judicially created exception in California

2026Analysis “In California, a single act or course of conduct by a defendant can lead to convictions ‘of any number of the offenses charged.’” (People v. Montoya (2004) 33 Cal.4th 1031, 1034 , quoting § 954 [italics in Montoya].) “But a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses.” (Ibid.) “When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and th

2025“A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ (People v. Montoya, supra, 33 Cal.4th at p. 1034 .) ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the 10 latter is a lesser included offense within the former.’ (People v. Lopez (1998) 19 Cal.4th 282, 288 .)” (Reed, supra, 38 Cal.4th at p. 1227 .) Reed went on to hold that “the accusatory pleading test does not apply in deciding whether multiple conviction of charged offenses is proper. . . .

2026(People v. Ortega (2015) 240 Cal.App.4th 956, 965 .) The judicially-created exception Pursuant to section 954, a person may be convicted of more than one crime arising out of the same act or course of conduct. (§ 954; see also People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed).) Multiple convictions have the potential to result in duplicative punishment, violative of principles of due process and double jeopardy.

2025(Pope, supra, 50 Cal.4th at p. 782 .) In such a case, the defendant “still ‘is convicted’ of those offenses.” (Id. at p. 784.) Thus the Legislature intended 9 There is a judicially created exception to multiple convictions “ ‘based on necessarily included offenses,’ ” which are crimes that “ ‘cannot be committed without also necessarily committing a lesser offense . . . .’ ” (Reed, supra, 38 Cal.4th at p. 1227 .) None of the offenses here can properly be considered lesser offenses of each other. 10 In People v. Lara (2012) 54 Cal.4th 896 , the California Supreme Court observed that it “need no

2017(See Pitchess v. Superior Court (1974) 11 Cal.3d 531 , 535, 113 Cal.Rptr. 897 , 522 P.2d 305 ["[T]he right of an accused to seek discovery in the course of preparing his defense to a criminal prosecution is a judicially created doctrine evolving in the absence of guiding legislation."].) Under the SCA, the trial court can order the account holder to consent to the disclosure by Facebook under section 2702(b)(3) which allows a provider to divulge the contents of a communication "with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscri

2017(See Pitchess v. Superior Court (1974) 11 Cal.3d 531 , 535, 113 Cal.Rptr. 897 , 522 P.2d 305 ["[T]he right of an accused to seek discovery in the course of preparing his defense to a criminal prosecution is a judicially created doctrine evolving in the absence of guiding legislation."].) Under the SCA, the trial court can order the account holder to consent to the disclosure by Facebook under section 2702(b)(3) which allows a provider to divulge the contents of a communication "with the lawful consent of the originator or an addressee or intended recipient of such communication, or the subscri

2024(See, e.g., People v. Sanders (2012) 55 Cal.4th 731, 736 [judicially created rule prohibits multiple convictions based on necessarily included offenses]; People v. Ortega (1998) 19 Cal.4th 686, 692 [“A defendant who commits a battery may not be convicted of both battery and assault, because ‘[a]n assault is a necessary element of battery, and it is impossible to commit battery without assaulting the victim.’ ”].) This judicially created rule, Bogus contends, gave the trial court another basis for striking the lesser section 12022.5 and 12022.53 enhancements, which means that the court did 6 no

2022“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. ‘In California, a single act or course of conduct by a defendant can lead to convictions “of any number of the offenses charged.”’” (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed).) “A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ [Citation.] ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the 4 latter is a

2023Legal Principles “[E]quitable tolling . . . allows courts to exercise their inherent equitable powers to excuse parties’ failure to comply with technical deadlines when justice so requires.” (Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710 , 730 (Saint Francis I).) Where applicable, the judicially created doctrine “will ‘suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.’ ” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99 (McDonald).) The doctrine emerged from three lines of

2022“Equitable tolling is a judicially created doctrine that, where applicable, will ‘ “suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.” ’ (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99 (McDonald).)” (Long v. Forty Niners Football Co., LLC (2019) 33 Cal.App.5th 550 , 554-555 (Long).) As with other general equitable principles, the doctrine of equitable tolling “is applied flexibly to ‘ensure fundamental practicality and fairness.’ ” (J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 658 .)

2026(Pearson, supra, 42 Cal.3d at p. 355 .) In conducting our analysis, we are mindful that the dismissal requirement for a lesser included offense is a judicially-created exception to section 954 – a statute that expressly permits multiple convictions for the same act.

2026(Pearson, supra, 42 Cal.3d at p. 363, fn. 4 [recommending dismissal of stayed convictions upon completion of sentence to avoid use of conviction as future priorable offense].) While we are not aware of a compelling justification for the judicially-created exception, our Supreme Court has limited its application.

2023“Under the one final judgment rule, ‘“an appeal may be taken only from the final judgment in an entire action.”’” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 756 (Baycol).) The death knell doctrine is a judicially created exception to the one final judgment rule.

2017The March 23rd order dismissing class claims while the PAGA claim remained pending was not an appealable order The death knell doctrine, a judicially created exception to the one final judgment rule, treats an order that dismisses class claims while allowing individual claims to survive as an appealable order. ( In re Baycol Cases I & II (2011) 51 Cal.4th 751 , 757, 122 Cal.Rptr.3d 153 , 248 P.3d 681 ( Baycol ) [under the "death knell doctrine," when an "order effectively [rings] the death knell for the class claims, [the court] treat[s] it as in essence a final judgment on those claims, which

2025“A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ (People v. Montoya, supra, 33 Cal.4th at p. 1034 .) ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the 10 latter is a lesser included offense within the former.’ (People v. Lopez (1998) 19 Cal.4th 282, 288 .)” (Reed, supra, 38 Cal.4th at p. 1227 .) Reed went on to hold that “the accusatory pleading test does not apply in deciding whether multiple conviction of charged offenses is proper. . . .

2022“In California, a single act or course of conduct by a defendant can lead to convictions ‘of any number of the offenses charged.’ [Citations.] But a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses.” (People v. Montoya (2004) 33 Cal.4th 1031, 1034 .) “Our state high court has 4 The jury was instructed on both imperfect self-defense and heat of passion theories of attempted voluntary manslaughter. 11 long held that multiple convictions may not be based on necessarily included offenses.” (People v. Murphy (2007) 154 Cal.App.4th 979,

1985“Unlike the statutory development of civil discovery in California, the right of an accused to seek discovery in the course of preparing his defense to a criminal prosecution is a judicially created doctrine evolving in the absence of guiding legislation.” (Pi tchess v. Superior Court (1974) 11 Cal.3d 531, 535 [ 113 Cal.Rptr. 897 , 522 P.2d 305 ].) “Authority for such discovery derives not from statute but from the inherent power of every court to develop rules of procedure aimed at facilitating the administration of criminal justice and promoting the orderly ascertainment of the truth.” (Joe

1985“Unlike the statutory development of civil discovery in California, the right of an accused to seek discovery in the course of preparing his defense to a criminal prosecution is a judicially created doctrine evolving in the absence of guiding legislation.” (Pi tchess v. Superior Court (1974) 11 Cal.3d 531, 535 [ 113 Cal.Rptr. 897 , 522 P.2d 305 ].) “Authority for such discovery derives not from statute but from the inherent power of every court to develop rules of procedure aimed at facilitating the administration of criminal justice and promoting the orderly ascertainment of the truth.” (Joe

1978Co., 48 Cal.2d 31, 39 [ 307 P.2d 359 ]), and we are of the view that a judicially created presumption of prejudice, whether conclusive or rebuttable, is unwarranted (in accord: Allen v. Cheatum, supra, 351 Mich. 585 ). [¶] Margellini v. Pacific Automobile Ins.

1978Co., 48 Cal.2d 31, 39 [ 307 P.2d 359 ]), and we are of the view that a judicially created presumption of prejudice, whether conclusive or rebuttable, is unwarranted (in accord: Allen v. Cheatum, supra, 351 Mich. 585 ). [¶] Margellini v. Pacific Automobile Ins.

2026Analysis “In California, a single act or course of conduct by a defendant can lead to convictions ‘of any number of the offenses charged.’” (People v. Montoya (2004) 33 Cal.4th 1031, 1034 , quoting § 954 [italics in Montoya].) “But a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses.” (Ibid.) “When a defendant is found guilty of both a greater and a necessarily lesser included offense arising out of the same act or course of conduct, and the evidence supports the verdict on the greater offense, that conviction is controlling, and th

2024(See, e.g., People v. Sanders (2012) 55 Cal.4th 731, 736 [judicially created rule prohibits multiple convictions based on necessarily included offenses]; People v. Ortega (1998) 19 Cal.4th 686, 692 [“A defendant who commits a battery may not be convicted of both battery and assault, because ‘[a]n assault is a necessary element of battery, and it is impossible to commit battery without assaulting the victim.’ ”].) This judicially created rule, Bogus contends, gave the trial court another basis for striking the lesser section 12022.5 and 12022.53 enhancements, which means that the court did 6 no

2022(People v. Hardy (1948) 33 Cal.2d 52, 63-64 [ 198 P.2d 865 ].) Although an instruction on this presumption has been approved, it has been highly criticized. [Citations.] [¶] The effect of this presumption is to place on the defendant a burden of producing evidence to dispel the presumption. [Citations.] However, if the defendant produces enough evidence to warrant an instruction on unconsciousness, the rebuttable presumption of consciousness has been dispelled and no instruction on its effect is necessary.

2022(People v. Hardy (1948) 33 Cal.2d 52, 63 (Hardy); Mathson, supra, 210 Cal.App.4th at p. 1317 .) As our high court explained, this presumption places a duty on the defendant to produce evidence “raising a reasonable doubt [in the minds of the jury that the defendant acted unconsciously], and not the duty to overcome the presumption by a preponderance of the evidence.” (Hardy, at p. 64.) A defendant’s professed inability to recall an event, without more, is insufficient evidence of unconsciousness.

2019(Mills v. Forestex Co. (2003) 108 Cal.App.4th 625, 641 ; see also In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 912 [the party invoking equitable tolling bears the burden of proving its applicability].) Long has not done so.

2019Equitable tolling is a judicially created doctrine that, where applicable, will " 'suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.' " ( McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88 , 99, 84 Cal.Rptr.3d 734 , 194 P.3d 1026 ( McDonald ).) "Broadly speaking, the doctrine applies ' "[w]hen an injured person has several legal remedies and, reasonably and in good faith, pursues one." ' [Citations.] Thus, it may apply where one action stands to lessen the harm that is the subject of a potential second action; where a

2024“In California, a single act or course of conduct can lead to convictions ‘of any number of the offenses charged.’ (§ 954 . . . .) However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses.” (People v. Ramirez (2009) 45 Cal.4th 980, 984 .) When a case “involves the conviction of multiple alternative charged offenses,” we apply the “elements” test to determine whether one offense is necessarily included in another.

2020“In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. ‘In California, a single act or course of conduct by a defendant can lead to convictions “of any number of the offenses charged.” ’ ” (People v. Reed (2006) 38 Cal.4th 1224, 1226-1227 .) “Section 954 generally permits multiple conviction.” (Id. at p. 1227.) “However, a judicially created exception to this rule prohibits multiple convictions based on necessarily included offenses.” (People v. Ramirez (2009) 45 Cal.4th 980, 984 .) “ ‘In deciding whether mult

2023Further, nothing we say here undermines our suggestion in dicta in People v. Sloan (2007) 42 Cal.4th 110 that if we were to consider a great bodily injury enhancement as part of the underlying offense for the purpose of either constitutional double jeopardy protections or the judicially created rule 18 In re CABRERA Opinion of the Court by Liu, J. prohibiting multiple convictions for necessarily included offenses, a conviction for willful infliction of corporal injury on a spouse with such an enhancement “would effectively establish the elements of . . . battery with serious bodily injury.” (I

2013It prohibits multiple punishment for the same “act or omission.” When section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited. [Citations.]’ [Citation.]” (People v. Sloan (2007) 42 Cal.4th 110, 116 .) A judicially created exception to the rule permitting multiple convictions prohibits multiple convictions where one is a necessarily included offense.

1986However, in Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616 [ 102 Cal.Rptr. 815 , 498 P.2d 1063 ], the Supreme Court announced a judicially created exception to the exclusive WCAB remedy prescribed by section 3602.

1986However, in Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616 [ 102 Cal.Rptr. 815 , 498 P.2d 1063 ], the Supreme Court announced a judicially created exception to the exclusive WCAB remedy prescribed by section 3602.

1988“Unlike the statutory development of civil discovery in California, the right of an accused to seek discovery in the course of preparing his defense to a criminal prosecution is a judicially created doctrine evolving in the absence of guiding legislation. [Citations.] A defendant’s motion to discover is addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interests of justice so demand. [Citations.] Allowing an accused the right to discover is based on the fundamental proposition that he is entitled to a fair trial and an intelligent

1988“Unlike the statutory development of civil discovery in California, the right of an accused to seek discovery in the course of preparing his defense to a criminal prosecution is a judicially created doctrine evolving in the absence of guiding legislation. [Citations.] A defendant’s motion to discover is addressed solely to the sound discretion of the trial court, which has inherent power to order discovery when the interests of justice so demand. [Citations.] Allowing an accused the right to discover is based on the fundamental proposition that he is entitled to a fair trial and an intelligent

2017The March 23rd order dismissing class claims while the PAGA claim remained pending was not an appealable order The death knell doctrine, a judicially created exception to the one final judgment rule, treats an order that dismisses class claims while allowing individual claims to survive as an appealable order. ( In re Baycol Cases I & II (2011) 51 Cal.4th 751 , 757, 122 Cal.Rptr.3d 153 , 248 P.3d 681 ( Baycol ) [under the "death knell doctrine," when an "order effectively [rings] the death knell for the class claims, [the court] treat[s] it as in essence a final judgment on those claims, which

2017The March 23rd order dismissing class claims while the PAGA claim remained pending was not an appealable order The death knell doctrine, a judicially created exception to the one final judgment rule, treats an order that dismisses class claims while allowing individual claims to survive as an appealable order. ( In re Baycol Cases I & II (2011) 51 Cal.4th 751 , 757, 122 Cal.Rptr.3d 153 , 248 P.3d 681 ( Baycol ) [under the "death knell doctrine," when an "order effectively [rings] the death knell for the class claims, [the court] treat[s] it as in essence a final judgment on those claims, which

2024Proc., § 1281.)” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 98 (Armendariz), fn. omitted.) One of “such grounds” is the judicially created doctrine of unconscionability, a subject we have distilled as follows: “In the seminal case of Armendariz 24 Cal.4th 83 , our Supreme Court addressed the validity of an arbitration agreement signed by employees, and held that the agreement was contrary to public policy and unlawful.

2024Proc., § 1281.)” (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 98 (Armendariz), fn. omitted.) One of “such grounds” is the judicially created doctrine of unconscionability, a subject we have distilled as follows: “In the seminal case of Armendariz 24 Cal.4th 83 , our Supreme Court addressed the validity of an arbitration agreement signed by employees, and held that the agreement was contrary to public policy and unlawful.

2026In fact, Saint Francis acknowledged that “equitable tolling” is “a judicially created doctrine” and a “court may conclude that explicit statutory language or a manifest policy underlying a statute simply cannot be reconciled with permitting equitable tolling.” (Saint Francis, supra, 9 Cal.5th at pp. 717, 720.) More than five years after Saint Francis was decided, a leading treatise still cautions counsel that dismissal for failure to serve will not toll the time bar: “The statutes governing dismissal (CCP § 583.110 et seq.) mandate diligent prosecution of pending actions.

2023Legal Principles “[E]quitable tolling . . . allows courts to exercise their inherent equitable powers to excuse parties’ failure to comply with technical deadlines when justice so requires.” (Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710 , 730 (Saint Francis I).) Where applicable, the judicially created doctrine “will ‘suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness.’ ” (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99 (McDonald).) The doctrine emerged from three lines of

2023A. Applicable Law “In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct. ‘In California, a single act or course of conduct by a defendant can lead to convictions “of any number of the offenses charged.”’” (People v. Reed (2006) 38 Cal.4th 1224, 1226 .) “A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’” (Id. at p. 1227.) “‘[I]f a crime cannot be committed without also necessarily committing a lesser offense

2020Code, § 954; People v. Reed (2006) 38 Cal.4th 1224, 1227 .) Stated differently, “[t]he law prohibits simultaneous convictions for both a greater offense and a lesser offense 11 necessarily included within it, when based on the same conduct.” (People v. Milward (2011) 52 Cal.4th 580, 589 .) When the multiple convictions are for crimes arising from separate acts, however, there is no violation of Penal Code section 954.

2006Exclusion of the Immunosciences Mycotoxin Antibody Test and the IBT Blood Serology Test Appellants contend that the trial court erroneously applied the Kelly/Frye test to exclude the results of the Immunosciences mycotoxin antibody test and the IBT blood serology test. “[T]he Kelly/Frye test constitutes a judicially created rule relating to the admissibility of certain types of evidence . . . .” (People v. Wilkinson (2004) 33 Cal.4th 821, 845 [ 16 Cal.Rptr.3d 420 , 94 P.3d 551 ].) “[UJnder the Kelly-Frye rule the proponent of evidence derived from a new scientific methodology must satisfy thre

2006Exclusion of the Immunosciences Mycotoxin Antibody Test and the IBT Blood Serology Test Appellants contend that the trial court erroneously applied the Kelly/Frye test to exclude the results of the Immunosciences mycotoxin antibody test and the IBT blood serology test. “[T]he Kelly/Frye test constitutes a judicially created rule relating to the admissibility of certain types of evidence . . . .” (People v. Wilkinson (2004) 33 Cal.4th 821, 845 [ 16 Cal.Rptr.3d 420 , 94 P.3d 551 ].) “[UJnder the Kelly-Frye rule the proponent of evidence derived from a new scientific methodology must satisfy thre

2015(Green, supra, 29 Cal.3d at p. 144.) Nor, respondents claim, can petitioners show the beneficial interest requisite for mandamus.

2015(Green, supra, 29 Cal.3d at p. 144 .) Nor, respondents 17 Petitioner Marquez did not present J.O.’s BIC to Kaiser or otherwise advise Kaiser that he had Medi-Cal coverage. 42 claim, can petitioners show a beneficial interest requisite for mandamus.