TABLE OF CONTENTS
CIVIL PROCEDURE
* BRANNON v. SUPERIOR COURT OF SAN DIEGO COUNTY (CRIPPEN)
CRIMINAL LAW & PROCEDURE, SENTENCING
* PEOPLE v. FIELDER
ELECTIONS, PUBLIC UTILITIES, TAX LAW, WATER LAW
* BIGHORN-DESERT VIEW WATER AGENCY v. BERINGSON
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CIVIL PROCEDURE
BRANNON v. SUPERIOR COURT OF SAN DIEGO COUNTY (CRIPPEN),
No. D042907
(Cal. 4th App. Dist. January 13, 2004)
In a writ proceeding arising out of personal injuries caused by a
well-drilling rig, the superior court erred in refusing to provide
the parties an opportunity to appear and present argument at an oral
hearing before the court ruled on the defendants' summary judgment
motion.
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BRANNON v. SUPERIOR COURT OF SAN DIEGO COUNTY (CRIPPEN),
No. D042907
(Cal. 4th App. Dist. January 13, 2004)
CRIMINAL LAW & PROCEDURE, SENTENCING
PEOPLE v. FIELDER, No. B163262 (Cal. 2d App. Dist. January 14, 2004)
In order for the prosecution to avoid application of the five-year
"washout" provision of Penal Code section 667.5(b), it is only
required to prove beyond a reasonable doubt that defendant either
committed a new offense resulting in a felony conviction or was in
prison custody. Defendant's sentence is vacated and remanded because
evidence did not preclude application of the "washout" provision to
two prior prison term enhancements.
Even assuming arguendo the trial court abused its
discretion
by notconducting a sufficient hearing on all of the above factors,
reversal is required only if appellant was prejudiced by this error.
( Ngaue,
supra,
229 Cal.App.3d at 19 pp. 1126-1127, and cases cited
therein.) Because “‘defendant has exercised his constitutional right
of self-representation, an abuse-of-discretion error in not permitting
defendant to change his mind does not appear to us to be of
constitutional
dimension.’” (Id.
at pp. 1126-1127, quoting
People v. Elliott, supra,70
Cal.App.3d 984, 998.) Appellant has the burden to show prejudicial
error.
(Ngaue, supra,
at p. 1127.)
In the trial court, appellant failed his burden of
demonstrating prejudicial
error. He made no attempt to demonstrate how it was reasonably probable
that theappointment of counsel would have led to a more favorable
disposition,
e.g., thegranting of a new trial motion as to either the petty theft
with a prior
conviction orthe findings in regard to the section 667.5, subdivision
(b) enhancements.
On this appeal, appellant, represented by counsel, has
likewise failed to
show prejudicial error. The evidence in support of the petty theft
conviction wasoverwhelming. (See
People v. Sampson
(1987) 191 Cal.App.3d 1409,
1418.) Thestore manager testified that appellant took a package of
insecticide from thesupermarket and left without paying for it. The
insecticide and a cheese
grater fell from his coat to the ground. When asked if he knew why he
was
brought back intothe store, appellant responded it was because he stole
a
cheese grater.
Accordingly, it is extremely unlikely that the
appointment of
counsel to file a new trial motion would have resulted in a
more favorable result regarding the petty theft conviction.
And as explained above in our analysis of the section 667.5,
subdivision (b) issues, the trial court did not err in finding it
could use the 1985 or 1986 convictions with prison terms to
enhance appellant’s sentence. It is therefore not likely that
appointment of counsel could have assisted appellant in that
regardto garner a different result on those issues.
To avoid the force of this conclusion, appellant, just
like the
defendant in Ngaue,
supra,
cites Menefield v.
Borg (9th Cir.
1989) 881 F.2d 696, 701, footnote 207, for the proposition
that Sixth Amendment violations require
automatic reversal
of the judgment. (Ngaue,
supra,
229 Cal.App.3d at p. 1126.)
We agree with the
Ngaue court which
declined to adopt the
Ninth Circuit Court of Appeal’s analysis in
Menefield.
(Ngaue, supra,
at pp. 1126-1127; see also
Bell v. Hill
(9th Cir. 1999) 190 F.3d 1089, 1093 [“The California courts . . .
are free to reject our decision in
Menefield.”].)
To read the full text of this opinion, go to:
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[PDF File]
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mm
PEOPLE v. FIELDER, No. B163262 (Cal. 2d App. Dist. January 14, 2004)
ELECTIONS, PUBLIC UTILITIES, TAX LAW, WATER LAW
BIGHORN-DESERT VIEW WATER AGENCY v. BERINGSON, No. E033515 (Cal. 1st
App. Dist. January 13, 2004)
A voter initiative cannot control the amount of the water rate,
fees, and charges fixed by a public water agency.
To read the full text of this opinion, go to:
http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2003/e033515.html
[PDF File]
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BIGHORN-DESERT VIEW WATER AGENCY v. BERINGSON, No. E033515 (Cal. 1st
App. Dist. January 13, 2004)
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