retrospective hearing in California

2021In Rodas, we said so explicitly: “The burden of proof in a retrospective hearing is on the defendant . . . .” (Rodas, supra, 6 Cal.5th at p. 240 .) Similarly, in Lightsey, we said that “a retrospective competency hearing [must] provide defendant a fair opportunity to prove incompetence.” (Lightsey, supra, 54 Cal.4th at p. 710 , italics omitted.) And in Ary, we said that “requiring a criminal defendant to prove at a retrospective mental competency hearing that he was incompetent when tried earlier does not ‘ “offend[] some principle of justice so rooted in the traditions and conscience of our p

2018The prosecution had the burden of persuasion to show "a retrospective competency hearing would provide [Galaviz] a fair opportunity to prove incompetence" as opposed to showing "merely whether some evidence exists by which the trier of fact might reach a decision on the subject." ( Lightsey, supra, 54 Cal.4th at p. 710 , 143 Cal.Rptr.3d 589 , 279 P.3d 1072 .) Viewing the totality of the circumstances, including the above-analyzed feasibility factors combined with Galaviz's *512 history of severe mental illness and mental incompetence, we conclude the prosecution failed to carry its burden to s

2021In Rodas, we said so explicitly: “The burden of proof in a retrospective hearing is on the defendant . . . .” (Rodas, supra, 6 Cal.5th at p. 240 .) Similarly, in Lightsey, we said that “a retrospective competency hearing [must] provide defendant a fair opportunity to prove incompetence.” (Lightsey, supra, 54 Cal.4th at p. 710 , italics omitted.) And in Ary, we said that “requiring a criminal defendant to prove at a retrospective mental competency hearing that he was incompetent when tried earlier does not ‘ “offend[] some principle of justice so rooted in the traditions and conscience of our p

2018As we have previously explained, the critical question in determining whether a retrospective competency hearing is feasible is whether there is "sufficient evidence to *240 reliably determine the defendant's mental competence when tried earlier." ( Ary II , supra , 51 Cal.4th at p. 520 , 120 Cal.Rptr.3d 431 , 246 P.3d 322 , italics added.) The burden of proof in a retrospective hearing is on the defendant, and feasibility requires finding that such a hearing "will provide defendant a fair opportunity to prove incompetence, not merely [that] some evidence exists by which the trier of fact migh

2016We agree with the court in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303 , in finding no requirement of pleading and proof for factors of ineligibility in retrospective examination of third strike sentences.

2014We agree with 7 the court in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279, 1303 , in finding no requirement of pleading and proof for factors of ineligibility in retrospective examination of third strike sentences.

2023Cal. 1994) 843 F.Supp. 597, 606 ; accord, Melugin v. Zurich Canada (1996) 50 Cal.App.4th 658, 665 [citing Save Mart Supermarkets with approval].) A plaintiff may prove disparate impact discrimination without showing the employer had an intent to discriminate—instead, the plaintiff must show “that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20 ; accord, Mahler v. Judicial C

2023Cal. 1994) 843 F.Supp. 597, 606 ; accord, Melugin v. Zurich Canada (1996) 50 Cal.App.4th 658, 665 [citing Save Mart Supermarkets with approval].) A plaintiff may prove disparate impact discrimination without showing the employer had an intent to discriminate—instead, the plaintiff must show “that regardless of motive, a facially neutral employer practice or policy, bearing no manifest relationship to job requirements, in fact had a disproportionate adverse effect on members of the protected class.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354, fn. 20 ; accord, Mahler v. Judicial C

2023Similarly, a plaintiff may prevail under Labor Code section 1102.5 even if the employer had good reason to believe the activity in which it ordered the plaintiff to engage was lawful, so long as, in retrospect, a court determines the activity was in fact unlawful.9 9 We recognize an employer might institute an ostensibly neutral policy or practice with the intention of disproportionately impacting a protected group, just as an employer might 23 Applying section 533 in our scenario also would not comport with section 533’s purpose “to prevent insurance coverage from encouragement of wilful tort

2023Similarly, a plaintiff may prevail under Labor Code section 1102.5 even if the employer had good reason to believe the activity in which it ordered the plaintiff to engage was lawful, so long as, in retrospect, a court determines the activity was in fact unlawful.9 9 We recognize an employer might institute an ostensibly neutral policy or practice with the intention of disproportionately impacting a protected group, just as an employer might 23 Applying section 533 in our scenario also would not comport with section 533’s purpose “to prevent insurance coverage from encouragement of wilful tort

2018This included the Court of Appeal in People v. Ary (2004) 118 Cal.App.4th 1016 , 1029, 13 Cal.Rptr.3d 482 ( Ary I ), which remanded to the trial court to determine whether a retrospective hearing was feasible where the record contained "extensive expert testimony and evidence ... regarding defendant's mental retardation and his ability to function in the legal arena" at the time of his disputed competence.

2018This included the Court of Appeal in People v. Ary (2004) 118 Cal.App.4th 1016 , 1029, 13 Cal.Rptr.3d 482 ( Ary I ), which remanded to the trial court to determine whether a retrospective hearing was feasible where the record contained "extensive expert testimony and evidence ... regarding defendant's mental retardation and his ability to function in the legal arena" at the time of his disputed competence.

2011We now turn to that issue. in According to the Court of Appeal majority here, “placement of the burden of proof will be the determinative factor in most cases in which competency is determined ex post facto,” and given that burden, a criminal defendant “will rarely, if ever, be able to sustain it.” In the majority’s view, assigning to a defendant at a postjudgment mental competency hearing the burden of proving he was mentally incompetent when tried is “inconsistent with the fundamental fairness implicit in the constitutional concept of due process.” The Court of Appeal majority therefore conc

2011III According to the Court of Appeal majority here, "placement of the burden of proof will be the determinative factor in most cases in which competency is determined ex post facto," and given that burden, a criminal defendant "will rarely, if ever, be able to sustain it." In the majority's view, assigning to a defendant at a postjudgment mental competency hearing the burden of proving he was mentally incompetent when tried is "inconsistent with the fundamental fairness implicit in the constitutional concept of due process." The Court of Appeal majority therefore concluded that at a retrospect

2009Mindful that "[i]n all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome" ( Speiser v. Randall (1958) 357 U.S. 513, 525 [ 2 L.Ed.2d 1460 , 78 S.Ct. 1332 ]), the Medina court *95 focused upon whether, in operation, allocation of the burden of proof to the defendant in a proceeding to determine his or her present competency transgresses any recognized principle of "`"fundamental fairness."'" ( Medina, supra, 505 U.S. at p. 443 .) After an inquiry carefully balancing the competing considerations, the Medina court essentially concluded that it is no

2004That [defendant’s] hearing would be held six years after the fact aggravates these difficulties.” (Pate, supra, 383 U.S. at p. 387 .) The Pate court, however, did not foreclose the possibility of such a hearing; rather it held that, under the circumstances before it, such , a retrospective hearing would not be possible.

2026As a general matter, such a retrospective inquiry into appellate defense counsel’s strategic decisions is susceptible to “the distorting effects of hindsight.” (In re Valdez (2010) 49 Cal.4th 715, 729 .) Although sometimes a claim with merit is clear from existing authority, it is more frequently murky.

2015The requirement of pleading and proof for prospective application of the Act, and the absence of such requirement for retrospective application, indicates that pleading and proof is not a requirement for the latter." (Guilford, supra, 228 Cal.App.4th at p. 659 (citing Kaulick and White); accord People v. Elder (2014) 227 Cal.App.4th 1308, 1314-15 , Brimmer, supra, 230 Cal.App.4th at pp. 801-802, Osuna, supra, 225 Cal.App.4th at p. 1033 .) The court finds this reasoning persuasive.

2012(See Morris v. U.S. (9th Cir. 1969) 414 F.2d 258, 259 , citing Meador v. U.S. (9th Cir. 1964) 332 F.2d 935, 938-939 ; see also U.S. v. Taylor (4th Cir. 1971) 437 F.2d 371, 382, fn. 3 [listing cases distinguishing between direct appeals and collateral review]; but see U.S. v. Makris (5th Cir. 1973) 483 F.2d 1082, 1092, fn. 8 [observing that that court had “consistently rejected” the Ninth Circuit’s rule of automatic reversal in direct criminal appeals].) 17 As noted ante, in footnote 15, in a later appeal we accepted this ruling as law of the case and thus did not pass judgment on whether the l

2012(See Morris v. U.S. (9th Cir. 1969) 414 F.2d 258, 259 , citing Meador v. U.S. (9th Cir. 1964) 332 F.2d 935, 938-939 ; see also U.S. v. Taylor (4th Cir. 1971) 437 F.2d 371, 382, fn. 3 [listing cases distinguishing between direct appeals and collateral review]; but see U.S. v. Makris (5th Cir. 1973) 483 F.2d 1082, 1092, fn. 8 [observing that that court had “consistently rejected” the Ninth Circuit’s rule of automatic reversal in direct criminal appeals].) 17 As noted ante, in footnote 15, in a later appeal we accepted this ruling as law of the case and thus did not pass judgment on whether the l

2009The courts that have said such hearings are "generally disfavored" and even "strongly disfavored" (see, e.g., U.S. v. Ewing (7th Cir. 2007) 494 F.3d 607, 623 ; Weisberg v. State of Minnesota (8th Cir. 1994) 29 F.3d 1271, 1278 ), have also recognized that despite their "doubts about the efficacy of such proceedings" ( Galowski v. Berge (7th Cir. 1996) 78 F.3d 1176, 1181 ), and the "obvious hazards" they present ( Ray v. Bowen (7th Cir. 1988) 843 F.2d 998, 1006 ), "the mere passage of time may not make the effort meaningless." ( United States ex rel.

2009In Rhode v. Olk-Long (8th Cir. 1996) 84 F.3d 284 , the court's entire answer to the petitioner's argument that applying a presumption of competence at a retrospective hearing violates due process, is as follows: "The Medina decision was based upon the long-standing principle that state legislatures, not federal courts, should establish state rules of criminal procedure. [( Medina, supra, 505 U.S. at pp. 445-446.)] Because we believe that this principle applies with equal force to post-conviction competency hearings, we decline to accept Rhode's narrow reading of Medina. " ( Rhode v. Olk-Long ,

2009In Rhode v. Olk-Long (8th Cir. 1996) 84 F.3d 284 , the court's entire answer to the petitioner's argument that applying a presumption of competence at a retrospective hearing violates due process, is as follows: "The Medina decision was based upon the long-standing principle that state legislatures, not federal courts, should establish state rules of criminal procedure. [( Medina, supra, 505 U.S. at pp. 445-446.)] Because we believe that this principle applies with equal force to post-conviction competency hearings, we decline to accept Rhode's narrow reading of Medina. " ( Rhode v. Olk-Long ,

2009In Rhode v. Olk-Long (8th Cir. 1996) 84 F.3d 284 , the court's entire answer to the petitioner's argument that applying a presumption of competence at a retrospective hearing violates due process, is as follows: "The Medina decision was based upon the long-standing principle that state legislatures, not federal courts, should establish state rules of criminal procedure. [( Medina, supra, 505 U.S. at pp. 445-446.)] Because we believe that this principle applies with equal force to post-conviction competency hearings, we decline to accept Rhode's narrow reading of Medina. " ( Rhode v. Olk-Long ,

2009The courts that have said such hearings are "generally disfavored" and even "strongly disfavored" (see, e.g., U.S. v. Ewing (7th Cir. 2007) 494 F.3d 607, 623 ; Weisberg v. State of Minnesota (8th Cir. 1994) 29 F.3d 1271, 1278 ), have also recognized that despite their "doubts about the efficacy of such proceedings" ( Galowski v. Berge (7th Cir. 1996) 78 F.3d 1176, 1181 ), and the "obvious hazards" they present ( Ray v. Bowen (7th Cir. 1988) 843 F.2d 998, 1006 ), "the mere passage of time may not make the effort meaningless." ( United States ex rel.

2009The courts that have said such hearings are "generally disfavored" and even "strongly disfavored" (see, e.g., U.S. v. Ewing (7th Cir. 2007) 494 F.3d 607, 623 ; Weisberg v. State of Minnesota (8th Cir. 1994) 29 F.3d 1271, 1278 ), have also recognized that despite their "doubts about the efficacy of such proceedings" ( Galowski v. Berge (7th Cir. 1996) 78 F.3d 1176, 1181 ), and the "obvious hazards" they present ( Ray v. Bowen (7th Cir. 1988) 843 F.2d 998, 1006 ), "the mere passage of time may not make the effort meaningless." ( United States ex rel.