hearing requirement in California

2008(Royal Convalescent Hospital, Inc. v. State Board of Control (1979) 99 Cal.App.3d 788, 791-792 [ 160 Cal.Rptr. 458 ] [unilateral submission of grievance to agency and administrative appeal based solely on information from claimant was not a hearing under section 1094.5].) The Department argues plaintiff’s written request for a rent increase, and the Department’s denial of the request based upon its review of his paperwork, constituted a “paper hearing.” The Department cites case law such as Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383 [ 61 Cal

2008(Royal Convalescent Hospital, Inc. v. State Board of Control (1979) 99 Cal.App.3d 788, 791-792 [ 160 Cal.Rptr. 458 ] [unilateral submission of grievance to agency and administrative appeal based solely on information from claimant was not a hearing under section 1094.5].) The Department argues plaintiff’s written request for a rent increase, and the Department’s denial of the request based upon its review of his paperwork, constituted a “paper hearing.” The Department cites case law such as Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383 [ 61 Cal

2008DISCUSSION I Grandmother first contends that “[d]enial of [her] de facto parent status without a hearing was error as she made the necessary prima facie showing.” “The concept of de facto parent has been judicially created to recognize limited rights in dependency cases for a person who has been found by the juvenile court to have assumed, on a day-to-day basis, the role of a parent, fulfilling the child’s physical and psychological needs.” (In re Leticia S. (2001) 92 Cal.App.4th 378, 381 [ 111 Cal.Rptr.2d 810 ].) “The purpose of conferring de facto parent status is to ‘ensure that all legitim

2008DISCUSSION I Grandmother first contends that “[d]enial of [her] de facto parent status without a hearing was error as she made the necessary prima facie showing.” “The concept of de facto parent has been judicially created to recognize limited rights in dependency cases for a person who has been found by the juvenile court to have assumed, on a day-to-day basis, the role of a parent, fulfilling the child’s physical and psychological needs.” (In re Leticia S. (2001) 92 Cal.App.4th 378, 381 [ 111 Cal.Rptr.2d 810 ].) “The purpose of conferring de facto parent status is to ‘ensure that all legitim

2008(Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1391-1392 [ 61 Cal.Rptr.2d 297 ]; see Mahdavi v. Fair Employment Practice Com. (1977) 67 Cal.App.3d 326, 334 [ 136 Cal.Rptr. 421 ].) Since, as we have concluded, the SPB’s decision was made as the result of a proceeding in which evidence was required to be given and considered by the executive officer, its validity can be challenged by a petition for a writ of mandate.

2008(Friends of the Old Trees v. Department of Forestry & Fire Protection (1997) 52 Cal.App.4th 1383, 1391-1392 [ 61 Cal.Rptr.2d 297 ]; see Mahdavi v. Fair Employment Practice Com. (1977) 67 Cal.App.3d 326, 334 [ 136 Cal.Rptr. 421 ].) Since, as we have concluded, the SPB’s decision was made as the result of a proceeding in which evidence was required to be given and considered by the executive officer, its validity can be challenged by a petition for a writ of mandate.

1967Code, §§ 1200, 1 1201) that the question be asked is substantial and a failure to ask it is fatal to the judgment if defendant has been deprived of counsel [citation], it is not fatal where defendant is present and represented by counsel and no prejudice appears [citations].” (People v. Thomas, 45 Cal.2d 433, 438 [ 290 P.2d 491 ].) Omission of the allocution is in itself not necessarily prejudicial (In re Grayson, 242 Cal.App.2d 110, 114 [ 51 Cal.Rptr. 145 ]) and “where the defendant is, as herein, represented by counsel the case will not be reversed in the absence of a showing of some prejudi

1967Code, §§ 1200, 1 1201) that the question be asked is substantial and a failure to ask it is fatal to the judgment if defendant has been deprived of counsel [citation], it is not fatal where defendant is present and represented by counsel and no prejudice appears [citations].” (People v. Thomas, 45 Cal.2d 433, 438 [ 290 P.2d 491 ].) Omission of the allocution is in itself not necessarily prejudicial (In re Grayson, 242 Cal.App.2d 110, 114 [ 51 Cal.Rptr. 145 ]) and “where the defendant is, as herein, represented by counsel the case will not be reversed in the absence of a showing of some prejudi

1967It Is Therefore Ordered . . . that . . . defendant be punished by imprisonment in the County Jail . . . for the term of one year. ’ ’ Appellant contends that the court did not comply with section 1200 of the Penal Code in that “At no time during the hearing on the violation of probation did the court ask the defendant whether he had any legal cause to show why the judgment should not be pronounced against him. ’ ’ Section 1200 of the Penal Code provides in part that when the defendant appears for judgment he must be asked whether he has any legal cause to show why judgment should not be pronou

1967It Is Therefore Ordered . . . that . . . defendant be punished by imprisonment in the County Jail . . . for the term of one year. ’ ’ Appellant contends that the court did not comply with section 1200 of the Penal Code in that “At no time during the hearing on the violation of probation did the court ask the defendant whether he had any legal cause to show why the judgment should not be pronounced against him. ’ ’ Section 1200 of the Penal Code provides in part that when the defendant appears for judgment he must be asked whether he has any legal cause to show why judgment should not be pronou

1954It is not necessary, however, to determine whether the proceedings on March 1, 1954, constituted a hearing on violation of probation. “ [T]here is neither a constitutional nor a statutory right to notice and hearing preceding revocation of probation.” (In re Davis, 37 Cal.2d 872, 873 [ 236 P.2d 579 ]; and cases cited therein.) In that ease the court disapproved In re Cook, 67 Cal.App.2d 20 [ 153 P.2d 578 ] (relied upon by appellant herein), insofar as it is inconsistent with the court’s conclusion.

1954It is not necessary, however, to determine whether the proceedings on March 1, 1954, constituted a hearing on violation of probation. “ [T]here is neither a constitutional nor a statutory right to notice and hearing preceding revocation of probation.” (In re Davis, 37 Cal.2d 872, 873 [ 236 P.2d 579 ]; and cases cited therein.) In that ease the court disapproved In re Cook, 67 Cal.App.2d 20 [ 153 P.2d 578 ] (relied upon by appellant herein), insofar as it is inconsistent with the court’s conclusion.

2016(In re Griffin (1967) 67 Cal.2d 343, 346 .) However, under Penal Code section 1203.2, subdivision (a), “if a trial court summarily revokes probation during the probationary period, the summary revocation ‘serve[s] to toll the running of the probationary period.’ Because of this tolling, the hearing on the violation, the court's ruling, and the imposition of sentence may all occur even after the probationary period would otherwise have expired.” (People v. Burton (2009) 177 Cal.App.4th 194, 199 .) Defendant’s probation was summarily revoked in August 2011 based on the filing of the new criminal

2013On April 26, 2010 the trial court summarily revoked Martinez’s probation, thus tolling the running of the probation period. (§ 1203.2, subd. (a) [summary revocation of probation “shall serve to toll the running” of the probation period]; People v. Burton (2009) 177 Cal.App.4th 194, 199 [“[b]ecause of this tolling [under § 1203.2, subd. (a)], the hearing on the violation, the court’s ruling, and the imposition of sentence may all occur even after the probationary period would otherwise have expired”].) Thus, with the 2 In response to our invitation to Martinez and the People to address whether

2021The People concede error and join defendant’s request to remand the matter for a Marsden hearing. 2 “Marsden holds that the trial court must afford the defendant an opportunity to express the specific reasons why he believes he is not being adequately represented by his current counsel when he makes a request for the appointment of new counsel.” (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1400 .) “Although no formal motion is necessary, there must be ‘at least some clear indication by defendant that he [or she] wants a substitute attorney.’ ” (People v. Mendoza (2000) 24 Cal.4th 130, 157

2017(People v. Sanchez (2011) 53 Cal.4th 80, 89-90 [ 133 Cal.Rptr.3d 564 , 264 P.3d 349 ] (Sanchez); People v. Mendoza (2000) 24 Cal.4th 130, 156-157 [ 99 Cal.Rptr.2d 485 , 6 P.3d 150 ]; People v. Lloyd, supra, 4 Cal.App.4th at p. 731 .) This hearing requirement stems from Marsden itself, which gave rise to the term of art “Marsden hearing” to describe the proceeding at which such requests are to be resolved.

2015While the court “may order an in camera hearing to determine whether or not the defense is entitled to receive the documents” (ibid.) and may elect to invite the prosecution to participate in and argue at a hearing on a defense subpoena duces tecum (see Kling v. Superior Court (2010) 50 Cal.4th 1068, 1072 ; People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 750 ), the court would still be unlikely to have any context to make a meaningful evaluation pretrial, and in most instances would not have the benefit of an adversarial response.

2014Absent such compliance, . . . peace officer personnel records retain their confidentiality vis-a-vis the prosecution. [Citations.]” (Id. at p. 1046.) Alford establishes that prosecutors are not entitled to participate in a defendant’s Pitchess motion, but they are entitled to notice, to be present and to participate if the trial court so desires. ( Alford, supra, 29 Cal.4th at pp. 1044—1046; see People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 750 [ 76 Cal.Rptr.3d 276 , 182 P.3d 600 ].) Although the court’s analysis pertained to the People’s due process right to participate in a d

2007I, § 29) entitled it to notice, presence, and a right to be heard at Pitchess hearings, Alford stated that “as a party to the underlying criminal proceeding, the district attorney under general due process principles is entitled to notice of the date and place of the hearing on a defense Pitchess *211 motion.” 6 (Alford, supra, 29 Cal.4th at p. 1044 , italics added.) However, the court rejected the prosecution’s argument it was entitled to participate in a Pitchess hearing and receive any disclosed Pitchess information, stating the district attorney “overstates the extent of his legitimate int

2007The prosecution is entitled to discovery from the defense only in accordance with Penal Code sections 1054.3 and 1054.7. [Citations.]” (Alford, supra, 29 Cal.4th at p. 1046 .) The court noted the prosecution was free to file its own Pitchess disclosure motion “by complying with the procedure set forth in Evidence Code sections 1043 and 1045.” (Alford, supra, 29 Cal.4th at p. 1046 , fn. omitted.) 7 “Absent such compliance, . . . peace officer personnel records retain their confidentiality vis-a-vis the prosecution. [Citations.]” (Alford, supra, 29 Cal.4th at p. 1046 , fn. omitted.) Therefore, A

1991Although it is possible that a Marsden hearing took place, the record is vague on the exact nature and extent of the hearing and inquiry into defendant's dissatisfaction with Mr. Murphy. [14] After the court accepted the plea but before sentencing, defense counsel gave his closing argument and said, "everybody agrees that Mr. Wharton has ... serious mental problems." The trial judge broke in and said, "Well, lest my silence be taken as an acquiescence in what you state, let me state that I don't think he has any mental problem." When counsel disagreed, the judge replied that the expert witness

1991Although it is possible that a Marsden hearing took place, the record is vague on the exact nature and extent of the hearing and inquiry into defendant's dissatisfaction with Mr. Murphy. [14] After the court accepted the plea but before sentencing, defense counsel gave his closing argument and said, "everybody agrees that Mr. Wharton has ... serious mental problems." The trial judge broke in and said, "Well, lest my silence be taken as an acquiescence in what you state, let me state that I don't think he has any mental problem." When counsel disagreed, the judge replied that the expert witness

1993App. Bd. (1969) 2 Cal. App.3d 693 [ 83 Cal. Rptr. 51 ], the court observing: "Section 5814 requires the penalty to be imposed on the `full amount of the order, decision or award' and thus must be applied to prior *1231 payments of compensation made under compulsion of an award. [Citation.] But payments voluntarily made before a hearing on a claim are not deemed to be a part of the award for penalty purposes `even though the order making the award purports to cover the period during which such payments are made....'" ( Id. at p. 698, quoting Langer v. Workmen's Comp.

1993App. Bd. (1969) 2 Cal. App.3d 693 [ 83 Cal. Rptr. 51 ], the court observing: "Section 5814 requires the penalty to be imposed on the `full amount of the order, decision or award' and thus must be applied to prior *1231 payments of compensation made under compulsion of an award. [Citation.] But payments voluntarily made before a hearing on a claim are not deemed to be a part of the award for penalty purposes `even though the order making the award purports to cover the period during which such payments are made....'" ( Id. at p. 698, quoting Langer v. Workmen's Comp.

1993App. Bd., supra, 258 Cal. App.2d at p. 406, fn. 2 .) Other courts have also adopted this construction of section 5814.

1969App. Bd., supra, 258 Cal.App.2d 400, 406-407 .) But payments voluntarily made before a hearing on a claim are not deemed to be a part of the award for penalty purposes “even though the order making the award purports to cover the period during which such payments are made. . . .” (Longer v. Workmen’s Comp.

2025(See, e.g., Miller v. City of Philadelphia (1991) 174 F.3d 368 , 372-374; see also Lossman v. Pekarske (7th Cir. 1983) 707 F.2d 288, 291 [“When a child’s safety is threatened, that is justification enough for action first and hearing afterward.”].) That is exactly what happened here.

2024(People v. Cruz, supra, 44 Cal.3d at p. 1254, fn. 5 ; People v. Masloski (2001) 25 Cal.4th 1212, 1219-1224 .) When the parties agree as part of the plea bargain to a specific sanction for 4 This woman was identified as S.H., a spectator whom the court admonished for making facial expressions during T.J.’s testimony. 5 The parties agreed the same arguments applied to the preliminary hearing as to the hearing on the violation of the Cruz waiver.