consent defense in California

1989Appeals Bd. (1978) 22 Cal.3d 829, 836 [ 150 Cal.Rptr. 888 , 587 P.2d 684 ]; Carden v. Otto (1974) 37 Cal.App.3d 887, 895 [ 112 Cal.Rptr. 749 ].) The consent requirement protected “the rights and interests of employee and employer” and prevented or discouraged “either of them from obtaining a recovery from the third party at the expense or the disadvantage of the other.” (Brown v. Superior Court (1970) 3 Cal.3d 427, 431-432 [ 90 Cal.Rptr. 737 , 476 P.2d 105 ]; Associated Construction & Engineering Co. v. Workers' Comp.

1989Appeals Bd. (1978) 22 Cal.3d 829, 836 [ 150 Cal.Rptr. 888 , 587 P.2d 684 ]; Carden v. Otto (1974) 37 Cal.App.3d 887, 895 [ 112 Cal.Rptr. 749 ].) The consent requirement protected “the rights and interests of employee and employer” and prevented or discouraged “either of them from obtaining a recovery from the third party at the expense or the disadvantage of the other.” (Brown v. Superior Court (1970) 3 Cal.3d 427, 431-432 [ 90 Cal.Rptr. 737 , 476 P.2d 105 ]; Associated Construction & Engineering Co. v. Workers' Comp.

2018Proc., § 1161 ; Roberts, supra , 36 Cal.App.2d Supp. at p. 771 , 93 P.2d 654 [hotel guest's rights are contractual].) While Rodriguez may have had the hotel's consent to enter and use the room during the rental period, consent is not equivalent to a possessory interest and, in any event, the consent was not given with knowledge of Rodriguez's felonious intent. ( Pendleton, supra , 25 Cal.3d at p. 382 , 158 Cal.Rptr. 343 , 599 P.2d 649 ; Salemme, supra , 2 Cal.App.4th at p. 781 , 3 Cal.Rptr.2d 398 ; People v. Sherow (2011) 196 Cal.App.4th 1296 , 1304, 128 Cal.Rptr.3d 255 .) Regardless, Rodrigue

2018Proc., § 1161 ; Roberts, supra , 36 Cal.App.2d Supp. at p. 771 , 93 P.2d 654 [hotel guest's rights are contractual].) While Rodriguez may have had the hotel's consent to enter and use the room during the rental period, consent is not equivalent to a possessory interest and, in any event, the consent was not given with knowledge of Rodriguez's felonious intent. ( Pendleton, supra , 25 Cal.3d at p. 382 , 158 Cal.Rptr. 343 , 599 P.2d 649 ; Salemme, supra , 2 Cal.App.4th at p. 781 , 3 Cal.Rptr.2d 398 ; People v. Sherow (2011) 196 Cal.App.4th 1296 , 1304, 128 Cal.Rptr.3d 255 .) Regardless, Rodrigue

2022As explained, on October 27, 1993, the trial court precluded Morelos from pleading guilty after “review[ing] Penal Code section 1018, as well as the cases that relate to that code section, specifically People versus Chadd, 28 Cal.3d. 739.” In Chadd, we read Faretta’s conclusion that self- representation is “an independent right implied by the structure . . . of the Sixth Amendment” as not affecting the Legislature’s “authority to condition guilty pleas in capital cases on the consent of defense counsel.” ( Chadd, supra, 28 Cal.3d at pp. 751, 750.) We observed that Faretta addressed a defendant

2007As we recognized in Chadd , the 1973 statutory revision adding to section 1018 the requirement of counsel’s consent was part of a more extensive revision of California’s death penalty legislation and thus was intended to serve as a “further independent safeguard against erroneous imposition of a death sentence.” (Chadd, supra, 28 Cal.3d at p. 750 .) In Chadd , we explained that “ ‘[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.’ ” (Chadd, supra, 28 Cal.3d at p.

2015The crime of misdemeanor sexual battery includes as its elements the touching of “an intimate part of another person . . . against the will of the person touched ... for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.” (§ 243.4, subd. (e).) “ ‘[A]gainst the will’ of the victim is synonymous with ‘ “without the victim’s consent.” ’ [Citations.]” (People v. Babaali (2009) 171 Cal.App.4th 982, 995-996 [ 90 Cal.Rptr.3d 278 ] (Babaali); see People v. Giardino (2000) 82 Cal.App.4th 454, 460 [ 98 Cal.Rptr.2d 315 ].) “A defendant therefore commits a sexual battery if he

2015The crime of misdemeanor sexual battery includes as its elements the touching of “an intimate part of another person . . . against the will of the person touched ... for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.” (§ 243.4, subd. (e).) “ ‘[A]gainst the will’ of the victim is synonymous with ‘ “without the victim’s consent.” ’ [Citations.]” (People v. Babaali (2009) 171 Cal.App.4th 982, 995-996 [ 90 Cal.Rptr.3d 278 ] (Babaali); see People v. Giardino (2000) 82 Cal.App.4th 454, 460 [ 98 Cal.Rptr.2d 315 ].) “A defendant therefore commits a sexual battery if he

2015The crime of misdemeanor sexual battery includes as its elements the touching of “an intimate part of another person . . . against the will of the person touched ... for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.” (§ 243.4, subd. (e).) “ ‘[A]gainst the will’ of the victim is synonymous with ‘ “without the victim’s consent.” ’ [Citations.]” (People v. Babaali (2009) 171 Cal.App.4th 982, 995-996 [ 90 Cal.Rptr.3d 278 ] (Babaali); see People v. Giardino (2000) 82 Cal.App.4th 454, 460 [ 98 Cal.Rptr.2d 315 ].) “A defendant therefore commits a sexual battery if he

2015The crime of misdemeanor sexual battery includes as its elements the touching of “an intimate part of another person . . . against the will of the person touched ... for the specific purpose of sexual arousal, sexual gratification, or sexual abuse.” (§ 243.4, subd. (e).) “ ‘[A]gainst the will’ of the victim is synonymous with ‘ “without the victim’s consent.” ’ [Citations.]” (People v. Babaali (2009) 171 Cal.App.4th 982, 995-996 [ 90 Cal.Rptr.3d 278 ] (Babaali); see People v. Giardino (2000) 82 Cal.App.4th 454, 460 [ 98 Cal.Rptr.2d 315 ].) “A defendant therefore commits a sexual battery if he

2015In order to avoid the possibility of an unjust result if the kidnapping statute were given a literal interpretation, the Supreme Court held the statute should be given a ‘sensible construction,’ and the element of force is established ‘if the taking and carrying away is done for an illegal purpose or with an illegal intent.’ (Id. at p. 768.)” (Dominguez, supra, 180 Cal.App.4th at pp. 1357-1358.) “Michele D. noted that dicta in Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 402-403 , footnote 3 (Parnell ) and People v. Rios (1986) 177 Cal.App.3d 445, 451 (Rios) had interpreted Oliver as s

2010In order to *1358 avoid the possibility of an unjust result if the kidnapping statute were given a literal interpretation, the Supreme Court held the statute should be given a “sensible construction,” and the element of force is established “if the taking and carrying away is done for an illegal purpose or with an illegal intent.” (Id. at p. 768.) Michele D. noted that dicta in Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 402-403 , footnote 3 [ 173 Cal.Rptr. 906 ] (Parnell) and People v. Rios (1986) 177 Cal.App.3d 445, 451 [ 222 Cal.Rptr. 913 ] (Rios) had interpreted Oliver as standing

2015(Id. at pp. 1304-1305, 1309.) To establish a consent defense, the defendant must show that the occupant of the subject building “(1) actively invited the defendant to enter with knowledge of the defendant’s felonious intent, and (2) the defendant knew that the 29 occupant was aware of his felonious intent.” (Id. at p. 1305; see also People v. Felix (1994) 23 Cal.App.4th 1385, 1397-1398 (Felix).) As a preliminary matter, there was no indication that either Bonilla or Hernandez relied on consent as a defense to burglary at trial.

2011(Felix, supra, 23 Cal.App.4th at p. 1398 [relying on requirement of an invasion of a possessory right in formulating the consent defense to burglary]; People v. Superior Court (Granillo) (1988) 205 Cal.App.3d 1478, 1485 [ 253 Cal.Rptr. 316 ] [relying on the principle that “burglary law is designed to protect a possessory right in property against intrusion and the risk of harm” in determining that burglary is not committed by a defendant selling stolen property in an undercover officer’s apartment at the officer’s invitation].) Premised on the foregoing, we conclude that the consent defense to

2015The situation in this case is thus in sharp contrast to Granillo , where the defendant “was not an intruder, nor did any danger to personal safety arise from his mere entry.” (Granillo, supra, 205 Cal.App.3d at p. 1485.) Applying the consent defense here would also be at odds with Gauze.

2011(Felix, supra, 23 Cal.App.4th at p. 1398 [relying on requirement of an invasion of a possessory right in formulating the consent defense to burglary]; People v. Superior Court (Granillo) (1988) 205 Cal.App.3d 1478, 1485 [ 253 Cal.Rptr. 316 ] [relying on the principle that “burglary law is designed to protect a possessory right in property against intrusion and the risk of harm” in determining that burglary is not committed by a defendant selling stolen property in an undercover officer’s apartment at the officer’s invitation].) Premised on the foregoing, we conclude that the consent defense to

2014(E.g., Paykar Construction, Inc. v. Spilat Construction Corp. 12 The dissent’s position that Bank complied with the security first principle is contrary to the Supreme Court’s interpretation of how section 726 applies to debt secured by multiple parcels. (2001) 92 Cal.App.4th 488, 496 [Second App. Dist.]; Bank of America v. Graves (1996) 51 Cal.App.4th 607, 614 [Fourth App. Dist.]; First Nationwide Savings v. Perry (1992) 11 Cal.App.4th 1657, 1668 [Sixth App. Dist.]; see also National Enterprises, Inc. v. Woods (2001) 94 Cal.App.4th 1217, 1238 [Third App. Dist. stated that a comaker of a note

2014Woods (2001) 94 Cal.App.4th 1217, 1238 [Third App. Dist. stated that a comaker of a note is entitled to protection of the one form of action rule, but did not mention the consent requirement]; 4 Witkin, Summary of Cal. Law, supra, § 135, p. 934 [summarizing Schwenke].) Lastly, Bank suggests the absence of cases involving loans with multiple debtors secured by more than one parcel of real property demonstrates the reasoning in Schwenke is unreliable.

2008(People v. Woodward (1992) 4 Cal.4th 376, 383 [ 14 Cal.Rptr.2d 434 , 841 P.2d 954 ]; People v. Byrnes (1948) 84 Cal.App.2d 72, 73 [ 190 P.2d 290 ].)” Nevertheless, in defense of the action of the trial court, respondent argues that “[a] trial court has discretion to close a portion of a trial to the public even without the consent of or waiver by the defendant when there is good cause for such action based upon justice or protection of the parties.

2008(People v. Woodward (1992) 4 Cal.4th 376, 383 [ 14 Cal.Rptr.2d 434 , 841 P.2d 954 ]; People v. Byrnes (1948) 84 Cal.App.2d 72, 73 [ 190 P.2d 290 ].)” Nevertheless, in defense of the action of the trial court, respondent argues that “[a] trial court has discretion to close a portion of a trial to the public even without the consent of or waiver by the defendant when there is good cause for such action based upon justice or protection of the parties.

2008(People v. Cash (1959) 52 Cal.2d 841, 846 [ 345 P.2d 462 ].)” Alternatively, respondent argues that the trial court “properly excluded these two person |>zc] in order to protect child witness from harassment and possible physical harm” and that the error, if any, was clearly harmless beyond a reasonable doubt.

2008(People v. Cash (1959) 52 Cal.2d 841, 846 [ 345 P.2d 462 ].)” Alternatively, respondent argues that the trial court “properly excluded these two person |>zc] in order to protect child witness from harassment and possible physical harm” and that the error, if any, was clearly harmless beyond a reasonable doubt.

2008(People v. Woodward (1992) 4 Cal.4th 376, 383 [ 14 Cal.Rptr.2d 434 , 841 P.2d 954 ]; People v. Byrnes (1948) 84 Cal.App.2d 72, 73 [ 190 P.2d 290 ].)” Nevertheless, in defense of the action of the trial court, respondent argues that “[a] trial court has discretion to close a portion of a trial to the public even without the consent of or waiver by the defendant when there is good cause for such action based upon justice or protection of the parties.

2008(People v. Woodward (1992) 4 Cal.4th 376, 383 [ 14 Cal.Rptr.2d 434 , 841 P.2d 954 ]; People v. Byrnes (1948) 84 Cal.App.2d 72, 73 [ 190 P.2d 290 ].)” Nevertheless, in defense of the action of the trial court, respondent argues that “[a] trial court has discretion to close a portion of a trial to the public even without the consent of or waiver by the defendant when there is good cause for such action based upon justice or protection of the parties.

2006Most circuits have relied on the consent exception to Title III, which provides: "[i]t shall not be unlawful ... for a person acting under color of law to intercept a wire, oral, or electronic communication, where ... one of the parties to the communication has given prior consent to such interception." ( 18 U.S.C. § 2511 , subd. (2)(c).) Those courts have concluded that an inmate who uses jail or prison telephones with knowledge of a recording policy impliedly consents to the monitoring and recording of the calls. ( Faulkner, supra, 439 F.3d at pp. 1224-1226; U.S. v. Hammond (4th Cir.2002) 28

2006Most circuits have relied on the consent exception to Title III, which provides: "[i]t shall not be unlawful ... for a person acting under color of law to intercept a wire, oral, or electronic communication, where ... one of the parties to the communication has given prior consent to such interception." ( 18 U.S.C. § 2511 , subd. (2)(c).) Those courts have concluded that an inmate who uses jail or prison telephones with knowledge of a recording policy impliedly consents to the monitoring and recording of the calls. ( Faulkner, supra, 439 F.3d at pp. 1224-1226; U.S. v. Hammond (4th Cir.2002) 28

2015In order to avoid the possibility of an unjust result if the kidnapping statute were given a literal interpretation, the Supreme Court held the statute should be given a ‘sensible construction,’ and the element of force is established ‘if the taking and carrying away is done for an illegal purpose or with an illegal intent.’ (Id. at p. 768.)” (Dominguez, supra, 180 Cal.App.4th at pp. 1357-1358.) “Michele D. noted that dicta in Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 402-403 , footnote 3 (Parnell ) and People v. Rios (1986) 177 Cal.App.3d 445, 451 (Rios) had interpreted Oliver as s

2010In order to *1358 avoid the possibility of an unjust result if the kidnapping statute were given a literal interpretation, the Supreme Court held the statute should be given a “sensible construction,” and the element of force is established “if the taking and carrying away is done for an illegal purpose or with an illegal intent.” (Id. at p. 768.) Michele D. noted that dicta in Parnell v. Superior Court (1981) 119 Cal.App.3d 392, 402-403 , footnote 3 [ 173 Cal.Rptr. 906 ] (Parnell) and People v. Rios (1986) 177 Cal.App.3d 445, 451 [ 222 Cal.Rptr. 913 ] (Rios) had interpreted Oliver as standing

2004Relying on Sanders , the Bowers court stated, “any justification for a police search must be based on facts known to the police before the search is conducted.” (Bowers, supra, 117 Cal.App.4th at p. 1270 .) Therefore, for the search to be reasonable pursuant to the consent exception, Irish had to have known Myers waived his Fourth Amendment rights and consented to the search.

2004Relying on Sanders , the Bowers court stated, " any justification for a police search must be based on facts known to the police before the search is conducted." ( Bowers, supra, 117 Cal.App.4th at p. 1270 , 13 Cal.Rptr.3d 15 .) Therefore, for the search to be reasonable pursuant to the consent exception, Irish had to have known Myers waived his Fourth Amendment rights and consented to the search.

1990(Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [ 36 L.Ed.2d 854, 858 , 93 S.Ct. 2041 ].) The burden of proving the search comes within the consent exception to the warrant requirement is on the prosecution who must show the consent was valid by a preponderance of the evidence.

1990(Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219 [ 36 L.Ed.2d 854, 858 , 93 S.Ct. 2041 ].) The burden of proving the search comes within the consent exception to the warrant requirement is on the prosecution who must show the consent was valid by a preponderance of the evidence.

1992Moreover, the fact that the prosecutor requested such an instruction does not establish that it was required by the evidence, since "[s]uch instructions are commonly requested out of an abundance of caution." ( People v. Perez (1992) 2 Cal.4th 1117, 1130 [ 9 Cal. Rptr.2d 577 , 831 P.2d 1159 ].) Such caution was particularly warranted here where at least one division of the relevant district Court of Appeal had opined that a Mayberry instruction was required whenever a defendant proffered an actual consent defense. ( People v. Hampton, supra, 118 Cal. App.3d at p. 330 .) [1] Accord, Frank v. Su

1987(People v. Wickersham (1982) 32 Cal.3d 307, 326 [ 185 Cal.Rptr. 436 , 650 P.2d 311 ]; People v. Sanchez (1982) 131 Cal.App.3d 718, 735-736 [ 182 Cal.Rptr. 671 ]; People v. Hampton (1981) 118 Cal.App.3d 324, 329 .) The consent defense differs from the reasonable belief in consent defense.

2023In McNeely, supra, 569 U.S. 141 , the Supreme Court spoke disapprovingly of per se exceptions to the warrant requirement in the context of a warrantless blood test.

2015The Consent Exception to the Warrant Requirement Under the consent exception to the warrant requirement, a warrantless search may be conducted when the totality of the circumstances show the person consented to the search, and the consent was voluntary and not the product of express or implied coercion. 4 The trial court in the McNeely case found there were no exigent circumstances because the officer had failed to identify any factors that would suggest he faced an emergency or unusual delay in securing a warrant, and his testimony supported that a prosecutor and judge were readily available

2017The question thus is only of the meaning of the consent the exception to section 632 found in section 633.5, a pure question of law, which we review de novo. ( *496 People v. Nazary (2010) 191 Cal.App.4th 727 , 746-747, 120 Cal.Rptr.3d 143 [de novo review of application of section 632 where facts not in dispute], overruled on other grounds by People v. Vidana (2016) 1 Cal.5th 632 , 648, fn. 16, 206 Cal.Rptr.3d 556 , 377 P.3d 805 .) Our ultimate task in interpreting statutes is "to ascertain and effectuate legislative intent." ( People v. Woodhead (1987) 43 Cal.3d 1002 , 1007, 239 Cal.Rptr. 656

2017The question thus is only of the meaning of the consent the exception to section 632 found in section 633.5, a pure question of law, which we review de novo. ( *496 People v. Nazary (2010) 191 Cal.App.4th 727 , 746-747, 120 Cal.Rptr.3d 143 [de novo review of application of section 632 where facts not in dispute], overruled on other grounds by People v. Vidana (2016) 1 Cal.5th 632 , 648, fn. 16, 206 Cal.Rptr.3d 556 , 377 P.3d 805 .) Our ultimate task in interpreting statutes is "to ascertain and effectuate legislative intent." ( People v. Woodhead (1987) 43 Cal.3d 1002 , 1007, 239 Cal.Rptr. 656

2017The question thus is only of the meaning of the consent the exception to section 632 found in section 633.5, a pure question of law, which we review de novo. ( *496 People v. Nazary (2010) 191 Cal.App.4th 727 , 746-747, 120 Cal.Rptr.3d 143 [de novo review of application of section 632 where facts not in dispute], overruled on other grounds by People v. Vidana (2016) 1 Cal.5th 632 , 648, fn. 16, 206 Cal.Rptr.3d 556 , 377 P.3d 805 .) Our ultimate task in interpreting statutes is "to ascertain and effectuate legislative intent." ( People v. Woodhead (1987) 43 Cal.3d 1002 , 1007, 239 Cal.Rptr. 656

2017The question thus is only of the meaning of the consent the exception to section 632 found in section 633.5, a pure question of law, which we review de novo. ( *496 People v. Nazary (2010) 191 Cal.App.4th 727 , 746-747, 120 Cal.Rptr.3d 143 [de novo review of application of section 632 where facts not in dispute], overruled on other grounds by People v. Vidana (2016) 1 Cal.5th 632 , 648, fn. 16, 206 Cal.Rptr.3d 556 , 377 P.3d 805 .) Our ultimate task in interpreting statutes is "to ascertain and effectuate legislative intent." ( People v. Woodhead (1987) 43 Cal.3d 1002 , 1007, 239 Cal.Rptr. 656

2016“The Fourth Amendment generally prohibits the warrantless entry of a person’s home, whether to make an arrest or to search for specific objects. [Citations.] The prohibition does not apply, however, to situations in which voluntary consent has been obtained . . . .” (Illinois v. Rodriguez (1990) 497 U.S. 177, 181 .) “To ascertain if the prosecution has met its burden of establishing the consent exception to the warrant requirement, the trial court determines whether an officer’s belief that he or she had consent to search is objectively reasonable under the circumstances. [Citation.]” (People

2015Our analysis simply follows the logic and governing rule, explained in Sanders, that the reasonableness of a warrantless search must be determined from what police know at the time of the search.” ( Hoeninghaus, supra, 120 Cal.App.4th at pp. 1194-1195; see People v. Bowers (2004) 117 Cal.App.4th 1261, 1270 [“In accordance with the reasoning of the Sanders court, the constitutionality of the search turns on the factual circumstances 8 known to the officer at the time, not the suspect‟s implied consent to his probationary search condition”]; People v. Lazalde (2004) 120 Cal.App.4th 858, 864 [con

2015(See Hoeninghaus, supra, 120 Cal.App.4th at p. 1196 [“If, as the People argue, police did not need to know that their authority to search defendant was limited to searching for drugs, then police could search him without any limitation and without any grounds to believe the search was reasonable; and if, after learning about the condition, they *955 claimed that they were looking for drugs, the search could be upheld under the consent exception.”].) This is the “search first, justify later” approach that the Supreme Court has consistently decried, while pointing out that it is particularly pro

2015Our analysis simply follows the logic and governing rule, explained in Sanders, that the reasonableness of a warrantless search must be determined from what police know at the time of the search.” ( Hoeninghaus, supra, 120 Cal.App.4th at pp. 1194-1195; see People v. Bowers (2004) 117 Cal.App.4th 1261, 1270 [“In accordance with the reasoning of the Sanders court, the constitutionality of the search turns on the factual circumstances 8 known to the officer at the time, not the suspect‟s implied consent to his probationary search condition”]; People v. Lazalde (2004) 120 Cal.App.4th 858, 864 [con