touchstone analysis in California

2013But it is not empty.” [Citation.] The touchstone for that standard, where a trial court is asked to dismiss a prior serious or violent felony conviction which qualifies as a strike “in furtherance of justice” pursuant to section 1385, subdivision (a) . . . is whether “in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convi

2000But it is not empty.’ (People v. Williams [(1998)] 17 Cal.4th [148,] 162 [ 69 Cal.Rptr.2d 917 , 948 P.2d 429 ].) The touchstone for that standard, where a trial court is asked to dismiss a prior serious or violent felony conviction which qualifies as a strike ‘in furtherance of justice’ pursuant to section 1385, subdivision (a) ... is whether ‘in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in

2022(Id. pp. 317–318.) The two-step interrogation process used here was denounced in Missouri v. Seibert (2004) 542 U.S. 600 (Seibert), which revisited Elstad.

2022(Id. pp. 317–318.) The two-step interrogation process used here was denounced in Missouri v. Seibert (2004) 542 U.S. 600 (Siebert), which revisited Elstad.

2022The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” (Miranda v. Arizona (1966) 384 U.S. 436 , 444– 445.) 24 confession. [Citations.]” (Id. at p. 310.) Thus, when considering whether an initial failure to warn taints any subsequent warned statement, the touchstone inquiry is whether both prewarning and postwarning statements were voluntary under the traditional due process test.

2022The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” (Miranda v. Arizona (1966) 384 U.S. 436, 444-445 .) 23 statement, the touchstone inquiry is whether both prewarning and postwarning statements were voluntary under the traditional due process test.

2015(Robinette, supra, 519 U.S. at p. 40 .) In South Dakota v. Neville, supra, 459 U.S. 553 (Neville), the United States Supreme Court considered whether admitting into evidence at trial a defendant’s refusal to submit to a test under an implied consent law violated the defendant’s right against self-incrimination under the Fifth Amendment.

2015(Robinette, supra, 519 U.S. at p. 40 .) In South Dakota v. Neville (1983) 459 U.S. 553 (Neville), the United States Supreme Court considered whether admitting into evidence at trial a defendant’s refusal to submit to a 12 test under an implied consent law violated the defendant’s right against self-incrimination under the Fifth Amendment.

2015The United States Supreme Court recognized that, in applying the touchstone test of reasonableness under the Fourth Amendment, measured in objective terms by examining the totality of the circumstances, “we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.” (Robinette, supra, 519 U.S. at p. 39 .) The court cited and quoted Schneckloth , and concluded that “just as it ‘would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning,’ [citation], so too would it be unr

2015The United States Supreme Court recognized that, in applying the touchstone test of reasonableness under the Fourth Amendment, measured in objective terms by examining the totality of the circumstances, “we have consistently eschewed bright-line rules, instead emphasizing the fact- specific nature of the reasonableness inquiry.” (Robinette, supra, 519 U.S. at p. 39 .) The Court cited and quoted Schneckloth, and concluded that “just as it ‘would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning,’ [citation], so too would it be unr

2015(Michigan v. Long (1983) 463 U.S. 1032, 1051 ; Terry, supra, 392 U.S. at p. 19 .) A detention is reasonable under the Fourth Amendment, and therefore legal, “when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231 .) McNeill claims “the mere presence of a shotgun in [his] private garage could not possibly provide [Deputy] Barron with reasonable suspicion” that he was engaged in

2014Indeed, the principal function of [police] investigation is to resolve that very ambiguity . . . .’” (Souza, supra, 9 Cal.4th at p. 233 .) 16 b.

2015The United States Supreme Court recognized that, in applying the touchstone test of reasonableness under the Fourth Amendment, measured in objective terms by examining the totality of the circumstances, “we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.” (Robinette, supra, 519 U.S. at p. 39 .) The court cited and quoted Schneckloth , and concluded that “just as it ‘would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning,’ [citation], so too would it be unr

2015The United States Supreme Court recognized that, in applying the touchstone test of reasonableness under the Fourth Amendment, measured in objective terms by examining the totality of the circumstances, “we have consistently eschewed bright-line rules, instead emphasizing the fact- specific nature of the reasonableness inquiry.” (Robinette, supra, 519 U.S. at p. 39 .) The Court cited and quoted Schneckloth, and concluded that “just as it ‘would be thoroughly impractical to impose on the normal consent search the detailed requirements of an effective warning,’ [citation], so too would it be unr

1989Discussion Although People v. Geiger, supra, 35 Cal.3d 510 , provides the touchstone for our analysis, before discussing Geiger a brief preface may be useful.

1987The Supreme Court reversed, advising at the outset: “[W]e find no reason in law, justice, or common sense why a jury that is not persuaded of the defendant’s guilt of the charged offense should not have the opportunity to find him guilty of a lesser related offense where, as here, the lesser offense is closely related to that charged, there is evidence of its commission, and defendant’s theory of defense is consistent with such a finding____[W]ell-established principles of constitutional dimension ... support the giving of instructions upon request in such a situation____” (People v. Geiger, s

2023Opinion of the Court by Groban, J. 35 F.4th at p. 680 .) The touchstone of this inquiry is whether there is a federal standard under Part C that supersedes the duty alleged under state law or regulation.

2023(United States v. Bajakajian (1998) 524 U.S. 321, 337-338 .) The touchstone of this analysis is whether the fine imposed “is grossly disproportional to the gravity of a defendant’s offense.” (Id. at p. 334.) These same factors apply to determine whether a fine is excessive under Article I, section 17 of the California Constitution.

2023While this assertion is partially correct, the access to confidential information may not be purely theoretical; rather, “ ‘disqualification is proper where, as a result of a prior representation or through improper means, there is a reasonable probability counsel has obtained information the court believes would likely be used advantageously against an adverse party during the course of the litigation.’ ” (McDermott, supra, 10 Cal.App.5th at 28 p. 1120; cf. Adams, supra, 86 Cal.App.4th at p. 1340 [concluding “disqualification should not be ordered where there is no reasonable probability the

2022(Aviation Data, Inc. v. American Express Travel Related Services Co., Inc. (2007) 152 Cal.App.4th 1522, 1535 ; Lake Communications, Inc. v. ICC Corp. (9th Cir. 1984) 738 F.2d 1473 , 1477.) Under federal law, the presence or absence of prejudice from the litigation of the dispute before a defense motion to compel arbitration is critical to the waiver determination.

2022(Aviation Data, Inc. v. American Express Travel Related Services Co., Inc. (2007) 152 Cal.App.4th 1522, 1535 ; Lake Communications, Inc. v. ICC Corp. (9th Cir. 1984) 738 F.2d 1473 , 1477.) Under federal law, the presence or absence of prejudice from the litigation of the dispute before a defense motion to compel arbitration is critical to the waiver determination.

2022Co. (1963) 217 Cal.App.2d 143, 144 ; Williams v. Dougan (1959) 175 Cal.App.2d 414 , 418– 419; Geisenhoff v. Mabrey (1943) 58 Cal.App.2d 481, 482 ; Spellmire, supra, 6 Cal.App.2d at p. 551 ; Kimes v. Davidson Inv.

2022(Gaines, supra, 62 Cal.4th at p. 1101 .) “This rule reflects the Legislature’s understanding that a reasonably diligent plaintiff should be able to bring the case to trial within the relatively lengthy period of five years notwithstanding such ordinary delays. [Citation.] To hold otherwise would allow plaintiffs to litigate piecemeal every period, no matter how short, in which it was literally impracticable to try the case, thus rendering the statute ‘utterly 10 indeterminate, subjective, and unadministerable.’ ” (Ibid.) Filtering out things that “are ordinary steps in the prosecution of the a

2022(Gaines, supra, 62 Cal.4th at p. 1101 .) “This rule reflects the Legislature’s understanding that a reasonably diligent plaintiff should be able to bring the case to trial within the relatively lengthy period of five years notwithstanding such ordinary delays. [Citation.] To hold otherwise would allow plaintiffs to litigate piecemeal every period, no matter how short, in which it was literally impracticable to try the case, thus rendering the statute ‘utterly 10 indeterminate, subjective, and unadministerable.’ ” (Ibid.) Filtering out things that “are ordinary steps in the prosecution of the a

2022Co. (1963) 217 Cal.App.2d 143, 144 ; Williams v. Dougan (1959) 175 Cal.App.2d 414 , 418– 419; Geisenhoff v. Mabrey (1943) 58 Cal.App.2d 481, 482 ; Spellmire, supra, 6 Cal.App.2d at p. 551 ; Kimes v. Davidson Inv.

2022Co. (1963) 217 Cal.App.2d 143, 144 ; Williams v. Dougan (1959) 175 Cal.App.2d 414 , 418– 419; Geisenhoff v. Mabrey (1943) 58 Cal.App.2d 481, 482 ; Spellmire, supra, 6 Cal.App.2d at p. 551 ; Kimes v. Davidson Inv.

2022Co. (1963) 217 Cal.App.2d 143, 144 ; Williams v. Dougan (1959) 175 Cal.App.2d 414 , 418– 419; Geisenhoff v. Mabrey (1943) 58 Cal.App.2d 481, 482 ; Spellmire, supra, 6 Cal.App.2d at p. 551 ; Kimes v. Davidson Inv.

2022Co. (1963) 217 Cal.App.2d 143, 144 ; Williams v. Dougan (1959) 175 Cal.App.2d 414 , 418– 419; Geisenhoff v. Mabrey (1943) 58 Cal.App.2d 481, 482 ; Spellmire, supra, 6 Cal.App.2d at p. 551 ; Kimes v. Davidson Inv.

2022Children’s Hospital Central California explained that “[t]he burden is on the person making the quantum meruit claim to show the value of the services,” and the touchstone of this analysis is “the price that would be agreed upon by a willing buyer and a willing seller negotiating at arm’s length.” (See 4 (See Sanjiv Goel, M.D., Inc. v. Regal Medical Group, Inc. (2017) 11 Cal.App.5th 1054, 1057 ; Moore v. Mercer (2016) 4 Cal.App.5th 424 , 427–428, 436; Children’s Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4th 1260 , 1264–1265 (Children’s Hospital Central Californ

2022Children’s Hospital Central California explained that “[t]he burden is on the person making the quantum meruit claim to show the value of the services,” and the touchstone of this analysis is “the price that would be agreed upon by a willing buyer and a willing seller negotiating at arm’s length.” (See 4 (See Sanjiv Goel, M.D., Inc. v. Regal Medical Group, Inc. (2017) 11 Cal.App.5th 1054, 1057 ; Moore v. Mercer (2016) 4 Cal.App.5th 424 , 427–428, 436; Children’s Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4th 1260 , 1264–1265 (Children’s Hospital Central Californ

2022Children’s Hospital Central California explained that “[t]he burden is on the person making the quantum meruit claim to show the value of the services,” and the touchstone of this analysis is “the price that would be agreed upon by a willing buyer and a willing seller negotiating at arm’s length.” (See 4 (See Sanjiv Goel, M.D., Inc. v. Regal Medical Group, Inc. (2017) 11 Cal.App.5th 1054, 1057 ; Moore v. Mercer (2016) 4 Cal.App.5th 424 , 427–428, 436; Children’s Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4th 1260 , 1264–1265 (Children’s Hospital Central Californ

2021(Elstad, supra, 470 U.S. at p. 309 .) The high court acknowledged, however, that if the prewarning statement is the product of actual coercion, “the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession.” (Id. at p. 310.) Thus, whether an initial failure to warn taints any subsequent warned statement, the touchstone inquiry is whether both prewarning and postwarning statements were voluntary under the traditional due process test.