Latest 5 Cases: Cardinal Care Management, LLC v. Afable (Civil Procedure), California v. May (Constitutional Law), California v. Perez ...

Even During a Pandemic, Fear-Mongering About the Debt Has Predictably Reared Its Ignorant Head

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan explains why we should not be concerned about increasing the federal government’s debt, despite what some journalists are suggesting. Buchanan points out that sometimes—such as during a pandemic or other crisis—the federal government should borrow more to prevent a downward economic spiral.

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Cardinal Care Management, LLC v. Afable

Docket: A154062(First Appellate District)

Opinion Date: April 20, 2020

Judge: Tucher

Areas of Law: Civil Procedure, Labor & Employment Law

Plaintiffs sought unpaid overtime wages, liquidated damages, and waiting time penalties from two residential care facilities with a sole member, Chou. A hearing officer awarded $2.5 million. Chou’s liability was $2.2 million. The trial court allowed the defendants to file appeals conditionally, subject to being stricken if their petition to waive the bond requirement was denied. Chou submitted a declaration stating that he and the businesses lacked the financial ability to pay the awards or to make the deposit; that he had contacted bonding companies but could not provide required security; and that he was willing to provide financial statements, for the court’s in camera review, citing his bankruptcy and divorce. Plaintiffs submitted evidence that, while the action was pending, Chou had transferred title to four residential care facilities, and another property to trusts and LLCs of which Chou’s wife was the sole manager; that the value of the four properties collectively exceeded five million dollars; and that a fifth property had been purchased for $1,050,000. Chou cited mortgage debt, claiming that the properties were transferred for “an estate plan.” Chou was not present at the hearing. The trial court stated that there were no witnesses regarding the defendants’ financial position and found Chou’s assertions not credible. The court rejected, as untimely, Chou’s attorney’s offer to arrange for Chou to come to court and denied the request for a waiver of the requirement of an undertaking, dismissing the appeals from the award. The court of appeal affirmed. The trial court provided an adequate hearing, consistent with due process.

California v. May

Docket: C084302(Third Appellate District)

Opinion Date: April 20, 2020

Judge: Ronald B. Robie

Areas of Law: Constitutional Law, Criminal Law

Defendant Raymond May was found guilty by jury of possessing an assault weapon and a machine gun based on his possession of a single AK-47 assault rifle while guarding a marijuana plantation. He was sentenced to probation, which included an electronic search condition. On appeal, defendant argued there was a lack of sufficient evidence corroborating his accomplice’s testimony and demonstrating he knew of the firearm’s illegal character. He further alleged the trial court erred in instructing the jury: that the accomplice instruction should have included language specifying that the accomplice testimony needed to prove more than defendant’s mere presence or access to the firearm. Furthermore, defendant argued the electronic search condition imposed as part of his probation failed under the standards announced in California v. Lent, 15 Cal.3d 481 (1975). The Court of Appeal agreed defendant’s electronic search condition should have been stricken, but otherwise affirmed.

California v. Perez

Docket: E072260(Fourth Appellate District)

Opinion Date: April 20, 2020

Judge: Miller

Areas of Law: Constitutional Law, Criminal Law

In 2009, defendant-appellant Rudy Perez pled guilty to active gang participation under Penal Code section 186.22(a), and unlawful possession of a firearm under section 12025(b)(6). In 2010, defendant pled guilty to residential burglary under section 459, and active gang participation under section 186.22(a). In August of 2018, the State filed a new felony complaint, alleging one of the prior gang participation convictions as a strike prior. In 2018, defendant moved to vacate the two prior gang participation convictions based upon changes in the law that rendered them invalid. The trial court denied defendant’s motion. In 2019, defendant asked for reconsideration, which was again denied. Thereafter, defendant filed a timely notice of appeal from the denial of his motion to vacate the convictions. The Court of Appeal found that defendant pled guilty to street terrorism under Penal Code section 186.22(a) in 2009 and 2010, and it was undisputed that while committing these offenses, defendant acted alone. However, subsequent to defendant’s guilty pleas, in 2012, the California Supreme Court held that a defendant had to act in concert with a fellow gang member in order to be guilty of street terrorism. At that time, defendant could have filed a state habeas petition requesting relief, but failed to do so. "Defendants can lose remedies that are established by law when they fail to invoke such remedies in time." Section 1473.7 became effective in 2017. In defendant’s motion filed in the trial court, defendant failed to state what new evidence was discovered, instead arguing that the trial court was allowed “to vacate a conviction where the defendant is innocent as a matter of law or where vacating the conviction is in the interest of justice, even though the defendant is no longer in custody or otherwise restrained by the conviction.” The Court of Appeal concurred with the trial court's reason to deny relief, determining that "while the outcome in this case may be unfortunate for defendant, we are not here to rewrite legislation. The Legislature could amend section 1473.7 to address issues raised in this case. However, under the laws, as written, we must uphold the trial court’s order."

People v. Robinson

Docket: B293746(Second Appellate District)

Opinion Date: April 20, 2020

Judge: Wiley

Areas of Law: Criminal Law

After defendant penetrated an unconscious woman with his fingers, he challenged evidentiary rulings and requests a presentence conduct credit. The Court of Appeal held that the trial court properly excluded cumulative evidence about past times the woman was intoxicated at the relevant bar, and any error in allowing a drug recognition expert to testify about whether the woman was incapacitated was harmless. However, the court held that the trial court undercalculated defendant's presentence custody credit because he was not convicted of a violent felony under Penal Code section 2933.1, which would otherwise limit those credits. Accordingly, the court directed the trial court to award defendant 104 days of presentence custody credit and to amend the abstract of judgment, affirming in all other respects.

People v. Torres

Docket: B292551(Second Appellate District)

Opinion Date: April 20, 2020

Judge: Kenneth R. Yegan

Areas of Law: Criminal Law

Where, as here, the trial court factually finds that a self-represented defendant has engaged in an attempt to intimidate a witness, the constitutional right of self-representation can, in the exercise of the trial court's sound discretion, be revoked. The Court of Appeal affirmed defendant's conviction and sentence for two counts of battery on an ex-girlfriend. In this case, the trial court did not abuse its discretion in revoking defendant's pro se status after he asked his sister to contact the victim and have her say that she was coerced by the police detective to "press charges."