Dunn rule in California

2025From the sidewalk, I could see paperwork affixed the front of the windshield on the driver side of the vehicle.” Applying the Dunn factors to this disclosure does not demonstrate the area where the car was located was “so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” (Dunn, supra, 480 U.S. at p. 301 .) The affidavit does not disclose how close the driveway was to the home but does hint that the portion of the driveway upon which the vehicle was parked was relatively close to the home, as the car was backed up to the bac

2025From the sidewalk, I could see paperwork affixed the front of the windshield on the driver side of the vehicle.” Applying the Dunn factors to this disclosure does not demonstrate the area where the car was located was “so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” (Dunn, supra, 480 U.S. at p. 301 .) The affidavit does not disclose how close the driveway was to the home but does hint that the portion of the driveway upon which the vehicle was parked was relatively close to the home, as the car was backed up to the bac

2023(See People v. Lynch ( May 27, 2022 , C094174 [nonpub. opn.], rev. granted Aug. 10, 2022, S274942.) Incidentally, the author of Flores and another justice who concurred in the Flores opinion have since been persuaded by “the rationale for adding a state law harmless error component” to the analysis and now endorse “the two-step harmless error standard articulated in Lopez.” (People v. Ross (2022) 86 Cal.App.5th 1346 , 1354, rev. granted Mar. 15, 2023, S278266.) We will apply the Dunn analysis to defendant’s claim, but it should be noted the outcome would be the same under Lopez.

2023(See People v. Lynch ( May 27, 2022 , C094174 [nonpub. opn.], rev. granted Aug. 10, 2022, S274942.) Incidentally, the author of Flores and another justice who concurred in the Flores opinion have since been persuaded by “the rationale for adding a state law harmless error component” to the analysis and now endorse “the two-step harmless error standard articulated in Lopez.” (People v. Ross (2022) 86 Cal.App.5th 1346 , 1354, rev. granted Mar. 15, 2023, S278266.) We will apply the Dunn analysis to defendant’s claim, but it should be noted the outcome would be the same under Lopez.

2016(People v. Lucas (1995) 12 Cal.4th 415, 436-437 (Lucas); see Ray, supra, at p. 349 .) Dunn's claim of ineffective counsel arises from his trial counsel's failure to request a limiting jury instruction.

2016"A 'reasonable attorney may have tactically concluded that the risk of a limiting instruction . . . outweighed the questionable benefits such instruction would provide.' " (People v. Hernandez (2004) 33 Cal.4th 1040, 1053 , quoting People v. Maury (2003) 30 Cal.4th 342, 394 .) On the record before us, we simply cannot reach the conclusion that no rational tactical purpose existed for Dunn's trial counsel's failure to ask for a limiting instruction. ( Lucas, supra, 12 Cal.4th at pp. 436-437; Ray, supra, 13 Cal.4th at p. 349 .) Additionally, even if we were to find that Dunn's trial counsel's re

2016To show that trial counsel's performance was constitutionally defective, an appellant must prove: (1) counsel's performance fell below the standard of reasonableness, and (2) the "deficient performance prejudiced the defense." (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) Competency is presumed unless the record affirmatively excludes a rational basis for trial counsel's choice.

2016(People v. Lucas (1995) 12 Cal.4th 415, 436-437 (Lucas); see Ray, supra, at p. 349 .) Dunn's claim of ineffective counsel arises from his trial counsel's failure to request a limiting jury instruction.

2016"A 'reasonable attorney may have tactically concluded that the risk of a limiting instruction . . . outweighed the questionable benefits such instruction would provide.' " (People v. Hernandez (2004) 33 Cal.4th 1040, 1053 , quoting People v. Maury (2003) 30 Cal.4th 342, 394 .) On the record before us, we simply cannot reach the conclusion that no rational tactical purpose existed for Dunn's trial counsel's failure to ask for a limiting instruction. ( Lucas, supra, 12 Cal.4th at pp. 436-437; Ray, supra, 13 Cal.4th at p. 349 .) Additionally, even if we were to find that Dunn's trial counsel's re

2014(People v. Medina (1995) 11 Cal.4th 694, 773 [“On direct appeal, a claim of ineffective counsel cannot be 16. established by mere speculation regarding the ‘likely’ testimony of potentially available witnesses.”]; People v. Williams (1988) 44 Cal.3d 883, 933 [“A factual basis, not speculation, must be established before reversal of a judgment may be had on grounds of ineffective assistance of counsel.”].) DISPOSITION The trial court’s order of restitution for noneconomic losses pursuant to section 1202.4, subdivision (f)(3)(F) is reversed only as to the award of $1.5 million to victim Shelley

2014(People v. Medina (1995) 11 Cal.4th 694, 773 [“On direct appeal, a claim of ineffective counsel cannot be 16. established by mere speculation regarding the ‘likely’ testimony of potentially available witnesses.”]; People v. Williams (1988) 44 Cal.3d 883, 933 [“A factual basis, not speculation, must be established before reversal of a judgment may be had on grounds of ineffective assistance of counsel.”].) DISPOSITION The trial court’s order of restitution for noneconomic losses pursuant to section 1202.4, subdivision (f)(3)(F) is reversed only as to the award of $1.5 million to victim Shelley

2012(See, e.g., People v. Harris (1994) 22 Cal.App.4th 1575, 1581 [ 28 Cal.Rptr.2d 317 ] [any error in denying mistrial motion harmless when “[e]vidence of [defendant’s] guilt was overwhelming and undisputed at trial”]; Stinson, supra, 214 Cal.App.2d at p. 482 [same when evidence “points convincingly to guilt”].) B.

2012(See, e.g., People v. Harris (1994) 22 Cal.App.4th 1575, 1581 [ 28 Cal.Rptr.2d 317 ] [any error in denying mistrial motion harmless when “[e]vidence of [defendant’s] guilt was overwhelming and undisputed at trial”]; Stinson, supra, 214 Cal.App.2d at p. 482 [same when evidence “points convincingly to guilt”].) B.

2012Because a “defendant’s rights to due process and to present a defense do not include a right to present to the jury a speculative, factually unfounded inference” (People v. Mincey (1992) 2 Cal.4th 408, 442 [ 6 Cal.Rptr.2d 822 , 827 P.2d 388 ] (Mincey)), we reject Dunn’s claim that his “due process rights became a hollow guarantee without Ticson’s expected opinion testimony.” 10 In sum, all of the factors enumerated above (see pp. 1094-1095, ante), except the due diligence factor to which we attribute little weight (see pp. 1095-1096, ante), support the trial court’s denial of Dunn’s motion for

2012Because a “defendant’s rights to due process and to present a defense do not include a right to present to the jury a speculative, factually unfounded inference” (People v. Mincey (1992) 2 Cal.4th 408, 442 [ 6 Cal.Rptr.2d 822 , 827 P.2d 388 ] (Mincey)), we reject Dunn’s claim that his “due process rights became a hollow guarantee without Ticson’s expected opinion testimony.” 10 In sum, all of the factors enumerated above (see pp. 1094-1095, ante), except the due diligence factor to which we attribute little weight (see pp. 1095-1096, ante), support the trial court’s denial of Dunn’s motion for

2012The evidence of Dunn’s guilt, “though [partially] circumstantial, was tight and strong.” (People v. Stinson (1963) 214 Cal.App.2d 476, 482 [ 29 Cal.Rptr. 695 ] (Stinson).) Minor testified Dunn rubbed his penis against her vulva, and her account of the molestation, as related by several witnesses, was consistent.

2012The evidence of Dunn’s guilt, “though [partially] circumstantial, was tight and strong.” (People v. Stinson (1963) 214 Cal.App.2d 476, 482 [ 29 Cal.Rptr. 695 ] (Stinson).) Minor testified Dunn rubbed his penis against her vulva, and her account of the molestation, as related by several witnesses, was consistent.

2012(See Glover, supra, 270 Cal.App.2d at p. 260 [new trial motion properly denied when defendant did not seek continuance to procure desired witnesses].) Third, Dunn was not entirely free from fault with respect to Ticson’s sudden and unanticipated inability to testify at trial.

2010Nonetheless, in United States v. Dunn (1987) 480 U.S. 294, 301 [ 94 L.Ed.2d 326 , 107 S.Ct. 1134 ], the Supreme Court identified four factors (the Dunn factors) that are relevant to this determination: (1) “the proximity of the area claimed to be curtilage to the home”; (2) “whether the area is included within an enclosure surrounding the home”; (3) “the nature of the uses to which the area is put”; and (4) “the steps taken by the resident to protect the area from observation by people passing by.” The Dunn court cautioned that “these factors are usefifi analytical tools only to the degree tha

2010Nonetheless, in United States v. Dunn (1987) 480 U.S. 294, 301 [ 94 L.Ed.2d 326 , 107 S.Ct. 1134 ], the Supreme Court identified four factors (the Dunn factors) that are relevant to this determination: (1) “the proximity of the area claimed to be curtilage to the home”; (2) “whether the area is included within an enclosure surrounding the home”; (3) “the nature of the uses to which the area is put”; and (4) “the steps taken by the resident to protect the area from observation by people passing by.” The Dunn court cautioned that “these factors are usefifi analytical tools only to the degree tha

2010Nonetheless, in United States v. Dunn (1987) 480 U.S. 294, 301 [ 94 L.Ed.2d 326 , 107 S.Ct. 1134 ], the Supreme Court identified four factors (the Dunn factors) that are relevant to this determination: (1) “the proximity of the area claimed to be curtilage to the home”; (2) “whether the area is included within an enclosure surrounding the home”; (3) “the nature of the uses to which the area is put”; and (4) “the steps taken by the resident to protect the area from observation by people passing by.” The Dunn court cautioned that “these factors are usefifi analytical tools only to the degree tha

2010Nonetheless, in United States v. Dunn (1987) 480 U.S. 294, 301 [ 94 L.Ed.2d 326 , 107 S.Ct. 1134 ], the Supreme Court identified four factors (the Dunn factors) that are relevant to this determination: (1) “the proximity of the area claimed to be curtilage to the home”; (2) “whether the area is included within an enclosure surrounding the home”; (3) “the nature of the uses to which the area is put”; and (4) “the steps taken by the resident to protect the area from observation by people passing by.” The Dunn court cautioned that “these factors are usefifi analytical tools only to the degree tha

2006The trial court had the discretion to consider evidence not referenced in Dunn’s separate statement (Zimmerman, Rosenfeld, Gersh & Leeds v. Larson (2005) 131 Cal.App.4th 1466, 1478 [ 33 Cal.Rptr.3d 111 ]), and we discern no basis for concluding that the court did not properly exercise that discretion in denying Dunn’s motion. “ ‘ “ ‘[S]ummary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence.’ [Citations.]” ’ ” (Leep v. American Ship Management (2005) 126 Cal.App.4th 1028, 1039 [ 24 Cal.Rptr.3d 463 ].) D

2006The trial court had the discretion to consider evidence not referenced in Dunn’s separate statement (Zimmerman, Rosenfeld, Gersh & Leeds v. Larson (2005) 131 Cal.App.4th 1466, 1478 [ 33 Cal.Rptr.3d 111 ]), and we discern no basis for concluding that the court did not properly exercise that discretion in denying Dunn’s motion. “ ‘ “ ‘[S]ummary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence.’ [Citations.]” ’ ” (Leep v. American Ship Management (2005) 126 Cal.App.4th 1028, 1039 [ 24 Cal.Rptr.3d 463 ].) D

2006The trial court had the discretion to consider evidence not referenced in Dunn’s separate statement (Zimmerman, Rosenfeld, Gersh & Leeds v. Larson (2005) 131 Cal.App.4th 1466, 1478 [ 33 Cal.Rptr.3d 111 ]), and we discern no basis for concluding that the court did not properly exercise that discretion in denying Dunn’s motion. “ ‘ “ ‘[S]ummary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence.’ [Citations.]” ’ ” (Leep v. American Ship Management (2005) 126 Cal.App.4th 1028, 1039 [ 24 Cal.Rptr.3d 463 ].) D

2006The trial court had the discretion to consider evidence not referenced in Dunn’s separate statement (Zimmerman, Rosenfeld, Gersh & Leeds v. Larson (2005) 131 Cal.App.4th 1466, 1478 [ 33 Cal.Rptr.3d 111 ]), and we discern no basis for concluding that the court did not properly exercise that discretion in denying Dunn’s motion. “ ‘ “ ‘[S]ummary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence.’ [Citations.]” ’ ” (Leep v. American Ship Management (2005) 126 Cal.App.4th 1028, 1039 [ 24 Cal.Rptr.3d 463 ].) D

2002(See Estate of Chandler (1931) 112 Cal.App. 601, 604 [ 297 P. 636 ]; see also In re Marriage of Jafeman (1972) 29 Cal.App.3d 244, 259 [ 105 Cal.Rptr. 483 ] [applying the Dunn rule where community funds were used to improve husband’s separate property].) The distinction between community contributions toward reducing an encumbrance and toward capital improvements, however, is neither self-evident nor consistently recognized.

2002(See Estate of Chandler (1931) 112 Cal.App. 601, 604 [ 297 P. 636 ]; see also In re Marriage of Jafeman (1972) 29 Cal.App.3d 244, 259 [ 105 Cal.Rptr. 483 ] [applying the Dunn rule where community funds were used to improve husband’s separate property].) The distinction between community contributions toward reducing an encumbrance and toward capital improvements, however, is neither self-evident nor consistently recognized.

2002To the implied term recognized by Arbuckle that the judge accepting the plea will impose sentence must be added an implied condition: if that judge then still actively exercises judicial power.” (Dunn, supra, 176 Cal.App.3d at p. 575 ; see also People v. Jackson (1987) 193 Cal.App.3d 393 [ 238 Cal.Rptr. 327 ] [Arbuckle inapplicable where unavailability due to illness].) The People argue that this case comes within the Dunn exception because the prosecutor’s peremptory challenge “must also be considered an event' that removes the judge from the ability to exercise judicial power in a defendant’

2002To the implied term recognized by Arbuckle that the judge accepting the plea will impose sentence must be added an implied condition: if that judge then still actively exercises judicial power.” (Dunn, supra, 176 Cal.App.3d at p. 575 ; see also People v. Jackson (1987) 193 Cal.App.3d 393 [ 238 Cal.Rptr. 327 ] [Arbuckle inapplicable where unavailability due to illness].) The People argue that this case comes within the Dunn exception because the prosecutor’s peremptory challenge “must also be considered an event' that removes the judge from the ability to exercise judicial power in a defendant’

2002(See Estate of Chandler (1931) 112 Cal.App. 601, 604 [ 297 P. 636 ]; see also In re Marriage of Jafeman (1972) 29 Cal.App.3d 244, 259 [ 105 Cal.Rptr. 483 ] [applying the Dunn rule where community funds were used to improve husband’s separate property].) The distinction between community contributions toward reducing an encumbrance and toward capital improvements, however, is neither self-evident nor consistently recognized.

2002(See Estate of Chandler (1931) 112 Cal.App. 601, 604 [ 297 P. 636 ]; see also In re Marriage of Jafeman (1972) 29 Cal.App.3d 244, 259 [ 105 Cal.Rptr. 483 ] [applying the Dunn rule where community funds were used to improve husband’s separate property].) The distinction between community contributions toward reducing an encumbrance and toward capital improvements, however, is neither self-evident nor consistently recognized.