see also People v. Geier (2007) 41 Cal.4th 555, 610-611 [ 61 Cal.Rptr.3d 580 , 161 P.3d 104 ] [defendant’s failure to timely object to the admissibility of the population frequency statistics associated with the DNA test results forfeited the issue on appeal]; People v. Ochoa (1998) 19 Cal.4th 353, 414 [ 79 Cal.Rptr.2d 408 , 966 P.2d 442 ] [a failure to object at trial to the admission of evidence under Kelly forfeits the claim for appeal]; People v. Coleman (1988) 46 Cal.3d 7

2007(In re Marriage of Peters, supra, 52 Cal.App.4th at p. 1490 .) “ ‘Any other standard expresses a preference for one side’s interests’ ” (Weiner v. Fleischman, supra, 54 Cal.3d at p. 488 , quoting Herman & MacLean v. Huddleston (1983) 459 U.S. 375, 390 [ 74 L.Ed.2d 548 , 103 S.Ct. 683 ]), and the clear and convincing standard is imposed in those cases in which particularly important individual interests or rights are at stake.

2007(In re Marriage of Peters, supra, 52 Cal.App.4th at p. 1490 .) “ ‘Any other standard expresses a preference for one side’s interests’ ” (Weiner v. Fleischman, supra, 54 Cal.3d at p. 488 , quoting Herman & MacLean v. Huddleston (1983) 459 U.S. 375, 390 [ 74 L.Ed.2d 548 , 103 S.Ct. 683 ]), and the clear and convincing standard is imposed in those cases in which particularly important individual interests or rights are at stake.