per se rule in California

2023Prejudice If a petitioner was not present at the hearing, the reviewing court must determine “whether his [or her] absence was harmless beyond a reasonable doubt.” (Basler, supra, 80 Cal.App.5th at p. 59, citing Chapman v. California (1967) 386 U.S. 18, 24 .) During oral argument, respondent criticized Basler as adopting, in effect, a per se standard of reversal whenever the defendant is absent from an evidentiary hearing held under section 1172.6.

1987Whether or not the per se rule of Garcia applies (cf. Rose v. Clark (1986) 478 U.S. 570 [ 92 L.Ed.2d 460 , 106 S.Ct. 3101 ] and People v. Rodriquez *139 (1986) 42 Cal.3d 1005 , 1012-1013 with People v. Modesto (1963) 59 Cal.2d 722 [ 31 Cal.Rptr. 225 , 382 P.2d 33 ]), the error is one of constitutional dimension (In re Winship (1970) 397 U.S. 358 [ 25 L.Ed.2d 368 , 905 S.Ct. 1068 ]), requiring, under Chapman v. California (1967) 386 U.S. 18, 24 [ 17 L.Ed.2d 705, 710-711 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ], that “before a federal constitutional error can be held harmless, the court must be able

2015Indeed, in all but a few instances, the rule of disqualification in simultaneous representation cases is a per se or ‘automatic’ one. [Citations.]” ( Flatt, supra, 9 Cal.4th at pp. 284-285, original italics; see also Cobra Solutions, supra, 38 Cal.4th at p. 846 [“attorney who seeks to simultaneously represent clients with directly adverse interests in the same litigation will be automatically disqualified”].) This per se rule is appropriate because “[a] client who learns that his or her lawyer is also representing a *615 litigation adversary, even with respect to a matter wholly unrelated to t

2005It provides that there are exceptions to the per se rule against concurrent representation under certain circumstances: “[M]ost courts thus permit an attorney to continue the simultaneous representation of clients whose interests are adverse as to unrelated matters provided full disclosure is made and both agree in writing to waive the conflict. [Citations.] But this class of cases is a rare circumstance, . . . and overcoming the presumption of ‘prima facie impropriety’ is not easily accomplished. [Citations.]” (Flatt v. Superior Court, supra, 9 Cal.4th at p. 285, fn. 4.) Here, of course, if n

1987V, Inc. v. GTE Sylvania, Inc. (1977) 433 U.S. 36, 50 [ 53 L.Ed.2d 568, 580 , 97 S.Ct. 2549 ]; U.S. v. Socony-Vacuum Oil Co. (1940) 310 U.S. 150,223 [ 84 L.Ed. 1129,1168 , 60 S.Ct. 811 ].) Cases interpreting federal antitrust legislation have been found applicable to interpretation of the Cartwright Act (Mailand v. Burckle (1978) 20 Cal.3d 367, 376 [ 143 Cal.Rptr. 1 , 572 P.2d 1142 ]) and, as a result, price-fixing has been considered a per se violation of that legislation as well.

1987V, Inc. v. GTE Sylvania, Inc. (1977) 433 U.S. 36, 50 [ 53 L.Ed.2d 568, 580 , 97 S.Ct. 2549 ]; U.S. v. Socony-Vacuum Oil Co. (1940) 310 U.S. 150,223 [ 84 L.Ed. 1129,1168 , 60 S.Ct. 811 ].) Cases interpreting federal antitrust legislation have been found applicable to interpretation of the Cartwright Act (Mailand v. Burckle (1978) 20 Cal.3d 367, 376 [ 143 Cal.Rptr. 1 , 572 P.2d 1142 ]) and, as a result, price-fixing has been considered a per se violation of that legislation as well.

2020A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie cutters.”].) In several cases addressing Batson claims, “[t]he high court has repeatedly drawn inferences of discrimination from comparative juror analysis without regard to whether the comparator jurors matched the struck juror in every respect identified by the prosecutor.” (Hardy, supra, 5 Cal.5th at p. 119 (dis. opn. of Liu, J.) [citing cases].) 15 PEOPLE v. MILES Liu, J., dissenting In Miller-El, for e

2018Accordingly, we consider such evidence in light of the deference due to the trial court's ultimate finding of no discriminatory purpose." ( People v. Melendez , supra , 2 Cal.5th at p. 15, 211 Cal.Rptr.3d 49 , 384 P.3d 1202 .) "The individuals compared need not be identical in every respect aside from ethnicity: 'A per se rule that a defendant cannot win a Batson claim unless there is an exactly identical white juror would leave Batson inoperable; potential jurors are not products of a set of cookie *401 cutters.' " ( People v. Gutierrez , supra , 2 Cal.5th at p. 1173, 218 Cal.Rptr.3d 289 , 39

1984Both the Trenton Potteries and the Socony courts further explained refusal to inquire into the reasonableness of set prices on the ground that such a review would necessitate constant detailed supervision and analysis by the government to assure that reasonable prices remain reasonable as economic conditions vary. ( 273 U.S. 392, 397-398 [ 71 L.Ed. 700, 705-706 ]; 310 U.S. 150, 221 [ 84 L.Ed. 1129, 1167 ].) 19 Recently, the Maricopa court stated that the high costs associated with “elaborate inquiry into . . . reasonableness” was a major justification for analyzing maximum price fixing in the

1984Both the Trenton Potteries and the Socony courts further explained refusal to inquire into the reasonableness of set prices on the ground that such a review would necessitate constant detailed supervision and analysis by the government to assure that reasonable prices remain reasonable as economic conditions vary. ( 273 U.S. 392, 397-398 [ 71 L.Ed. 700, 705-706 ]; 310 U.S. 150, 221 [ 84 L.Ed. 1129, 1167 ].) 19 Recently, the Maricopa court stated that the high costs associated with “elaborate inquiry into . . . reasonableness” was a major justification for analyzing maximum price fixing in the

2020“In Weatherford v. Bursey (1977) 429 U.S. 545, 549 [ 51 L.Ed.2d 30 , 97 S.Ct. 837 ] (Weatherford) the Supreme Court rejected a per se rule that ‘ “whenever the prosecution knowingly arranges and permits intrusion into the attorney- client relationship the right to counsel is sufficiently endangered 90 PEOPLE v. SUAREZ Opinion of the Court by Liu, J. to require reversal and a new trial.” ’ Although the high court did not establish a definitive standard for determining when surreptitious state participation in communications between a defendant and his or her attorney or . . . the attorney’s age

2020“In Weatherford v. Bursey (1977) 429 U.S. 545, 549 [ 51 L.Ed.2d 30 , 97 S.Ct. 837 ] (Weatherford) the Supreme Court rejected a per se rule that ‘ “whenever the prosecution knowingly arranges and permits intrusion into the attorney- client relationship the right to counsel is sufficiently endangered 90 PEOPLE v. SUAREZ Opinion of the Court by Liu, J. to require reversal and a new trial.” ’ Although the high court did not establish a definitive standard for determining when surreptitious state participation in communications between a defendant and his or her attorney or . . . the attorney’s age

2010In Weatherford v. Bursey (1977) 429 U.S. 545, 549 [ 51 L.Ed.2d 30 , 97 S.Ct. 837 ] ( Weatherford ) the Supreme Court rejected a per se rule that "`whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial.'" Although the high court did not establish a definitive standard for determining when surreptitious state participation in communications between a defendant and his or her attorney or, as here, the attorney's agent, does violate the Sixth Amendment, it stated tha

2010In Weatherford v. Bursey (1977) 429 U.S. 545, 549 [ 51 L.Ed.2d 30 , 97 S.Ct. 837 ] (Weatherford) the Supreme Court rejected a per se rule that “ ‘whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial.’ ” Although the high court did not establish a definitive standard for determining when surreptitious state participation in communications between a defendant and his or her attorney or, as here, the attorney’s agent, does violate the Sixth Amendment, it stated tha

1987V, Inc. v. GTE Sylvania, Inc. (1977) 433 U.S. 36, 50 [ 53 L.Ed.2d 568, 580 , 97 S.Ct. 2549 ]; U.S. v. Socony-Vacuum Oil Co. (1940) 310 U.S. 150,223 [ 84 L.Ed. 1129,1168 , 60 S.Ct. 811 ].) Cases interpreting federal antitrust legislation have been found applicable to interpretation of the Cartwright Act (Mailand v. Burckle (1978) 20 Cal.3d 367, 376 [ 143 Cal.Rptr. 1 , 572 P.2d 1142 ]) and, as a result, price-fixing has been considered a per se violation of that legislation as well.

1987V, Inc. v. GTE Sylvania, Inc. (1977) 433 U.S. 36, 50 [ 53 L.Ed.2d 568, 580 , 97 S.Ct. 2549 ]; U.S. v. Socony-Vacuum Oil Co. (1940) 310 U.S. 150,223 [ 84 L.Ed. 1129,1168 , 60 S.Ct. 811 ].) Cases interpreting federal antitrust legislation have been found applicable to interpretation of the Cartwright Act (Mailand v. Burckle (1978) 20 Cal.3d 367, 376 [ 143 Cal.Rptr. 1 , 572 P.2d 1142 ]) and, as a result, price-fixing has been considered a per se violation of that legislation as well.

1985Even if it is assumed that they were admissions subject to the Chapman test of prejudice (Chapman v. California (1967) 386 U.S. 18, 22-24 [ 17 L.Ed.2d 705, 709-711 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ]) rather than confessions subject to the per se test of prejudice (see generally People v. Powell (1967) 67 Cal.2d 32, 51-52 [ 59 Cal.Rptr. 817 , 429 P.2d 137 ]), the error in admitting . . . statements . . . was prejudicial.

1985Even if it is assumed that they were admissions subject to the Chapman test of prejudice (Chapman v. California (1967) 386 U.S. 18, 22-24 [ 17 L.Ed.2d 705, 709-711 , 87 S.Ct. 824 , 24 A.L.R.3d 1065 ]) rather than confessions subject to the per se test of prejudice (see generally People v. Powell (1967) 67 Cal.2d 32, 51-52 [ 59 Cal.Rptr. 817 , 429 P.2d 137 ]), the error in admitting . . . statements . . . was prejudicial.

1984In addressing the principal issue of whether appellant here has invoked his Fifth Amendment privilege by intending to talk to some of his friends during the police interrogation, we initially note that no particular form of words or conduct is necessary to assertion of the privilege and that the invocation of privilege or its waiver constitutes a question of fact which cannot be resolved by a per se rule, but only on an ad hoc basis taking into account the special circumstances of each case (People v. Ireland, supra, 70 Cal.2d at p. 535 ; People v. Turnage (1975) 45 Cal.App.3d 201, 210 [ 119 C

1984In addressing the principal issue of whether appellant here has invoked his Fifth Amendment privilege by intending to talk to some of his friends during the police interrogation, we initially note that no particular form of words or conduct is necessary to assertion of the privilege and that the invocation of privilege or its waiver constitutes a question of fact which cannot be resolved by a per se rule, but only on an ad hoc basis taking into account the special circumstances of each case (People v. Ireland, supra, 70 Cal.2d at p. 535 ; People v. Turnage (1975) 45 Cal.App.3d 201, 210 [ 119 C

2008Lessie, who was 16 years old at the time of those interviews, essentially asserts that because People v. Burton (1971) 6 Cal.3d 375 , 383-384 [ 99 Cal.Rptr. 1 , 491 P.2d 793 ] ( Burton ), which specifically holds that a minor's request to consult with a parent "made at any time prior to or during questioning, must in the absence of evidence demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege," is still binding authority in California, the trial court's failure to follow this per se rule of Burton , instead of determin

2008Lessie, who was 16 years old at the time of those interviews, essentially asserts that because People v. Burton (1971) 6 Cal.3d 375 , 383-384 [ 99 Cal.Rptr. 1 , 491 P.2d 793 ] ( Burton ), which specifically holds that a minor's request to consult with a parent "made at any time prior to or during questioning, must in the absence of evidence demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege," is still binding authority in California, the trial court's failure to follow this per se rule of Burton , instead of determin

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.

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.

2017California does not have a per se rule requiring pre-identification instructions. ( *800 People v. Lucas (2014) 60 Cal.4th 153 , 237, 177 Cal.Rptr.3d 378 , 333 P.3d 587 , disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1 , 53, fn. 19, 191 Cal.Rptr.3d 855 , 354 P.3d 983 .) But there appears to be a broad consensus that witnesses should be admonished before an identification procedure.

2017California does not have a per se rule requiring pre-identification instructions. ( *800 People v. Lucas (2014) 60 Cal.4th 153 , 237, 177 Cal.Rptr.3d 378 , 333 P.3d 587 , disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1 , 53, fn. 19, 191 Cal.Rptr.3d 855 , 354 P.3d 983 .) But there appears to be a broad consensus that witnesses should be admonished before an identification procedure.

2013Defendants argued that the California Supreme Court case of Mailand v. Burckle (1978) 20 Cal.3d 367 , in which the court held that the per se rule applied to vertical price fixing under the Cartwright Act, was no longer good law because the court relied upon federal law that subsequently had been abandoned by the United States Supreme Court in Leegin Creative Leather Products, Inc. v. PSKS, Inc. (2007) 551 U.S. 887 .

2013For guidance of the trial court we note that the holding in Mailand v. Burckle, supra, 20 Cal.3d 367 that vertical price fixing is a per se violation of the Cartwright Act is the governing law of California.

2026We have long settled that individual damages questions will rarely if ever stand as a bar to certification.” (Brinker, supra, 53 Cal.4th at p. 1054 (conc. opn. of Werdegar, J.).) Further, “[r]epresentative testimony, surveys, and statistical analysis all are available as tools to render manageable determinations of the extent of liability.” (Ibid.) In 19 light of those “settled principles,” Justice Werdegar concluded the defendant had “not shown the defense it raises, waiver, would render a certified class categorically unmanageable.” (Id. at p. 1055.) In Donohue, supra, 11 Cal.5th 58 , the co

2022It can be traced back to Brinker, in which Justice Werdegar provided a concurring opinion rejecting the employer-defendant’s argument “that the question why a meal period was missed renders meal period claims categorically uncertifiable.” (Brinker, supra, 53 Cal.4th at p. 1052 (conc. opn. of Werdegar, J.).) Justice Werdegar explained, “such a per se bar would be inconsistent with the law governing reporting obligations and our historic endorsement of a variety of methods that render collective actions judicially manageable.” (Ibid.) Rather, “[i]f an employer’s records show no meal period for a

1987Co. v. United States (1958) 356 U.S. 1 [ 2 L.Ed.2d 545 , 78 S.Ct. 514 ]: “[T]here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” (Id., at p. 5 [ 2 L.Ed.2d at p. 549 ].) Conspiring to fix prices has been characterized as “conduct that is manifestly anti-competitive” and therefore a per se violation of the Sherman Act.

1987Co. v. United States (1958) 356 U.S. 1 [ 2 L.Ed.2d 545 , 78 S.Ct. 514 ]: “[T]here are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” (Id., at p. 5 [ 2 L.Ed.2d at p. 549 ].) Conspiring to fix prices has been characterized as “conduct that is manifestly anti-competitive” and therefore a per se violation of the Sherman Act.

2017On these particular facts, the trial court did not abuse its discretion or violate defendant‟s confrontation rights in allowing the computer monitor to be repositioned while F.R. testified. ( Craig, supra, 497 U.S. at pp. 852-853.) Though we decline to adopt the per se rule urged by defendant, we emphasize that our holding is a narrow one and is based on the particular facts of this case.

2017On these particular facts, the trial court did not abuse its discretion or violate defendant's confrontation rights in allowing the computer monitor to be repositioned while F.R. testified. ( Craig , supra , 497 U.S. at pp. 852-853, 110 S.Ct. 3157 .) Though we decline to adopt the per se rule urged by defendant, we emphasize that our holding is a narrow one and is based on the particular facts of this case.

2017California does not have a per se rule requiring pre-identification instructions. ( *800 People v. Lucas (2014) 60 Cal.4th 153 , 237, 177 Cal.Rptr.3d 378 , 333 P.3d 587 , disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1 , 53, fn. 19, 191 Cal.Rptr.3d 855 , 354 P.3d 983 .) But there appears to be a broad consensus that witnesses should be admonished before an identification procedure.

2017California does not have a per se rule requiring pre-identification instructions. ( *800 People v. Lucas (2014) 60 Cal.4th 153 , 237, 177 Cal.Rptr.3d 378 , 333 P.3d 587 , disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1 , 53, fn. 19, 191 Cal.Rptr.3d 855 , 354 P.3d 983 .) But there appears to be a broad consensus that witnesses should be admonished before an identification procedure.

1998The per se rule of prejudice arising from an actual conflict of interest *800 does not apply therefore. ( Strickland v. Washington, supra, 466 U.S. at p. 692, 104 S.Ct. 2052 .) Nonetheless these conflicts contribute to our lack of confidence in the verdict when considered with Shinn's other failings.

1998The per se rule of prejudice arising from an actual conflict of interest *800 does not apply therefore. ( Strickland v. Washington, supra, 466 U.S. at p. 692, 104 S.Ct. 2052 .) Nonetheless these conflicts contribute to our lack of confidence in the verdict when considered with Shinn's other failings.

1993As said in Lee-Moore Oil Co. v. Union Oil Co. (4th Cir. 1979) 599 F.2d 1299, 1303 , ‘the case will be quite rare in which a per se violation of the Sherman Act does not cause competitive injury.’ ” (Rolling v. Dow Jones & Co., supra, 137 Cal.App.3d at p. 724 .) Thus, the *1233 court in Rolling concluded the injuries alleged in that case were not secondary, consequential, or remote, but the direct result of the unlawful conduct and were the kind of injuries the antitrust laws seek to prevent.

1985Co. v. United States (1958) 356 U.S. 1 [ 2 L.Ed.2d 545 , 78 S.Ct. 514 ], “there are certain agreements or practices which because of their pernicious effect on competition and lack of any redeeming virtue are conclusively presumed to be unreasonable and therefore illegal without elaborate inquiry as to the precise harm they have caused or the business excuse for their use.” (Id., at p. 5 [ 2 L.Ed.2d at p. 549 ], italics added.) In recent years the courts have applied a per se rule to horizontal restraints with considerably greater alacrity than has been true with respect to apparently vertical

1985Some courts — and, indeed, the majority herein — appear confused regarding whether Burton prescribed a per se rule, or whether it held the minor's *399 request to see his parent to be but one factor — albeit an important one — in evaluating whether the minor's waiver of his rights was voluntary. [1] An examination of Burton and its predecessors reveals that it did not create a per se rule. [2] In Miranda v. Arizona, supra, 384 U.S. 436 , the United States Supreme Court set forth the advice to be given a suspect and the guidelines by which every custodial interrogation must be conducted.

1985Some courts—and, indeed, the majority herein—appear confused regarding whether Burton prescribed a per se rule, or whether it held the minor’s request to see his parent to be but one factor—albeit an important one—in evaluating whether the minor’s waiver of his rights was voluntary. 1 An examination of Burton and its predecessors reveals that it did not create a per se rule. 2 In Miranda v. Arizona, supra, 384 U.S. 436 , the United States Supreme Court set forth the advice to be given a suspect and the guidelines by which every custodial interrogation must be conducted.