Austin test in California

2016Austin’s motion substantially complied with the requirements for a section 473(b) request for relief Section 473(b) provides an application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” Quoting that language the District contends Austin’s motion was procedurally defective and properly denied without evaluating whether it otherwise had merit because Austin did not submit her proposed opposition to the summary judgment motion either with her original May 31, 2013 postjudgment request for r

2016Austin’s motion substantially complied with the requirements for a section 473(b) request for relief Section 473(b) provides an application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” Quoting that language the District contends Austin’s motion was procedurally defective and properly denied without evaluating whether it otherwise had merit because Austin did not submit her proposed opposition to the summary judgment motion either with her original May 31, 2013 postjudgment request for r

2016Austin’s motion substantially complied with the requirements for a section 473(b) request for relief Section 473(b) provides an application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” Quoting that language the District contends Austin’s motion was procedurally defective and properly denied without evaluating whether it otherwise had merit because Austin did not submit her proposed opposition to the summary judgment motion either with her original May 31, 2013 postjudgment request for r

2016Austin’s motion substantially complied with the requirements for a section 473(b) request for relief Section 473(b) provides an application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” Quoting that language the District contends Austin’s motion was procedurally defective and properly denied without evaluating whether it otherwise had merit because Austin did not submit her proposed opposition to the summary judgment motion either with her original May 31, 2013 postjudgment request for r

2016(See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1144 [ 80 Cal.Rptr.3d 398 ] [“[I]n 1981, after decades of criticism, the Legislature abrogated any such requirement by explicitly declaring, ‘No affidavit or declaration of merits shall be required of the moving party.’ (§ 473(b); Stats. 1981, ch. 122, § 2, p. 862.)”].) In light of the express statutory language that no affidavit or declaration of merits is required, the court’s refusal to consider the merits of Austin’s motion under section 473(b) because it was not signed under penalty of perjury was plain error.

2016(See Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1144 [ 80 Cal.Rptr.3d 398 ] [“[I]n 1981, after decades of criticism, the Legislature abrogated any such requirement by explicitly declaring, ‘No affidavit or declaration of merits shall be required of the moving party.’ (§ 473(b); Stats. 1981, ch. 122, § 2, p. 862.)”].) In light of the express statutory language that no affidavit or declaration of merits is required, the court’s refusal to consider the merits of Austin’s motion under section 473(b) because it was not signed under penalty of perjury was plain error.

2016(See County of Stanislaus v. Johnson, supra, 43 Cal.App.4th at p. 838 ; see Estate of Parks (1962) 206 Cal.App.2d 623, 634 [ 24 Cal.Rptr. 250 ] [no need to attach copy *934 of proposed objection to report of inheritance tax appraiser when substance of objection contained in verified application and declaration].) DISPOSITION The order denying Austin’s postjudgment motion is reversed and the matter remanded to the trial court to consider on its merits Austin’s motion to vacate the judgment and the order granting summary judgment.

2016(See County of Stanislaus v. Johnson, supra, 43 Cal.App.4th at p. 838 ; see Estate of Parks (1962) 206 Cal.App.2d 623, 634 [ 24 Cal.Rptr. 250 ] [no need to attach copy *934 of proposed objection to report of inheritance tax appraiser when substance of objection contained in verified application and declaration].) DISPOSITION The order denying Austin’s postjudgment motion is reversed and the matter remanded to the trial court to consider on its merits Austin’s motion to vacate the judgment and the order granting summary judgment.

2018As such, we limit our tolling discussion to Austin's claim that his pretrial incarceration tolled the relevant statutory periods. ( Keyes v. Bowen (2010) 189 Cal.App.4th 647 , 655-656, 117 Cal.Rptr.3d 207 [matters not properly raised will be deemed forfeited]; Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262 , 1267, 56 Cal.Rptr.3d 437 ["the in propria persona litigant is held to the same restrictive rules of procedure as an attorney"].) At oral argument, Austin pointed us to Elliott v. City of Union City (9th Cir. 1994) 25 F.3d 800 , in which the Ninth Circuit held that former se

2018As such, we limit our tolling discussion to Austin's claim that his pretrial incarceration tolled the relevant statutory periods. ( Keyes v. Bowen (2010) 189 Cal.App.4th 647 , 655-656, 117 Cal.Rptr.3d 207 [matters not properly raised will be deemed forfeited]; Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262 , 1267, 56 Cal.Rptr.3d 437 ["the in propria persona litigant is held to the same restrictive rules of procedure as an attorney"].) At oral argument, Austin pointed us to Elliott v. City of Union City (9th Cir. 1994) 25 F.3d 800 , in which the Ninth Circuit held that former se

2016Austin’s motion substantially complied with the requirements for a section 473(b) request for relief Section 473(b) provides an application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” Quoting that language the District contends Austin’s motion was procedurally defective and properly denied without evaluating whether it otherwise had merit because Austin did not submit her proposed opposition to the summary judgment motion either with her original May 31, 2013 postjudgment request for r

2016Austin’s motion substantially complied with the requirements for a section 473(b) request for relief Section 473(b) provides an application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” Quoting that language the District contends Austin’s motion was procedurally defective and properly denied without evaluating whether it otherwise had merit because Austin did not submit her proposed opposition to the summary judgment motion either with her original May 31, 2013 postjudgment request for r

2016Austin’s motion substantially complied with the requirements for a section 473(b) request for relief Section 473(b) provides an application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” Quoting that language the District contends Austin’s motion was procedurally defective and properly denied without evaluating whether it otherwise had merit because Austin did not submit her proposed opposition to the summary judgment motion either with her original May 31, 2013 postjudgment request for r

2016Austin’s motion substantially complied with the requirements for a section 473(b) request for relief Section 473(b) provides an application for relief “shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” Quoting that language the District contends Austin’s motion was procedurally defective and properly denied without evaluating whether it otherwise had merit because Austin did not submit her proposed opposition to the summary judgment motion either with her original May 31, 2013 postjudgment request for r

2020“A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal.” (People v. Lee (2011) 51 Cal.4th 620, 638 .) “But that rule does not apply when . . . the trial court gives an instruction that is an incorrect statement of the law.” (People v. Hudson (2006) 38 Cal.4th 1002, 1012 (Hudson); see also People v. Guiton (1993) 4 Cal.4th 1116, 1131 [“Trial courts have the duty to screen out invalid theories

2020The Attorney General does not argue that Austin forfeited this issue, and we deem the general confrontation clause objections made by Austin in the trial court sufficient to preserve this issue for appellate review. 52 gang enhancements.” (In re Alexander L. (2007) 149 Cal.App.4th 605, 610 (Alexander L.), citation omitted.) We first consider Austin’s contention that admission of the records of conviction for the prior offenses committed by Flenaugh and Jefferson violated the confrontation clause under the principle announced in Kirby, supra, 174 U.S. 47 . i. Austin’s Kirby Claim Joe Kirby was

2020We apply de novo review to Austin’s claim that his rights under the confrontation clause were violated. 39 (People v. Giron-Chamul (2016) 245 Cal.App.4th 932, 964 (Giron-Chamul).) When reviewing whether substantial evidence supports the gang enhancement, “We review the entire record in search of reasonable and credible evidence of solid value, viewing all the evidence in the light most favorable to the prosecution, and drawing all reasonable inferences in favor of the jury’s findings. [Citations.] We cannot, however, go beyond reasonable inferences into the realm of speculation, conjecture, su

2020“A trial court has no sua sponte duty to revise or improve upon an accurate statement of law without a request from counsel [citation], and failure to request clarification of an otherwise correct instruction forfeits the claim of error for purposes of appeal.” (People v. Lee (2011) 51 Cal.4th 620, 638 .) “But that rule does not apply when . . . the trial court gives an instruction that is an incorrect statement of the law.” (People v. Hudson (2006) 38 Cal.4th 1002, 1012 (Hudson); see also People v. Guiton (1993) 4 Cal.4th 1116, 1131 [“Trial courts have the duty to screen out invalid theories

2020(See, e.g., In re Ramirez (2019) 32 Cal.App.5th 384, 404 [examining whether the defendant’s act of supplying the guns that were ultimately used in the attempted robbery was sufficient to support a finding under section 190.2(d)].) Austin’s defense counsel did not object to the prosecutor’s argument that the jury could find that Austin was an actual killer based on his handing the tape to someone else or request an instruction clarifying the term “actual killer.” While recognizing that his defense counsel did not make a timely objection, Austin argues against forfeiture, 33 contending that the

2016As to the prosecutor’s alleged misstatement of the law of provocation in rebuttal, the applicable standard of prejudice is set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson), i.e., “ ‘a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.’ ”3 (Beltran, supra, 56 Cal.4th at p. 955 [Watson standard applied in determining whether misstatements of provocation standard in closing argument were prejudicial].) As to ineffective assistance, a defendant must show (1) his trial counsel’s performance fell below an objective standard of

2016As to the prosecutor’s alleged misstatement of the law of provocation in rebuttal, the applicable standard of prejudice is set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson), i.e., “ ‘a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.’ ”3 (Beltran, supra, 56 Cal.4th at p. 955 [Watson standard applied in determining whether misstatements of provocation standard in closing argument were prejudicial].) As to ineffective assistance, a defendant must show (1) his trial counsel’s performance fell below an objective standard of

2016As to the prosecutor’s alleged misstatement of the law of provocation in rebuttal, the applicable standard of prejudice is set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson), i.e., “ ‘a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.’ ”3 (Beltran, supra, 56 Cal.4th at p. 955 [Watson standard applied in determining whether misstatements of provocation standard in closing argument were prejudicial].) As to ineffective assistance, a defendant must show (1) his trial counsel’s performance fell below an objective standard of

2016As to the prosecutor’s alleged misstatement of the law of provocation in rebuttal, the applicable standard of prejudice is set forth in People v. Watson (1956) 46 Cal.2d 818 (Watson), i.e., “ ‘a defendant must show it is reasonably probable a more favorable result would have been obtained absent the error.’ ”3 (Beltran, supra, 56 Cal.4th at p. 955 [Watson standard applied in determining whether misstatements of provocation standard in closing argument were prejudicial].) As to ineffective assistance, a defendant must show (1) his trial counsel’s performance fell below an objective standard of