Neal test in California

2012In situations where it is debatable whether separate crimes arise from a single physical act, we have determined the applicability of section 654 by examining the “intent and objective of the actor” and prohibiting multiple punishment “[i]f all of the offenses were incident to one objective.” {Neal v. State of California (1960) 55 Cal.2d 11, 19 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ] {Neal).) The Neal test has been criticized.

2012In situations where it is debatable whether separate crimes arise from a single physical act, we have determined the applicability of section 654 by examining the “intent and objective of the actor” and prohibiting multiple punishment “[i]f all of the offenses were incident to one objective.” {Neal v. State of California (1960) 55 Cal.2d 11, 19 [ 9 Cal.Rptr. 607 , 357 P.2d 839 ] {Neal).) The Neal test has been criticized.

2022Corp. (1985) 174 Cal.App.3d 111, 124 , disapproved of by Lakin v. Watkins Associated Industries (1993) 6 Cal. 4th 644 .) Our Supreme Court has since ruled that the burden is on the plaintiff “rather than on the defendant” to introduce evidence of a defendant’s financial condition in making a punitive damages assessment. ( Adams, supra, 54 Cal.3d at pp. 108-109.) Additionally, both Oosterbaan and Greenfield predate our Supreme Court’s decision in Adams, in which the Court both clarified the burden of proof with respect to the Neal factors and stressed that an ability-to-pay analysis is of such

2022Corp. (1985) 174 Cal.App.3d 111, 124 , disapproved of by Lakin v. Watkins Associated Industries (1993) 6 Cal. 4th 644 .) Our Supreme Court has since ruled that the burden is on the plaintiff “rather than on the defendant” to introduce evidence of a defendant’s financial condition in making a punitive damages assessment. ( Adams, supra, 54 Cal.3d at pp. 108-109.) Additionally, both Oosterbaan and Greenfield predate our Supreme Court’s decision in Adams, in which the Court both clarified the burden of proof with respect to the Neal factors and stressed that an ability-to-pay analysis is of such

2013(Correa, supra, 54 Cal.4th at p. 344 .) Therefore, we continue to follow the Neal test, as it was the law at the time the crime was committed. 5 919, 935; People v. Beamon, supra, 8 Cal.3d at p. 639, fn. 11 .) "This is particularly so 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. [Citation.]" (People v. Gaio, supra, 81 Cal.App.4th at p. 935 .) 2.

2013(Correa, supra, 54 Cal.4th at p. 344 .) Therefore, we continue to follow the Neal test, as it was the law at the time the crime was committed. 5 919, 935; People v. Beamon, supra, 8 Cal.3d at p. 639, fn. 11 .) "This is particularly so 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. [Citation.]" (People v. Gaio, supra, 81 Cal.App.4th at p. 935 .) 2.

2016(E.g., People v. Coleman (1989) 48 Cal.3d 112 [assault of robbery victim had separate intent and objective than the robbery]; People v. Nguyen (1988) 204 Cal.App.3d 181 , 189–193, 196 [harming of unresisting robbery victim a separate objective from the robbery itself]; People v. Booth (1988) 201 Cal.App.3d 1499, 1502 [‘dual objectives of rape and theft when entering the victims’ residences’ supported separate punishment for burglaries and rapes]; People v. Porter (1987) 194 Cal.App.3d 34 , 37–39 [robbery and kidnapping the same victim for a later, additional, robbery had separate objectives].)

2015Over 30 years later, in People v. Latimer (1993) 5 Cal.4th 1203 , our Supreme Court criticized the Neal test as a " 'judicial gloss' . . . 'engrafted onto section 654' " that can defeat the statute’s purpose of matching punishment with culpability. ( Latimer, supra, at p. 1211 .) Nonetheless, the court in Latimer declined to overrule the Neal test because, over the course of three decades at that point, the Legislature had incorporated the Neal rule into California’s sentencing scheme. ( Latimer, supra, at p. 1205 .) In Latimer, the court "stressed, however, that 'nothing we say in this opinio

2016(E.g., People v. Coleman (1989) 48 Cal.3d 112 [assault of robbery victim had separate intent and objective than the robbery]; People v. Nguyen (1988) 204 Cal.App.3d 181 , 189–193, 196 [harming of unresisting robbery victim a separate objective from the robbery itself]; People v. Booth (1988) 201 Cal.App.3d 1499, 1502 [‘dual objectives of rape and theft when entering the victims’ residences’ supported separate punishment for burglaries and rapes]; People v. Porter (1987) 194 Cal.App.3d 34 , 37–39 [robbery and kidnapping the same victim for a later, additional, robbery had separate objectives].)

2012(People v. Perez, supra, 23 Cal.3d at p. 552 ; see Latimer, supra, 5 Cal.4th at p. 1216 [finding single objectives for kidnapping and rape even though “[i]t could be argued that defendant had two intents . . .”]; People v. Harrison (1989) 48 Cal.3d 321, 326, 334-338 [ 256 Cal.Rptr. 401 , 768 P.2d 1078 ] [rejecting defendant’s claim of single objective for multiple sexual offenses during an attack on a single victim lasting seven to 10 minutes].) The Neal test is not perfect, but we recognized its imperfections in Latimer and reaffirmed it anyway. ( Latimer, supra, 5 Cal.4th at pp. 1210-1211.)

2012(People v. Perez, supra, 23 Cal.3d at p. 552 ; see Latimer, supra, 5 Cal.4th at p. 1216 [finding single objectives for kidnapping and rape even though “[i]t could be argued that defendant had two intents . . .”]; People v. Harrison (1989) 48 Cal.3d 321, 326, 334-338 [ 256 Cal.Rptr. 401 , 768 P.2d 1078 ] [rejecting defendant’s claim of single objective for multiple sexual offenses during an attack on a single victim lasting seven to 10 minutes].) The Neal test is not perfect, but we recognized its imperfections in Latimer and reaffirmed it anyway. ( Latimer, supra, 5 Cal.4th at pp. 1210-1211.)

2012(People v. Perez, supra, 23 Cal.3d at p. 552 ; see Latimer, supra, 5 Cal.4th at p. 1216 [finding single objectives for kidnapping and rape even though “[i]t could be argued that defendant had two intents . . .”]; People v. Harrison (1989) 48 Cal.3d 321, 326, 334-338 [ 256 Cal.Rptr. 401 , 768 P.2d 1078 ] [rejecting defendant’s claim of single objective for multiple sexual offenses during an attack on a single victim lasting seven to 10 minutes].) The Neal test is not perfect, but we recognized its imperfections in Latimer and reaffirmed it anyway. ( Latimer, supra, 5 Cal.4th at pp. 1210-1211.)

2022Corp. (1985) 174 Cal.App.3d 111, 124 , disapproved of by Lakin v. Watkins Associated Industries (1993) 6 Cal. 4th 644 .) Our Supreme Court has since ruled that the burden is on the plaintiff “rather than on the defendant” to introduce evidence of a defendant’s financial condition in making a punitive damages assessment. ( Adams, supra, 54 Cal.3d at pp. 108-109.) Additionally, both Oosterbaan and Greenfield predate our Supreme Court’s decision in Adams, in which the Court both clarified the burden of proof with respect to the Neal factors and stressed that an ability-to-pay analysis is of such

2022Corp. (1985) 174 Cal.App.3d 111, 124 , disapproved of by Lakin v. Watkins Associated Industries (1993) 6 Cal. 4th 644 .) Our Supreme Court has since ruled that the burden is on the plaintiff “rather than on the defendant” to introduce evidence of a defendant’s financial condition in making a punitive damages assessment. ( Adams, supra, 54 Cal.3d at pp. 108-109.) Additionally, both Oosterbaan and Greenfield predate our Supreme Court’s decision in Adams, in which the Court both clarified the burden of proof with respect to the Neal factors and stressed that an ability-to-pay analysis is of such

2022We are allowed to consider the reasonableness of the award on the basis of its excessiveness alone: “[e]ven if an award is entirely reasonable in light of the other two factors in Neal, supra, 21 Cal.3d 910 . . . , the award can be so disproportionate to the defendant’s ability to pay that the award is excessive for that reason alone.” (Adams v. Murakami (1991) 54 Cal.3d 105, 111 (Adams), italics added; see also Zaxis Wireless Communications v. Motor Sound Corp. (2001) 89 Cal.App.4th 577, 582 (Zaxis) [“where neither the reprehensibility of the defendant’s conduct nor the magnitude of harm to t

2022We are allowed to consider the reasonableness of the award on the basis of its excessiveness alone: “[e]ven if an award is entirely reasonable in light of the other two factors in Neal, supra, 21 Cal.3d 910 . . . , the award can be so disproportionate to the defendant’s ability to pay that the award is excessive for that reason alone.” (Adams v. Murakami (1991) 54 Cal.3d 105, 111 (Adams), italics added; see also Zaxis Wireless Communications v. Motor Sound Corp. (2001) 89 Cal.App.4th 577, 582 (Zaxis) [“where neither the reprehensibility of the defendant’s conduct nor the magnitude of harm to t

1993Justice Schauer, the author of Brown and Chapman, supra, 43 Cal.2d 385 , disagreed sharply with the Neal test. ( Neal, supra, 55 Cal.2d 11, 21-26 (dis. opn. of Schauer, J.); Seiterle v. Superior Court (1962) 57 Cal.2d 397, 403-406 [ 20 Cal.Rptr. 1 , 369 P.2d 697 ] (conc. & dis. opn. of Schauer, J.); People v. McFarland (1962) 58 Cal.2d 748, 763-784 [ 26 Cal.Rptr. 473 , 376 P.2d 449 ] (conc. & dis. opn. of Schauer, J.).) With more justification, Justice Schauer referred to the test superseded by Neal as the “Chapman-Brown rule.” (Seiterle v. Superior Court, supra, 57 Cal.2d 397, 404 (conc. & di

1993Justice Schauer, the author of Brown and Chapman, supra, 43 Cal.2d 385 , disagreed sharply with the Neal test. ( Neal, supra, 55 Cal.2d 11, 21-26 (dis. opn. of Schauer, J.); Seiterle v. Superior Court (1962) 57 Cal.2d 397, 403-406 [ 20 Cal.Rptr. 1 , 369 P.2d 697 ] (conc. & dis. opn. of Schauer, J.); People v. McFarland (1962) 58 Cal.2d 748, 763-784 [ 26 Cal.Rptr. 473 , 376 P.2d 449 ] (conc. & dis. opn. of Schauer, J.).) With more justification, Justice Schauer referred to the test superseded by Neal as the “Chapman-Brown rule.” (Seiterle v. Superior Court, supra, 57 Cal.2d 397, 404 (conc. & di

2000Exchange (1978) 21 Cal.3d 910, 928 , 148 Cal.Rptr. 389 , 582 P.2d 980, fn. 13 ( Neal ).) In Neal , we set forth three factors relevant to the assessment of punitive damages: (1) the degree of reprehensibility of the act; (2) the amount of compensatory damages awarded; and (3) the wealth of the particular defendant. ( Neal, supra, 21 Cal.3d at p. 928 , 148 Cal.Rptr. 389 , 582 P.2d 980 .) The concurring opinion proposes to fix a "soft" ceiling on punitive damages by using only one of the three Neal factors — the amount of compensatory damages.

2000(Neal, supra, 21 Cal.3d at p. 928 .) The concurring opinion proposes to fix a “soft” ceiling on punitive damages by using only one of the three Neal factors—the amount of compensatory damages.

1998As was noted in In re William S. (1989) 208 Cal.App.3d 313, 317 [ 256 Cal.Rptr. 64 ], a more useful test for determining the separateness of alleged multiple burglaries for purposes of section 654 is whether the defendant had the opportunity to reflect after the first entry, and nevertheless entered the premises again.

1998As was noted in In re William S. (1989) 208 Cal.App.3d 313, 317 [ 256 Cal.Rptr. 64 ], a more useful test for determining the separateness of alleged multiple burglaries for purposes of section 654 is whether the defendant had the opportunity to reflect after the first entry, and nevertheless entered the premises again.

1995(People v. Hernandez (1988) 46 Cal.3d 194 [ 249 Cal.Rptr. 850 , 757 P.2d 1013 ].) Its existence, however, substantially affects our ability to effectively overrule the Neal rule in this specific application.

1995(People v. Hernandez (1988) 46 Cal.3d 194 [ 249 Cal.Rptr. 850 , 757 P.2d 1013 ].) Its existence, however, substantially affects our ability to effectively overrule the Neal rule in this specific application.

1993(E.g., People v. Harrison (1989) 48 Cal.3d 321, 335 [ 256 Cal.Rptr. 401 , 768 P.2d 1078 ] [“[w]e have traditionally observed” the Neal test]; People v. Perez (1979) 23 Cal.3d 545, 550-554 [ 153 Cal.Rptr. 40 , 591 P.2d 63 ] [different sex offenses were committed with separate intents and objectives, so could be punished separately]; People v. Beamon, supra, 8 Cal.3d 625, 636-640 [multiple punishment for kidnapping and robbery is impermissible where only one intent and objective]; People v. Bauer (1969) 1 Cal.3d 368, 375-378 [ 82 Cal.Rptr. 357 , 461 P.2d 637 , 37 A.L.R.3d 1398 ] [multiple punish

1993(E.g., People v. Harrison (1989) 48 Cal.3d 321, 335 [ 256 Cal.Rptr. 401 , 768 P.2d 1078 ] [“[w]e have traditionally observed” the Neal test]; People v. Perez (1979) 23 Cal.3d 545, 550-554 [ 153 Cal.Rptr. 40 , 591 P.2d 63 ] [different sex offenses were committed with separate intents and objectives, so could be punished separately]; People v. Beamon, supra, 8 Cal.3d 625, 636-640 [multiple punishment for kidnapping and robbery is impermissible where only one intent and objective]; People v. Bauer (1969) 1 Cal.3d 368, 375-378 [ 82 Cal.Rptr. 357 , 461 P.2d 637 , 37 A.L.R.3d 1398 ] [multiple punish

2016(E.g., People v. Coleman (1989) 48 Cal.3d 112 [assault of robbery victim had separate intent and objective than the robbery]; People v. Nguyen (1988) 204 Cal.App.3d 181 , 189–193, 196 [harming of unresisting robbery victim a separate objective from the robbery itself]; People v. Booth (1988) 201 Cal.App.3d 1499, 1502 [‘dual objectives of rape and theft when entering the victims’ residences’ supported separate punishment for burglaries and rapes]; People v. Porter (1987) 194 Cal.App.3d 34 , 37–39 [robbery and kidnapping the same victim for a later, additional, robbery had separate objectives].)

2016(People v. Trotter (1992) 7 Cal.App.4th 363, 368 (Trotter).) Indeed, the Supreme Court has recently determined that “section 654 does not bar multiple punishment for multiple violations of the same criminal statute,” disapproving what it characterized as “dictum” in Neal.

2013The court stated that contrary to precedent, it would follow "the language and purpose of section 654" which "counsel against applying it to bar multiple punishment for violations of the same provision of law." (Id. at pp. 340-341; see also People v. Sanders, supra, 55 Cal. 4th at p. 743 [simultaneous possession of two firearms can be punished separately].) However, the court noted that its ruling applies prospectively only.

2013The court stated that contrary to precedent, it would follow "the language and purpose of section 654" which "counsel against applying it to bar multiple punishment for violations of the same provision of law." (Id. at pp. 340-341; see also People v. Sanders, supra, 55 Cal. 4th at p. 743 [simultaneous possession of two firearms can be punished separately].) However, the court noted that its ruling applies prospectively only.

2012(See, e.g., People v. Oates (2004) 32 Cal.4th 1048, 1063 [ 12 Cal.Rptr.3d 325 , 88 P.3d 56 ] (Oates); Latimer, supra, 5 Cal.4th at p. 1211 ; People v. Perez (1979) 23 Cal.3d 545, 550-551 [ 153 Cal.Rptr. 40 , 591 P.2d 63 ] (Perez); Neal, supra, 55 Cal.2d at p. 20 .) We have also observed that “[t]he Neal test does not, however, so ensure.

2012(See, e.g., People v. Oates (2004) 32 Cal.4th 1048, 1063 [ 12 Cal.Rptr.3d 325 , 88 P.3d 56 ] (Oates); Latimer, supra, 5 Cal.4th at p. 1211 ; People v. Perez (1979) 23 Cal.3d 545, 550-551 [ 153 Cal.Rptr. 40 , 591 P.2d 63 ] (Perez); Neal, supra, 55 Cal.2d at p. 20 .) We have also observed that “[t]he Neal test does not, however, so ensure.

2012Instead, the court unanimously reaffirmed Neal on the ground that “[t]he Legislature has enacted substantial legislation reflecting its acceptance of the Neal rule.” {Id. at p. 1214; see id. at p. 1216 [“The Neal rule . . . has influenced so much subsequent legislation that stare decisis mandates adherence to it.”]; see also id. at p. 1217 (conc. opn. of Mosk, J.) [“I do not join in the criticism of Neal. . . .”].) Given the court’s unanimity in reaffirming the Neal test as well as our application of Neal to prohibit multiple punishment in Latimer {id. at p. 1216) and again as recently as 2004

2012Instead, the court unanimously reaffirmed Neal on the ground that “[t]he Legislature has enacted substantial legislation reflecting its acceptance of the Neal rule.” {Id. at p. 1214; see id. at p. 1216 [“The Neal rule . . . has influenced so much subsequent legislation that stare decisis mandates adherence to it.”]; see also id. at p. 1217 (conc. opn. of Mosk, J.) [“I do not join in the criticism of Neal. . . .”].) Given the court’s unanimity in reaffirming the Neal test as well as our application of Neal to prohibit multiple punishment in Latimer {id. at p. 1216) and again as recently as 2004

2007(ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1269 [ 35 Cal.Rptr.3d 343 ] (ASP).) “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ.

2007(ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1269 [ 35 Cal.Rptr.3d 343 ] (ASP).) “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ.