reference hearing in California

2021(Strickland v. Washington (1984) 466 U.S. 668, 687-692 [ 80 L.Ed.2d 674, 693-696 ].) To establish prejudice, “the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 389 .) A single improper reference to defense counsel’s lack of belief in the defendant’s testimony is not so prejudicial that it could not have been cured by an admonition.

2021(Strickland v. Washington (1984) 466 U.S. 668, 687-692 [ 80 L.Ed.2d 674, 693-696 ].) To establish prejudice, “the record must demonstrate ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different’ [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 389 .) A single improper reference to defense counsel’s lack of belief in the defendant’s testimony is not so prejudicial that it could not have been cured by an admonition.

1999But petitioner did not call any of these individuals as witnesses at the reference hearing, relying instead on stipulations and declarations. 3 In a habeas corpus proceeding, a petitioner who seeks relief on the ground of inadequate investigation by trial counsel “generally cannot expect to establish a case for relief solely by relying on testimony, expert or otherwise, describing what evidence might have been discovered” but instead “must generally produce that evidence so the credibility of the witnesses can be tested by cross-examination.” (In re Fields, supra, 51 Cal.3d 1063, 1071 .) Absen

1999But petitioner did not call any of these individuals as witnesses at the reference hearing, relying instead on stipulations and declarations. 3 In a habeas corpus proceeding, a petitioner who seeks relief on the ground of inadequate investigation by trial counsel “generally cannot expect to establish a case for relief solely by relying on testimony, expert or otherwise, describing what evidence might have been discovered” but instead “must generally produce that evidence so the credibility of the witnesses can be tested by cross-examination.” (In re Fields, supra, 51 Cal.3d 1063, 1071 .) Absen

2019(Cf. Scott, supra, 29 Cal.4th at p. 814 [requirement that petitioner provide only the witness statements, expert reports, and real evidence that he “intend[ed] to offer” was not onerous and “could greatly facilitate the reference hearing”]; Coito, at pp. 496-497.) In arguing the qualified protection should not be available, the district attorney emphasizes it is no longer available in criminal cases under Proposition 115.

2011(In re Scott (2003) 29 Cal.4th 783, 791, 815 [ 129 Cal.Rptr.2d 605 , 61 P.3d 402 ].) Nor, contrary to the referee’s explanation and petitioner’s argument here, would petitioner’s testimony have been irrelevant at the reference hearing.

2022In Coffey, the hearing officer determined the expert’s conclusions were “ ‘insufficient to rebut the official duty presumption.’ ” ( Coffey, supra, at p. 1206 .) The Supreme Court took this statement as “a reference to the presumption the chemical test results were valid.” (Ibid.) The court explained its interpretation in a footnote: “Applied in this context, ‘Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of [Cal. Code Regs.] title 17. [Citations.] Test results from

2022In Coffey, the hearing officer determined the expert’s conclusions were “ ‘insufficient to rebut the official duty presumption.’ ” ( Coffey, supra, at p. 1206 .) The Supreme Court took this statement as “a reference to the presumption the chemical test results were valid.” (Ibid.) The court explained its interpretation in a footnote: “Applied in this context, ‘Evidence Code section 664 creates a rebuttable presumption that blood-alcohol test results recorded on official forms were obtained by following the regulations and guidelines of [Cal. Code Regs.] title 17. [Citations.] Test results from

1995Since the referee had not made a full review of the evidence that was presented at trial, we do not find his recommendation persuasive.” (In re Marquez, supra, 1 Cal.4th at p. 604 .) The question before us is whether, had the mitigating evidence presented at the reference hearing been presented at trial, it is reasonably probable the outcome would have been different.

1995(Id. at p. 207.) As in that case, we are “unable to conclude that, if trial counsel had undertaken the exhaustive and laborious efforts his appellate counsel have for the reference hearing, there is a reasonable probability the result would have been different.” (Id. at pp. 208-209.) The case of In re Marquez, supra, 1 Cal.4th 584 , where we found counsel’s failure to investigate and present available mitigating evidence was prejudicial, is distinguishable.

2003We usually defer to a referee's factual findings when they are based on the referee's observation of witness demeanor at the reference hearing. ( In re Avena, supra, 12 Cal.4th at p. 710, 49 Cal.Rptr.2d 413 , 909 P.2d 1017 .) Here, however, the referee's findings are based not so much on witness demeanor at the reference hearing but rather on a series of inferences drawn from the evidence presented at trial and at the reference hearing.

2003We usually defer to a referee's factual findings when they are based on the referee's observation of witness demeanor at the reference hearing. ( In re Avena, supra, 12 Cal.4th at p. 710, 49 Cal.Rptr.2d 413 , 909 P.2d 1017 .) Here, however, the referee's findings are based not so much on witness demeanor at the reference hearing but rather on a series of inferences drawn from the evidence presented at trial and at the reference hearing.

1998All statutory references are to the Welfare and Institutions Code. [7] Although the rule cites to California Rules of Court, rule 1406, Father points out that that rule does not pertain to notice and should probably be a reference to rule 1407. [8] Citing Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554 [ 194 Cal. Rptr. 773 , 669 P.2d 9 ], and Alioto Fish Co. v. Alioto (1994) 27 Cal. App.4th 1669, 1690 [ 34 Cal. Rptr.2d 244 ], the Department contends that the presence of Father's counsel on previous occasions waives notice to Father for the August 14 hearing at which neither Father no

1998All statutory references are to the Welfare and Institutions Code. [7] Although the rule cites to California Rules of Court, rule 1406, Father points out that that rule does not pertain to notice and should probably be a reference to rule 1407. [8] Citing Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554 [ 194 Cal. Rptr. 773 , 669 P.2d 9 ], and Alioto Fish Co. v. Alioto (1994) 27 Cal. App.4th 1669, 1690 [ 34 Cal. Rptr.2d 244 ], the Department contends that the presence of Father's counsel on previous occasions waives notice to Father for the August 14 hearing at which neither Father no

1967(Herman v. Claudy (1956) 350 U.S. 116, 122 [ 100 L.Ed. 126 , 76 S.Ct. 223 ]; Wright v. Dickson (9th Cir. 1964) 336 F.2d 878, 882 [plea invalid if “induced by incriminating statements obtained by . . . interrogation [violative of Escobedo] ’ ’] ; United States ex rel.

1967(Herman v. Claudy (1956) 350 U.S. 116, 122 [ 100 L.Ed. 126 , 76 S.Ct. 223 ]; Wright v. Dickson (9th Cir. 1964) 336 F.2d 878, 882 [plea invalid if “induced by incriminating statements obtained by . . . interrogation [violative of Escobedo] ’ ’] ; United States ex rel.

1967It is because of the effect of the confession that the reversal is compelled.” (People v. Schader, supra, 62 Cal.2d 716, 729-730 ; see also People v. Dorado, supra, 62 Cal.2d 338, 356 .) We recognized as much in In re Seiterle (1964) 61 Cal.2d 651, 657 [ 39 Cal.Rptr. 716 , 394 P.2d 556 ], when we found it necessary to determine whether “the existence of [a confession obtained in violation of Escobedo] caused [defendant] to plead guilty. ...” Although we reached a determination adverse to the defendant in Seiterle , we did so only because “his initial plea, closest in time to the confession, wa

1967It is because of the effect of the confession that the reversal is compelled.” (People v. Schader, supra, 62 Cal.2d 716, 729-730 ; see also People v. Dorado, supra, 62 Cal.2d 338, 356 .) We recognized as much in In re Seiterle (1964) 61 Cal.2d 651, 657 [ 39 Cal.Rptr. 716 , 394 P.2d 556 ], when we found it necessary to determine whether “the existence of [a confession obtained in violation of Escobedo] caused [defendant] to plead guilty. ...” Although we reached a determination adverse to the defendant in Seiterle , we did so only because “his initial plea, closest in time to the confession, wa

1967It is because of the effect of the confession that the reversal is compelled.” (People v. Schader, supra, 62 Cal.2d 716, 729-730 ; see also People v. Dorado, supra, 62 Cal.2d 338, 356 .) We recognized as much in In re Seiterle (1964) 61 Cal.2d 651, 657 [ 39 Cal.Rptr. 716 , 394 P.2d 556 ], when we found it necessary to determine whether “the existence of [a confession obtained in violation of Escobedo] caused [defendant] to plead guilty. ...” Although we reached a determination adverse to the defendant in Seiterle , we did so only because “his initial plea, closest in time to the confession, wa

1967It is because of the effect of the confession that the reversal is compelled.” (People v. Schader, supra, 62 Cal.2d 716, 729-730 ; see also People v. Dorado, supra, 62 Cal.2d 338, 356 .) We recognized as much in In re Seiterle (1964) 61 Cal.2d 651, 657 [ 39 Cal.Rptr. 716 , 394 P.2d 556 ], when we found it necessary to determine whether “the existence of [a confession obtained in violation of Escobedo] caused [defendant] to plead guilty. ...” Although we reached a determination adverse to the defendant in Seiterle , we did so only because “his initial plea, closest in time to the confession, wa

1967(Herman v. Claudy (1956) 350 U.S. 116, 122 [ 100 L.Ed. 126 , 76 S.Ct. 223 ]; Wright v. Dickson (9th Cir. 1964) 336 F.2d 878, 882 [plea invalid if “induced by incriminating statements obtained by . . . interrogation [violative of Escobedo] ’ ’] ; United States ex rel.

1967(Herman v. Claudy (1956) 350 U.S. 116, 122 [ 100 L.Ed. 126 , 76 S.Ct. 223 ]; Wright v. Dickson (9th Cir. 1964) 336 F.2d 878, 882 [plea invalid if “induced by incriminating statements obtained by . . . interrogation [violative of Escobedo] ’ ’] ; United States ex rel.

1967It is because of the effect of the confession that the reversal is compelled.” (People v. Schader, supra, 62 Cal.2d 716, 729-730 ; see also People v. Dorado, supra, 62 Cal.2d 338, 356 .) We recognized as much in In re Seiterle (1964) 61 Cal.2d 651, 657 [ 39 Cal.Rptr. 716 , 394 P.2d 556 ], when we found it necessary to determine whether “the existence of [a confession obtained in violation of Escobedo] caused [defendant] to plead guilty. ...” Although we reached a determination adverse to the defendant in Seiterle , we did so only because “his initial plea, closest in time to the confession, wa

1967It is because of the effect of the confession that the reversal is compelled.” (People v. Schader, supra, 62 Cal.2d 716, 729-730 ; see also People v. Dorado, supra, 62 Cal.2d 338, 356 .) We recognized as much in In re Seiterle (1964) 61 Cal.2d 651, 657 [ 39 Cal.Rptr. 716 , 394 P.2d 556 ], when we found it necessary to determine whether “the existence of [a confession obtained in violation of Escobedo] caused [defendant] to plead guilty. ...” Although we reached a determination adverse to the defendant in Seiterle , we did so only because “his initial plea, closest in time to the confession, wa

2014(See People v. Duvall (1995) 9 Cal.4th 464, 476-478 (Duvall); 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Writs, § 90, pp, 708-709; Cal. Rules of Court, rule 8.386(c)(3) & (d)(3).) If material factual disputes remain, we may order a reference hearing to resolve them. ( Duvall, supra, 9 Cal.4th at pp. 478-479; see In re Freeman (2006) 38 Cal.4th 630, 635 [standard of review over referee’s findings].) However, no reference hearing is required in this case, as the material undisputed facts are sufficient for us to make the required determinations.

2014(See People v. Duvall (1995) 9 Cal.4th 464, 476-478 (Duvall); 6 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Criminal Writs, § 90, pp, 708-709; Cal. Rules of Court, rule 8.386(c)(3) & (d)(3).) If material factual disputes remain, we may order a reference hearing to resolve them. ( Duvall, supra, 9 Cal.4th at pp. 478-479; see In re Freeman (2006) 38 Cal.4th 630, 635 [standard of review over referee’s findings].) However, no reference hearing is required in this case, as the material undisputed facts are sufficient for us to make the required determinations.

2013(See Blatty v. New York Times Co., supra, 42 Cal.3d at p. 1046 [noting the specific reference requirement is based on whether it was "reasonably 31 understood" by readers that the alleged injurious falsehood—failing to include plaintiff's novel on the best-seller list—referred to plaintiff]); see also Yow v. National Enquirer, Inc. (E.D.Cal. 2008) 550 F.Supp.2d 1179, 1190 [denying motion to dismiss because it could not "be determined as a matter of law that a reasonable reader giving the ordinary meaning to the words of the article[] would not clearly identify Plaintiff" as one of the women wh

2013(See Blatty v. New York Times Co., supra, 42 Cal.3d at p. 1044 [the specific reference requirement "limits the right of action for injurious falsehood" by denying relief to "those who merely complain of nonspecific statements that they believe cause them some hurt" (italics added)].) Similarly, the noncompete article is not "of or concerning" PetRays as the article merely contains the opinions of Dr. Wright, its author and then business owner, regarding covenants not to compete and why in his opinion such clauses are not a good thing.

2003As noted above, "`[t]he deference accorded factual findings derives from the fact that the referee had the opportunity to observe the demeanor of witnesses and their manner of testifying.' [Citations.]" ( In re Hitchings, supra, 6 Cal.4th 97, 109 , 24 Cal.Rptr.2d 74 , 860 P.2d 466 .) The referee had little opportunity to observe Long's demeanor and manner of testifying.

2003As noted above, "`[t]he deference accorded factual findings derives from the fact that the referee had the opportunity to observe the demeanor of witnesses and their manner of testifying.' [Citations.]" ( In re Hitchings, supra, 6 Cal.4th 97, 109 , 24 Cal.Rptr.2d 74 , 860 P.2d 466 .) The referee had little opportunity to observe Long's demeanor and manner of testifying.

2018Cowan also points out that the juror's claim that he had forgotten about the 1995 incident is inconsistent with his testimony on cross-examination agreeing with the prosecutor that "you didn't indicate this incident at the mall [on question 34, which asked if he had ever been arrested] because, in your mind, your 19-year-old-mind at the time, you didn't feel that it was an arrest." But a key purpose of a reference hearing is to resolve credibility issues arising from the testimony and evidence. ( People v. Boyette (2013) 56 Cal.4th 866 , 876, 157 Cal.Rptr.3d 163 , 301 P.3d 530 .) "[T]he refere

2018Cowan also points out that the juror's claim that he had forgotten about the 1995 incident is inconsistent with his testimony on cross-examination agreeing with the prosecutor that "you didn't indicate this incident at the mall [on question 34, which asked if he had ever been arrested] because, in your mind, your 19-year-old-mind at the time, you didn't feel that it was an arrest." But a key purpose of a reference hearing is to resolve credibility issues arising from the testimony and evidence. ( People v. Boyette (2013) 56 Cal.4th 866 , 876, 157 Cal.Rptr.3d 163 , 301 P.3d 530 .) "[T]he refere

2014The Attorney General notes that a reviewing court must decide whether the attorney’s representation “fell below an objective standard of reasonableness under prevailing professional norms” (People v. Mai (2013) 57 Cal.4th 986, 1009 [ 161 Cal.Rptr.3d 1 , 305 P.3d 1175 ]), not whether the attorney engaged, in the referee’s words, in the “best practice.” But we construe the referee’s finding in question as simply telling this court which portions of the evidence presented at the posttrial reference hearing would, in his view, have been useful for presentation by the defense at trial.

2014The Attorney General notes that a reviewing court must decide whether the attorney’s representation “fell below an objective standard of reasonableness under prevailing professional norms” (People v. Mai (2013) 57 Cal.4th 986, 1009 [ 161 Cal.Rptr.3d 1 , 305 P.3d 1175 ]), not whether the attorney engaged, in the referee’s words, in the “best practice.” But we construe the referee’s finding in question as simply telling this court which portions of the evidence presented at the posttrial reference hearing would, in his view, have been useful for presentation by the defense at trial.

2011The admission of rebuttal evidence is committed to the sound discretion of the presiding officer, here the referee, whose decision will not be disturbed in the absence of “ ' “palpable abuse.” ’ ” (People v. Kelly (1990) 51 Cal.3d 931, 965 [ 275 Cal.Rptr. 160 , 800 P.2d 516 ]; see People v. Raley (1992) 2 Cal.4th 870, 912 [ 8 Cal.Rptr.2d 678 , 830 P.2d 712 ].) At the reference hearing, petitioner had conceded the very point that the Attorney General sought to elicit through the question posed to prosecution expert Dr. Martell—that no causal relationship existed between petitioner’s childhood s

2011The admission of rebuttal evidence is committed to the sound discretion of the presiding officer, here the referee, whose decision will not be disturbed in the absence of “ ' “palpable abuse.” ’ ” (People v. Kelly (1990) 51 Cal.3d 931, 965 [ 275 Cal.Rptr. 160 , 800 P.2d 516 ]; see People v. Raley (1992) 2 Cal.4th 870, 912 [ 8 Cal.Rptr.2d 678 , 830 P.2d 712 ].) At the reference hearing, petitioner had conceded the very point that the Attorney General sought to elicit through the question posed to prosecution expert Dr. Martell—that no causal relationship existed between petitioner’s childhood s

2002This holding was wrong for the reasons explained in the dissenting opinion, which I joined. ( In re Jackson, supra, 3 Cal.4th 578, 616-678 , 11 Cal.Rptr.2d 531 , 835 P.2d 371 (dis. opn. of Mosk, J.).)

2002This holding was wrong for the reasons explained in the dissenting opinion, which I joined. ( In re Jackson, supra, 3 Cal.4th 578, 616-678 , 11 Cal.Rptr.2d 531 , 835 P.2d 371 (dis. opn. of Mosk, J.).)

2002(See Burger v. Kemp, supra, 483 U.S. at p. 794 , 107 S.Ct. 3114 ; see also Wiggins v. Corcoran (4th Cir.2002) 288 F.3d 629, 640 .) Although the referee found that counsel could have discovered the mitigating evidence presented at the reference hearing with "simple persistence," it is equally clear petitioner insisted they not involve his family.

2002(See Burger v. Kemp, supra, 483 U.S. at p. 794 , 107 S.Ct. 3114 ; see also Wiggins v. Corcoran (4th Cir.2002) 288 F.3d 629, 640 .) Although the referee found that counsel could have discovered the mitigating evidence presented at the reference hearing with "simple persistence," it is equally clear petitioner insisted they not involve his family.

1997This presumption of prejudice “ ‘may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party [resulting from the misconduct], . . .’” (People v. Miranda (1987) 44 Cal.3d 57, 117 [ 241 Cal.Rptr. 594 , 744 P.2d 1127 ], quoting Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417 [ 185 Cal.Rptr. 654 , 650 P.2d 1171 ]; Wiley v. Southern Pacific Transportation Co., supra, 220 Cal.App.3d at p. 189.) Respondent argues that even

1997This presumption of prejudice “ ‘may be rebutted by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party [resulting from the misconduct], . . .’” (People v. Miranda (1987) 44 Cal.3d 57, 117 [ 241 Cal.Rptr. 594 , 744 P.2d 1127 ], quoting Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 417 [ 185 Cal.Rptr. 654 , 650 P.2d 1171 ]; Wiley v. Southern Pacific Transportation Co., supra, 220 Cal.App.3d at p. 189.) Respondent argues that even

1995As explained in In re Cordero (1988) 46 Cal.3d 161, 171 , footnote 1 [ 249 Cal. Rptr. 342 , 756 P.2d 1370 ], our reference orders formerly asked the referee to answer ultimate legal questions, and not merely find the facts. (4) "We have now determined, however, that a referee should be asked only to make findings on disputed factual issues, and not to resolve legal issues arising from those facts." ( Ibid. ) (3b) The record of the reference hearing indicates the referee did not review the trial record.

1995As explained in In re Cordero (1988) 46 Cal.3d 161, 171 , footnote 1 [ 249 Cal. Rptr. 342 , 756 P.2d 1370 ], our reference orders formerly asked the referee to answer ultimate legal questions, and not merely find the facts. (4) "We have now determined, however, that a referee should be asked only to make findings on disputed factual issues, and not to resolve legal issues arising from those facts." ( Ibid. ) (3b) The record of the reference hearing indicates the referee did not review the trial record.