California Court Opinions

Filed 7/28/09

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

Conservatorship of the Person and Estate of BIBIANA BECERRA.

VIDA F. NEGRETE et al.,

Appellants,

v.

BIBIANO BECERRA,

Respondent;

LINDA PAQUETTE,

Objector and Appellant.

D053519

(Super. Ct. No. 37-2007-00100340-PR-

CP-NC)

APPEAL from orders of the Superior Court of San Diego County, David G. Brown, Judge. Reversed with directions.

Parisa P. Farokhi, for Respondent.

Linda Paquette, in pro. per., for Objector and Appellant.

In this conservatorship case, Objector and Appellant Linda Paquette (Appellant), an attorney who was representing a party in the action, appeals an order by the probate court ordering her to pay monetary sanctions to the court and attorney fees to the court-appointed attorney for the proposed conservatee, Bibiano Becerra (Conservatee). (Prob. Code, §§ 1471, 1800 et seq.; Code Civ. Proc., §§ 177.5; 575.2.) The court-appointed attorney, Parisa P. Farokhi (the CAA), sought these sanctions and attorney fees as a result of Appellant’s alleged violations of California Rules of Professional Conduct, rule 2 100(A), through her conduct of continuing to contact the Conservatee after the CAA had already been appointed to represent him and had requested other counsel to communicate with him only through her. After issuing an order to show cause, the probate court imposed against Appellant $1,000 sanctions in favor of the court and $2,587.50 attorney fees payable to the CAA.

Appellant argues the awards of monetary sanctions and fees are unsupported by statutory authority or the record, in the form of a proven violation of an existing lawful court order, as opposed to a different finding by the probate court of her violation of a rule of professional conduct that could lead to attorney disciplinary proceedings. (§§ 177.5, 575.2; Bus. & Prof. Code, §§ 6076 et seq.) Under all the relevant circumstances, we agree that the probate court failed to follow proper procedures in giving notice of the proposed sanctions and in awarding them for the express or implied reasons disclosed by the record. The orders are legally unsupportable and must be reversed with directions.

FACTUAL AND PROCEDURAL BACKGROUND

The background facts for this continuing proceeding are well known to the court and parties, and since the merits of the conservatorship issues are not before us, only a brief summary need be given here. We previously issued an unpublished opinion in Conservatorship of Becerra (Apr. 9, 2009, D052972), the “conservatorship case,” describing his brain injury sustained in an industrial accident. We also concurrently resolved an appeal in a related case involving the removal of Appellant as trustee of a trust holding his personal injury settlement proceeds (Donnelly v. Negrete (Apr. 8, 2009, D053018) [nonpub. opn.]). In another nonpublished opinion, Conservatorship of Becerra (June 17, 2009, D053574), we upheld an attorney fees award to the CAA, payable from the trust. All these are referred to as “our previous opinions.”

The original petition for conservatorship was filed in November 2007 by Vida F. Negrete, R.N., Ph.D. (a professional fiduciary and the client of Appellant; referred to here as Negrete). By court appointment, the CAA began to appear for Conservatee in February 2008. Eventually, in March 2008, Negrete withdrew her petition, but after contested proceedings by a different petitioner (who was supported by different family members), Gerry Donnelly was appointed as conservator. The court then appointed Donnelly to replace Negrete as trustee of Conservatee’s assets. While those hearings were still going on, the events giving rise to these sanctions orders took place.

On April 4, 2008, Appellant, acting for Negrete, attended a hearing on her motion to have an expert witness appointed to determine Conservatee’s true preferences and wishes. (Evid. Code, § 730.) At that time, the other conservatorship petition was still pending, and the CAA had filed a report dated March 11, 2008, for a proposed hearing of March 14, which had been continued until April 4. There were conflicting expert opinions on the extent to which a conservatorship should be established, based on the mental state of Conservatee, who was consenting to the procedure in general, but remained unclear about who he wanted to act as his conservator. At the April 4 hearing, the court denied Appellant’s request on behalf of Negrete to have the expert witness appointed, ruling there was no justification for the expense and no current contested trial set. (Evid. Code, § 730.) Another conservatorship hearing was scheduled for April 11.

On April 8, the CAA filed a supplemental report for the April 11 hearing, stating that at the April 4 hearing, Appellant had contacted Conservatee without obtaining permission from his attorney, the CAA, although the CAA had requested that all contacts with him be made through her. Appellant had obtained translations into Spanish of the conservatorship reports and showed them to Conservatee, since she disagreed with them, and she did so without the consent or knowledge of the CAA. The CAA contended in her supplemental report that this conduct interfered with her representation of Conservatee, and therefore she requested an order to show cause for sanctions or a contempt ruling, on the grounds that Appellant had violated rules of professional conduct in that manner. (Rule 2-100(A).)

At the April 11 hearing, the CAA explained to the probate court that Conservatee was present at the courthouse but was staying out in the hall and did not want to attend the hearing, because he was frustrated and upset by being questioned by Appellant and other family members, so that he did not feel the CAA was protecting him.

Based on the CAA’s representations at the April 11 hearing about Appellant’s contacts with Conservatee, the court (Judge Brown) announced that an order to show cause regarding sanctions against Appellant would be heard May 30, and that opposition would be allowed. On April 15, the court clerk served two written notices of the order to show cause regarding sanctions, citing sections 177.5 and/or 575.2. Both orders were dated April 14 and signed by Judge Cline. One order was printed on a court form and stated that the hearing would be held in Department N-04 (Judge Cline’s dept.), but it did not fill in the blanks regarding the basis for the sanctions. The typed order gave similarly general notice, except that the matter would be heard in Department N 03 (Judge Brown’s dept.) regarding the issuance of sanctions. Other hearings on the conservatorship issues were set for April 25 and May 30, as shown by augmented material in the record.

Meanwhile, beginning May 6, 2008, Appellant was making efforts to disqualify Judge Brown, pursuant to section 170.1, contending in her statement that his impartiality might reasonably be questioned. On May 12, Judge Brown struck the statement of disqualification for lack of service in accordance with the statutory requirements or for an inadequate showing of legal grounds for disqualification. (Most of the record in this case is supplied as exhibits to Appellant’s statements of disqualification.)

On May 19, Appellant filed her opposition to the sanctions request, arguing that the notices of hearing were defective because they were blank with regard to the reasons sanctions were being considered. She also contended that no specific orders had been violated, and her acts of advocacy as counsel were not properly the subjects of sanctions under section 177.5. In response, the CAA filed objections to the opposition, relying on section 128.5 and claiming that (1) Appellant was making it difficult for her to represent Conservatee, (2) Appellant must have known the reasons for her sanctions request, and (3) Appellant had harassed her by filing and serving a State Bar complaint against her, in retaliation. The CAA submitted a fees request for 13 hours of time at $225 per hour. (See also § 128.7.)

On May 30, the sanctions matters came on for hearing at 8:30 a.m. in Department N-03 before Judge Brown. The CAA reported that she had seen Appellant in the hallway, and the bailiff offered to go look for her. Judge Brown responded that he saw no reason to track her down, because she had been given notice as to the time and department regarding the order to show cause on sanctions. The CAA then argued that Appellant had willfully violated rules of professional conduct, had failed to appear at the hearing, and was unjustifiably claiming in her opposition papers that she did not know why the order to show cause had been issued. At 8:40 a.m., Judge Brown ordered that Appellant pay $1,000 sanctions to the clerk of the court within 30 days, and pay attorney fees to the CAA in the amount of $2,587.50

The same morning, Appellant appeared in Judge Cline’s courtroom (Dept. N-04), and told the court that there was an order to show cause pending against her there, based on the notice she had received, and based on Judge Cline’s April 30 order that he would be hearing all matters in the related conservatorship and trust proceedings. The court clerk responded that the order to show cause had been set for Department N-03, but Appellant said she had not noticed that the documents were inconsistent. Judge Cline took a recess, looked for the file, and determined that some sanctions orders had already been made in Judge Brown’s department that day, so he directed Appellant to appear in Judge Brown’s Department N-03 on June 20 at 8:30 a.m., regarding any and all matters relating to the order to show cause. Appellant objected that Judge Cline was supposed to be hearing all the conservatorship and trust matters, but he responded that Judge Brown would be hearing the order to show cause and any matters relating to it. Appellant argued that the order to show cause had left blank the explanation portion of the reasons why sanctions were being considered, and she requested further notice of the grounds, which was denied. Judge Cline also declined to vacate the order previously made by Judge Brown.

At the scheduled hearing in Department N-03 on June 20, Appellant appeared and personally delivered to Judge Brown her second statement of grounds for his disqualification. Judge Brown stated that he was nevertheless considering the sanctions matter to be properly before him, as a motion for reconsideration of his June 13 written order as it related to attorney fees and sanctions, and he ruled that it would remain a valid order, since no disqualification had yet been accomplished. Appellant stated that she was not aware that she had made a reconsideration motion, and that Judge Brown should disqualify himself. She also objected that she had previously properly appeared in Department N-04 and had requested further notice of the basis for sanctions, which was not provided. At the end of the hearing, the sanctions and fees as already ordered remained in effect.

On June 24, Judge Brown issued an order striking the second statement of disqualification, citing a lack of support for any challenge for cause against him.

On July 31, Appellant filed her notice of appeal of the May 30, June 13 and June 20 orders. These collateral orders are final determinations of the liabilities of the sanctioned party and are appealable. (§ 904.1.) The respondent is the CAA, who has filed the only opposing brief.

Pending appeal, we denied consolidation of this appeal with the previous conservatorship and trust matters, or with the appeal of the attorney fees order. We also denied an application by Appellant to have separate appellate counsel appointed for the Conservatee, which she argued was necessary due to her own lack of confidence in the CAA.

DISCUSSION

I

STANDARDS OF REVIEW; ISSUES PRESENTED

The orders to show cause issued by the probate court put Appellant on notice that imposition of sanctions was being considered under sections 177.5 and/or 575.2, “each of which requires a knowing violation of a valid order of the court without good cause or substantial justification.” (Winikow v. Superior Court (2000) 82 Cal.App.4th 719, 726 (Winikow).) Appellant argues the fees and sanctions orders are unsupported by statutory authority and/or the record, and represent an abuse of discretion because under these circumstances, no existing lawful court order was violated. At the outset, we emphasize that the issues before us are narrow and do not encompass the entire scope of the conservatorship proceedings, nor any judicial disqualification issues. We are concerned here only with the procedural validity of the attorney fees and sanctions orders issued May 20, as they were confirmed June 13 and 20.

Before discussing the various statutory authorizations for an award of such sanctions, we first take note that although the parties’ briefs have discussed the effect and proof requirements of sections 128.5 and/or 128.7, those sections are inapplicable here. Section 128.5 was a predecessor statute to section 128.7 that authorized awards of sanctions for certain litigation conduct that took place before 1995. (See Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 164-165 ["Section 128.5 has no application to cases filed on or after January 1, 1995, while section 128.7 applies solely to attorney misconduct in the filing or advocacy of groundless claims made in signed pleadings and other papers"]; Bauguess v. Paine (1978) 22 Cal.3d 626, 637-638 [holding that a court's inherent power to supervise judicial proceedings does not include the power to award attorney fees as sanctions for attorney misconduct, absent specific legislative authorization or agreement of the parties].)

Instead, the proper approach for evaluating the arguments on appeal requires us to read sections 177.5 and/or 575.2, and their requirements for knowing violations of valid court orders, together with the applicable Rules of Professional Conduct that the probate court was apparently attempting to enforce, through this imposition of sanctions. The jurisdictional facts are not disputed under these circumstances, and this court can properly evaluate, de novo, whether the statutory prerequisites for such an award have been met. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-801.)

Alternatively, we may properly evaluate the record to determine if it contains substantial evidence to support the trial court’s factual findings on sanctions. (West Coast Development v. Reed (1992) 2 Cal.App.4th 693, 697-698 [where a party challenges the factual underpinnings of a trial court's ruling, the appellate court assesses the record for substantial evidence to support the court's express or implied findings].) Absent a proper basis for those findings, a sanctions award represents a prejudicial abuse of discretion. (Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 501 (Moyal) [such discretion must be exercised in a reasonable manner with one of the statutorily authorized purposes in mind, and it must be guided by existing legal standards as adapted to current circumstances]; Winikow, supra, 82 Cal.App.4th at p. 726.)

“[A] trial court’s exercise of discretion will not be disturbed unless the record establishes it exceeded the bounds of reason or contravened the uncontradicted evidence [citation], failed to follow proper procedure in reaching its decision [citation], or applied the wrong legal standard to the determination [citation].” (Conservatorship of Scharles (1991) 233 Cal.App.3d 1334, 1340.) A discretionary ruling will not be reversed merely because of a difference of opinion between the appellate tribunal and the trial judge. (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) “Inherent in our review of the exercise of discretion in imposing monetary sanctions is a consideration of whether the court’s imposition of sanctions was a violation of due process. [Citation.]” (Moyal, supra, 208 Cal.App.3d at p. 501.)

II

ANALYSIS

The statutory prerequisites for imposition of sanctions for violation of a valid court order require us to identify the subject order, as well as the adequacy of notice given of the sanctions proceeding. This record shows that the hearings leading up to the May 30 award of sanctions dealt with an assortment of conservatorship issues. From April 4 until the April 11 hearing, when the order to show cause was issued, the conservatorship litigation addressed the effect of the two competing petitions (filing and withdrawal of Appellant’s petition, filing of Donnelly’s competing petition, and submission of reports by the CAA and the probate court investigator). The supplemental report of the CAA was filed April 8 for a hearing on April 11, so the order to show cause must have been based on the April 4 activities. As far as the record discloses, the only possible court order that Appellant could be deemed to have violated as of April 11 would have been the February order for appointment of the CAA, which led to the professional responsibility issues arising from Appellant’s continuing contacts with the Conservatee on April 4.

The probate court’s order was largely or entirely based on its belief that the Rules of Professional Conduct had been knowingly violated and this amounted to a violation of some court order or a rule of court. Although the standards of professional responsibility prepared by the State Bar are subject to approval by the Supreme Court, and as such are binding upon counsel, they are not normally regarded as court orders or local rules of the type referred to in sections 177.5 and 575.2, for purposes of awarding sanctions. Under Business and Professions Code sections 6075 and 6076, State Bar procedures for providing hearings and determining accusations against members of the State Bar are coordinated with the disciplinary authority of the Supreme Court: “The rules of professional conduct adopted by the board, when approved by the Supreme Court, are binding upon all members of the State Bar. [] For a wilful breach of any of these rules, the board has power to discipline members of the State Bar by reproval, public or private, or to recommend to the Supreme Court the suspension from practice for a period not exceeding three years of members of the State Bar.” (Bus. & Prof. Code, §§ 6077, 6086.7.)

Normally, the trial courts do not have the responsibility of directly enforcing the rules of professional responsibility, even when violations of court orders are alleged, since disciplinary authority is lodged in the Supreme Court, which has delegated it to the State Bar Court. (Bus. & Prof. Code, §§ 6087, 6100; Cal. Rules of Court, rule 9.10(g).) Noted commentators explain:

” ‘A wilful disobedience or violation of an order of the court requiring (an attorney) to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear . . . ‘ is cause for disbarment or suspension. [Citation.] [] . . . [] For an attorney to be disciplined under this statute, the State Bar must prove by clear and convincing evidence that (i) the attorney wilfully disobeyed a court order; and (ii) the order required the attorney to do or forbear an act in the course of his profession ‘which he ought in good faith to have done or not done.’ [Citation.]” (Cal. Practice Guide: Professional Responsibility (The Rutter Group 2008), 11:12-11:13, p. 11-3, italics omitted.)

These commentators further explain, “The State Bar Court is an administrative agency affiliated with the State Bar, established by the State Bar Board of Governors to act in place of the State Bar Board of Governors in disciplinary and reinstatement proceedings. [Citation].” (Cal. Practice Guide: Professional Responsibility, supra, 11:271, p. 11-30.2.) For example, in In re Aguilar (2004) 34 Cal.4th 386, 394-395, the Supreme Court sanctioned an attorney’s misconduct (disobeying a court order to appear) with a contempt ruling and a fine, and referred the matter to the State Bar for further disciplinary investigation. (Bus. & Prof. Code, § 6086.7.)

In our case, although there was a court order appointing the CAA, and the CAA had the right to request other attorneys in the case to make contact with her client only through her, violations of that request would amount to violations of the Rules of Professional Conduct, not of court orders. (Rules 1-100(A), 2-100.) The probate court’s evident interpretations of sections 177.5 and 575.2, to justify the setting of a sanctions hearing and then to find Appellant had violated court orders on that basis, were incorrect and in excess of the court’s discretion. First, ” ‘[The] adequacy of notice should be determined on a case-by-case basis to satisfy basic due process requirements. The act or circumstances giving rise to the imposition of expenses must be considered together with the potential dollar amount.’ [Citation.]” (Barrientos v. City of Los Angeles (1994) 30 Cal.App.4th 63, 70.) The oral and written orders to show cause lacked any such specific references to the underlying order said to be violated.

Even assuming that some kind of actual notice of exposure to sanctions was given to Appellant, based on her appearance at the April 11 hearing and her acknowledged receipt of the written orders to show cause, the record is still unclear what particular order was being enforced by the court. The Rules of Professional Conduct do not create any new civil causes of action, nor “create, augment, diminish, or eliminate any substantive legal duty of lawyers or the non-disciplinary consequences of violating such a duty.” (Rule 1 100(A).) Thus, even if the probate court had a basis to conclude that Appellant had previously violated Rule 2-100(A) (by communicating about the case with a party she knew to be represented by another lawyer in the matter, without consent), that finding would not be tantamount to creating disobedience of a valid court order, or a violation which could properly form the basis of an award of monetary sanctions or attorney fees to the other lawyer, within the meaning of sections 177.5 and/or 575.2.

Finally, under section 177.5, “[a]n order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.” This was not done here, since the June 13 written order merely refers to “good cause for issuance of” sanctions and fees, and the May 20 and June 20 minute orders (amended) merely recite that sanctions were ordered. (Caldwell v. Samuels Jewelers (1990) 222 Cal.App.3d 970, 977-978.) Although the CAA’s respondent’s brief on appeal requests that if the order must be reversed, remand for a further evidentiary hearing should be allowed, we decline to order any such further hearings, in light of our conclusion that the sanctions and fees orders were at all times ineffective, invalid and void under the applicable statutory criteria. Due to the probate court’s lack of compliance with the legal standards and purposes authorized by sections 177.5 and 575.2, the orders are legally erroneous, unsupported by the record, and a prejudicial abuse of discretion. (Winikow, supra, 82 Cal.App.4th 719 at p. 726; Moyal, 208 Cal.App.3d 491 at p. 501; Conservatorship of Scharles, supra, 233 Cal.App.3d at p. 1340.)

DISPOSITION

The orders are reversed with directions to vacate them and enter new orders denying any award of sanctions or fees pursuant to the April 11 or 14 orders to show cause. Each party to bear its own costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

NARES, J.

AARON, J.

Filed 7/21/09 (opn. on rehg.)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ABBOTT LABORATORIES et al.,

Plaintiffs and Appellants,

v.

FRANCHISE TAX BOARD,

Defendant and Respondent.

B204210

(Los Angeles County

Super. Ct. No. BC369808)

APPEAL from a judgment of the Superior Court of Los Angeles County,
Irving S. Feffer, Judge. Affirmed.

Baker & McKenzie, J. Pat Powers, Tod L. Gamlen, Jerry Salcido and Scott L. Brandman for Plaintiffs and Appellants.

Edmund G. Brown, Jr., Attorney General, Felix E. Leatherwood and Brian D. Wesley, Deputy Attorneys General, for Defendant and Respondent.

Silverstein & Pomerantz, Amy L. Silverstein and Edwin P. Antolin for California Taxpayers’ Association and River Garden Retirement Home as Amicus Curiae.

_____________________

INTRODUCTION

This appeal concerns the effect of Farmer Bros. Co. v. Franchise Tax Bd. (2003) 108 Cal.App.4th 976 (Farmer Bros.) on Revenue and Taxation Code section 24402. Farmer Bros. held that section 24402 violated the commerce clause of the United States Constitution by allowing a tax deduction to a corporation which received a dividend declared from income of a corporation subject to California tax, while not allowing a tax deduction to a corporation receiving a dividend declared from income of a corporation not subject to California tax.

Plaintiff Abbott Laboratories (Abbott) owned a 50 percent interest in TAP Pharmaceutical Products, Inc. (TAP), part of whose income was subject to California tax and which declared a dividend. Based on Farmer Bros., defendant Franchise Tax Board (FTB) denied the dividends received deduction to Abbott, which paid the tax on the TAP dividend it received and sued FTB for a refund of that tax paid. Abbott appeals from an order dismissing its action after the trial court sustained the FTB’s demurrer without leave to amend.

In this appeal Abbott proposes that this court rewrite section 24402, subdivision (a) to sever its invalid portion. We conclude that writing or reforming section 24402 in this manner would not be consistent with the enacting legislature’s intent and would contradict the purpose of its enactment, and therefore it would be inappropriate for this court to rewrite or reform the statute. We affirm the sustaining of the demurrer without leave to amend and the order of dismissal.

FACTUAL AND PROCEDURAL HISTORY

On April 20, 2007, plaintiffs Abbott Laboratories, Abbott Laboratories, Inc., CMM Transportation, Inc., North Shore Properties, Inc. and Perclose, Inc. filed a complaint for refund of corporate franchise tax or income tax against defendant FTB, an agency of the State of California. Pursuant to the standard of review of an order of dismissal entered following the sustaining of a demurrer, the facts alleged in the complaint are as follows.

Abbott Laboratories was and is a corporation organized and existing under the laws of the State of Illinois with its principal offices in the state of Illinois. Abbott Laboratories, Inc., CMM Transportation, Inc., North Shore Properties, Inc. and Perclose, Inc. were unitary subsidiaries of Abbott Laboratories included in its California tax returns and were corporations organized and existing under the laws of the State of Delaware.

During the 1999 and 2000 income years, Abbott manufactured and marketed pharmaceutical, nutritional, and medical products. Abbott timely filed California bank and corporation tax returns for the 1999 and 2000 income years.

At all times during the 1999 and 2000 income years, Abbott owned 50 percent of the outstanding common stock of TAP. Part of the income of TAP was subject to taxes imposed under section 13101 et seq., and part was not. Section 24402 limits the deduction for dividends received from other corporations based on the portion of the income of the dividend-paying corporation which was subject to tax imposed by the Revenue and Taxation Code. The complaint alleged that section 24402 facially discriminated against taxpayers such as Abbott, which owned stock in corporations doing business outside California, and that the previous taxation by California of income from which dividends are declared is what makes them eligible for total or partial deduction from income. The complaint alleged that the limitation on dividend deduction in section 24402 violates California and Federal due process clauses (U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7), the commerce clause (U.S. Const., art. I, § 8, cl. 3), and the equal protection clause of the 14th Amendment to the United States Constitution.

The complaint alleged that Farmer Bros. Co., supra, 108 Cal.App.4th 976 held that the limitation of the section 24402 deduction to dividends from income on which California tax had been imposed violated the Commerce Clause and affirmed a decision ordering a refund based on full deduction of dividends, subject to ownership requirements in section 24402, subdivision (b).

Pursuant to Section 24402, for the 1999 and 2000 income years Abbott deducted amounts representing 80 percent of dividends received from TAP. The FTB denied said deductions and assessed additional tax, interest, and penalties. After exhausting its administrative remedies, Abbott paid the additional tax, interest, and penalties. The FTB denied Abbott’s claim for refund and Abbott filed an action for tax refund.

The complaint alleged that by not allowing proper deduction for dividends, FTB illegally assessed and collected tax from Abbott for $715,735 in excess of Abbott’s correct liability for 1999 and for $1,624,359 in excess of Abbott’s correct liability for 2000. Abbott prayed for judgment in the amount of $2,340,094, plus interest paid, applicable penalties or such larger amount as provided by law, interest as provided by law, and such other relief (including, but not limited to, attorneys’ fees) as the court found appropriate.

FTB demurred to the complaint, arguing, inter alia, that the Farmer Bros. holding that section 24402 was unconstitutional rendered that statute void, that section 24402 could not be reformed, and that statutory law required the FTB to disallow deductions under section 24402 after the Farmer Bros. decision.

Abbott’s reply argued that California Supreme Court cases supported reformation of section 24402 by rewriting that statute to preserve its constitutionality and to preserve the deduction for dividends after eliminating the unconstitutional portions of section 24402.

On August 9, 2007, by minute order the trial court sustained the demurrer without leave to amend. The trial court’s order stated that in light of the Farmer Bros. holding, Abbott could not state causes of action for tax refunds based on section 24402. Farmer Bros. held that the “dividends received deduction” of section 24402 violated the commerce clause of the U. S. Constitution by discriminating against corporations engaged in interstate commerce. The trial court stated that it would not depart from that precedent, which referred to the entire dividends received deduction scheme. The trial court refused to reform section 24402 because it could not “conclude with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred such a reformed version of the statute to invalidation of the statute.” (Citing Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 670 (Kopp).)

By its formal order filed on October 5, 2007, the trial court dismissed the action with prejudice.

Abbott filed a timely notice of appeal.

ISSUES

Abbott claims on appeal that:

The trial court erroneously ruled that Farmers Bros. found section 24402 to be unconstitutional in its entirety;

The trial court erroneously failed to sever the unconstitutional limitation of the dividends received deduction from the valid provisions of section 24402;

Section 24402, and the Legislature’s intent, can be preserved by applying it in a non-discriminatory fashion.

DISCUSSION

Section 24402

Section 24401 states: “In addition to the deduction provided in Article 1 (commencing with Section 24341), there shall be allowed as deductions in computing taxable income the items specified in this article.”

This appeal concerns the first such deduction in section 24402, which states, in relevant part: “(a) A portion of the dividends received during the taxable year declared from income which has been included in the measure of the taxes imposed under Chapter 2 (commencing with Section 23101), Chapter 2.5 (commencing with Section 23400), or Chapter 3 (commencing with Section 23501) upon the taxpayer declaring the dividends.

“(b) The portion of dividends which may be deducted under this section shall be as follows:

“(1) In the case of any dividend described in subdivision (a), received from a ‘more than 50 percent owned corporation,’ 100 percent.

“(2) In the case of any dividend described in subdivision (a), received from a ‘20 percent owned corporation,’ 80 percent.

“(3) In the case of any dividend described in subdivision (a), received from a corporation that is less than 20 percent owned, 70 percent.

“(c) For purposes of this section:

“(1) The term ‘more than 50 percent owned corporation’ means any corporation if more than 50 percent of the stock of that corporation (by vote and value) is owned by the taxpayer. For purposes of the preceding sentence, stock described in Section 1504(a)(4) of the Internal Revenue Code shall not be taken into account.

“(2) The term ‘20 percent owned corporation’ means any corporation if 20 percent or more of the stock of that corporation (by vote and value) is owned by the taxpayer. For purposes of the preceding sentence, stock described in Section 1504(a)(4) of the Internal Revenue Code shall not be taken into account.”

The remainder of the statute concerns exceptions to the section 24402 deduction which do not apply in this appeal.

The Farmer Bros. Decision

Farmer Bros. held that section 24402 unconstitutionally violated the commerce clause of the United States Constitution.

In Farmer Bros., the taxpayer Farmer Bros., a California corporation that manufactured and sold coffee and coffee-related products, filed corporate income or franchise tax returns with the FTB. The returns reported a “dividends received deduction” under section 24402, reflecting a portion of the dividends Farmer Bros. received during the income/tax year. Farmer Bros. owned less than 20 percent of stock in corporations that paid it dividends. In this circumstance section 24402 allowed a maximum deduction of 70 percent of the dividend amount. (Farmer Bros., supra, 108 Cal.App.4th at p. 981.) The FTB promulgated a schedule listing the corporations and the percentage of dividends deductible under section 24402, based on a formula that entitled the taxpayer to a greater deduction the more the payer corporation’s income was subject to California corporate taxes. Taxpayer Farmer Bros. filed amended tax returns claiming a dividends received deduction for all dividends received for the years at issue and requested more than $800,000 in refunds on the ground that section 24402 violated the commerce clause. After the FTB denied the refund claims and the State Board of Equalization sustained that denial, taxpayer Farmer Bros. filed an action for refund of corporate franchise or income tax based on its assertion that section 24402 was unconstitutional under the commerce clause. Farmer Bros. argued that on its face, section 24402 discriminated against interstate commerce by improperly taxing income not attributable to business transacted in California, and that the deduction could not be justified as a lawful compensatory tax. (Farmer Bros., at pp. 981-983.) The trial court found that section 24402 facially placed an unconstitutional burden on interstate commerce, found that Farmer Bros. was entitled to recover $811,000 in refunds of corporate income and franchise taxes for seven tax years, and entered judgment for Farmer Bros. FTB appealed. (Farmer Bros., at pp. 984-985.)

The Farmer Bros. opinion quoted the commerce clause of the United States Constitution, which states: “Congress shall have Power . . . [] . . . [] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]” (U.S. Const. art. I, § 8, cl. 3.) Although it grants regulatory power to Congress, the clause has a negative aspect that denies States the power to discriminate unjustifiably against or burden the interstate flow of articles of commerce. The negative or “dormant commerce clause” prohibits economic protectionism in the form of regulation which benefits in-state economic interests by burdening economic competitors from outside the state. (Farmer Bros., supra, 108 Cal.App.4th at pp. 985-986.) To determine whether a state regulation violates the dormant commerce clause, “the first step is to determine whether it regulates evenhandedly[,] with only incidental effects on interstate commerce[,] or discriminates against interstate commerce. [Citation.] With respect to state taxation, a state law is treated as discriminatory if it taxes a transaction or incident more heavily when it crosses state lines than when it occurs entirely within the state. . . . A law that is discriminatory on its face must be invalidated unless the state can show that it advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” (Id. at p. 986.) Even if it has no discriminatory goal or intent, a tax may violate the commerce clause if it is (1) facially discriminatory or (2) has the effect of unduly burdening interstate commerce. A State’s justifications for discriminatory restrictions on commerce must pass the “strictest scrutiny.” Under this heavy burden of justification, facial discrimination by itself may be a fatal defect. (Ibid.)

Farmer Bros. held section 24402 to be “discriminatory on its face because it affords to taxpayers a deduction for dividends received from corporations subject to tax in California, while no deduction is afforded for dividends received from corporations not subject to tax in California.” (Farmer Bros., supra, 108 Cal.App.4th at p. 986.) The section 24402 dividends received deduction favored dividend-paying corporations doing business and paying taxes in California over dividend-paying corporations which did not do business or pay taxes in California. (Farmer Bros., at pp. 986-987.) The dividends received deduction of section 24402 favored intrastate commerce by giving a greater tax benefit to taxpayers investing in California corporations. By denying the dividends received deduction to taxpayers investing in non-California corporations, section 24402 discriminated against corporations engaged in business outside California. Thus it discriminated against interstate commerce in violation of the commerce clause. (Farmer Bros., at pp. 988-989.)

Farmer Bros. Found Section 24402 to Be Unconstitutional in Its Entirety

Abbott claims that the trial court erroneously ruled that Farmer Bros. found section 24402 to be unconstitutional in its entirety.

Abbott focuses on subdivision (a) of section 24402, which defines dividends subject to the deduction in computing taxable income. The deduction is allowed for “[a] portion of the dividends . . . declared from income which has been included in the measure of the taxes imposed under Chapter 2 (commencing with Section 23101), Chapter 2.5 (commencing with Section 23400), or Chapter 3 (commencing with Section 23501) upon the taxpayer declaring the dividends.” Chapters 2, 2.5, and 3 concern taxation of corporations doing business in California or deriving income from sources within California. Thus if a taxpayer owns part or all of a corporation which declares a dividend from income taxed under chapters 2, 2.5, or 3, section 24402, subdivision (a) would entitle the taxpayer to deduct a portion of those dividends from taxable income.

Abbott argues that the Farmer Bros. holding applies only to section 24402, subdivision (a), which discriminated against interstate commerce by allowing a deduction for dividends received from corporations subject to tax in California but not allowing this deduction for dividends received from corporations not subject to tax in California. Specifically, Abbott claims that only subdivision (a) of section 24402 was at issue in the Farmer Bros. case, and that the Farmer Bros. decision did not address the constitutional validity of subdivision (b).

We disagree. Having declared section 24402, subdivision (a) unconstitutional, Farmer Bros. eliminated the statutory deduction for dividends paid by corporations subject to tax in California. Subdivision (b) of section 24402 establishes the portions of dividends which may be deducted. The invalidation of the deduction as unconstitutional meant that the percentages used to calculate “[t]he portion of dividends which may be deducted under this section” could not be applied. (Ibid.) Thus it was unnecessary for Farmer Bros. to address whether section 24402, subdivision (b) was constitutional.

It Would Be Inappropriate for This Court to Rewrite or Reform Section 24402, Subdivision (a)

Abbott claims that the trial court erroneously failed to sever the unconstitutional provision in subdivision (a) from the remaining, valid provisions of section 24402.

Farmer Bros. held that allowing a deduction for dividends paid by corporations subject to tax in California favored those corporations, and allowing no deduction for dividends paid by corporations not subject to tax in California unconstitutionally discriminated against such corporations. There are two ways to eliminate this differing, discriminatory treatment. The deduction for dividends of corporations subject to tax in California can be eliminated, so that no dividends paid by any corporation would receive a deduction. Alternatively, the section 24402 dividends received deduction could be extended to dividends paid by all corporations, whether or not they were subject to tax in California.

Abbott argues in favor of this latter alternative, and claims this court should sever unconstitutional portions of section 24402 from the valid portion and declare the remaining statute constitutional. Abbott relies on the severability clause in section 23057, which states that: “If any chapter, article, section, subsection, clause, sentence or phrase of this part which is reasonably separable from the remaining portions of this part, or the application thereof to any person, taxpayer or circumstance, is for any reason determined unconstitutional, such determination shall not affect the remainder of this part, nor, will the application of any such provision to other persons, taxpayers or circumstances, be affected thereby.”

Abbott proposes that section 24402, subdivision (a) should be re-written to delete all words after the word “year,” so that subdivision (a) would state: “(a) A portion of the dividends received during the taxable year.” This revision would have the effect of allowing a deduction in computing taxable income for dividends declared from the income of any corporation, whether or not its income was subject to California tax.

The Invalid Portion of Section 24402, Subdivision (a) Is Not Volitionally Separable

A severability clause “ ‘ “normally calls for sustaining the valid part of the enactment, especially when the invalid part is mechanically severable. . . .” ’ . . .‘ “[s]uch a clause plus the ability to mechanically sever the invalid part while normally allowing severability, does not conclusively dictate it. The final determination depends on whether the remainder . . . is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidity of the statute . . . or constitutes a completely operative expression of legislative intent . . . [and is not] so connected with the rest of the statute as to be inseparable[.]” ’ ” (Gerken v. Fair Political Practices Com. (1993) 6 Cal.4th 707, 714, italics omitted.) To be severable, “ ‘the invalid provision must be grammatically, functionally, and volitionally separable.’ ” (Ibid.)

To be grammatically separable, the valid and invalid parts of the statute can be separated by paragraph, sentence, clause, phrase, or even single words. (People’s Advocate, Inc. v. Superior Court (1986) 181 Cal.App.3d 316, 330.) Here the words after “year” in section 24402, subdivision (a) are “reasonably separable” from the remaining portions of section 24402, subdivision (a).

To be functionally separable, the remainder after separation of the invalid part must be “ ‘ “complete in itself” ’ ” and “capable of independent application.” (People’s Advocate, Inc. v. Superior Court, supra, 181 Cal.App.3d at pp. 331-332.) After severance of the unconstitutional language, subdivision (a) appears to pass this functional separability test.

To be volitionally separable, “[t]he final determination depends on whether ‘the remainder . . . is complete in itself and would have been adopted by the legislative body had the latter foreseen the partial invalidation of the statute’ . . . or ‘constitutes a completely operative expression of the legislative intent[.]’ ” (Santa Barbara Sch. Dist. v. Superior Court, (1975) 13 Cal.3d 315, 331.) Here, we find that the Legislature intended to provide the dividends received deduction only to dividends declared from income subject to tax in California.

Both parties have cited legislative history of section 24402. Abbott claims that the intent of the 1929 enactment was “to not tax the same dollar of corporate income more than once.” (H. C. Nelson, Senator, 1st District, California Legislature, “California’s New Tax Laws; Corporation and Bank Tax Explained,” The Tax Digest, Vol. 7, April 1929, p. 129.) As pointed out by the FTB, the full quotation from Senator Nelson’s article states: “Dividends received by a corporation from other corporations, to the extent that they are based on business done in California, are deductible, the theory being to not tax the same dollar of corporate income more than once.” (Ibid.; italics added.) The purpose of the section 24402 dividend deduction was “to avoid double taxation at the corporate level of income which has already been subjected to California taxation in the hands of the dividend-declaring corporation.” (Safeway Stores, Inc. v. Franchise Tax Board (1970) 3 Cal.3d 745, 749-750, italics omitted.)

As enacted by the legislature, section 24402, subdivision (a) limited the dividends received deduction to dividends declared from income subject to California tax. Deleting the language imposing this limitation on the deduction from section 24402, subdivision (a) rewrites the statute to give the statute a purpose quite different than the one enacted by the legislature. It therefore ceases to serve the function intended by the legislature. “ ‘[W]hen the main purpose of a statute is defeated by the unconstitutionality of part of the act, the whole act is invalid.’ ” (Barlow v. Davis (1999) 72 Cal.App.4th 1258, 1266.)

Finally, severing all but the first 10 words of section 24402, subdivision (a), would constitute tax legislation by this court. We repeat that there are two ways to address the unconstitutional violation of the commerce clause by section 24402, subdivision (a): to treat all taxpayers and all income from which dividends are declared alike, by either (1) extending the dividends received deduction to all taxpayers, without regard to whether the corporate income from which the dividend was declared was subject to California tax, or (2) denying a dividends received deduction to all taxpayers. These tax policy choices diverge so greatly, and have such widely differing fiscal and budgetary effects, that the Legislature, not this court, must resolve the matter. The Legislature has the ability to hold hearings and to hear testimony from experts on the merits and effects of proposed changes to the statute. The Legislature might decide to adopt the statute Abbott proposes, but might also decide to deny a dividends received deduction altogether. That decision is properly a matter for the Legislature, not this court.

In light of the purpose of the enacting legislature, to adopt Abbott’s proposed revision of the statute “would essentially eviscerate the statute and ‘would create a program quite different from the one the [legislature] actually adopted.’ . . . We are certain that the legislature . . . can do this better than we.” (Spokane Arcades, Inc. v. Brockett (9th Cir. 1980) 631 F.2d 135, 139.) In California the Legislature has the entire lawmaking authority, limited only by Constitution. “The principle that the Legislature may exercise all powers not denied to it by the Constitution ‘ “is of particular importance in the field of taxation, in which the Legislature is generally supreme[.]” ’ ” (County of Sonoma v. Commission on State Mandates (2000) 84 Cal.App.4th 1264, 1280.) The Legislature’s authority to impose taxes exists unless expressly eliminated by the Constitution. (Armstrong v. County of San Mateo (1983) 146 Cal.App.3d 597, 624.) The power to make laws, which includes the power to tax, is vested in the Legislature and cannot be delegated to the courts. This court has no power to rewrite the statute to make it conform to a presumed intention which its terms do not express. (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633.

We therefore conclude that the revision of section 24402, subdivision (a) does not pass the volitional separability test. As the invalid provision, section 24402, subdivision (a), is not volitionally separable, we reject the claim that this court should sever all but the first 10 words of section 24402, subdivision (a) and declare the remaining statute constitutional.

Reformation of Section 24402, Subdivision (a) Is Inconsistent With the Enacting Legislature’s Intent and Would Contradict the Purpose of That Enactment, and Therefore This Court Will Not Reform the Statute

The court also has authority to rewrite a statute to preserve its constitutionality. (Kopp, supra, 11 Cal.4th at p. 615.) “[A] reviewing court may . . . reform a statute to conform it to constitutional requirements in lieu of simply declaring it unconstitutional and unenforceable. The guiding principle is consistency with the Legislature’s . . . intent: a court may reform a statute to satisfy constitutional requirements if it can conclude with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred such a reformed version of the statute to invalidation of the statute.” (Ibid.) This judicial reformation of a statute, however, “is improper when the suggested reformation is inconsistent with the Legislature’s intent, or when that intent cannot be ascertained.” (Id. at p. 643, italics omitted.)

As we have stated, ante, the purpose of section 24402, subdivision (a) dividend deduction was “to avoid double taxation at the corporate level of income which has already been subjected to California taxation in the hands of the dividend-declaring corporation.” (Safeway Stores, Inc. v. Franchise Tax Board, supra, 3 Cal.3d at pp. 749-750, italics omitted.) This purpose was clearly expressed by the predecessor statute to section 24402, enacted in 1929 (quoted in footnote 3), and by an article describing the 1929 enactment written by State Senator H. C. Nelson, quoted ante. The reformation of section 24402, subdivision (a) urged by Abbott does not closely effectuate the policy judgment clearly articulated by the enacting body. It does not limit the dividends received deduction to dividends declared from income already subjected to California taxation; instead it contradicts that policy judgment by allowing the dividends received deduction for dividends declared from income of any corporation, whether or not that income was already subjected to California taxation. For this reason the reformation of section 24402, subdivision (a) urged by Abbott is inconsistent with the enacting body’s intent. (Kopp, supra, 11 Cal.4th at p. 655.)

There is moreover no basis for this court to conclude with confidence that the enacting body—the 1929 legislature—would have preferred the reformed construction to invalidation of section 24402, subdivision (a). (Kopp, supra, 11 Cal.4th at p. 661.) This court cannot reform section 24402 to extend the dividends received deduction to all dividends, from whatever corporate source, without engaging in judicial policymaking in the guise of statutory reformation. Such policymaking encroaches on the Legislature’s function and violates the separation of powers doctrine. (Ibid.) “In the context of cases involving tax statutes that violate the Commerce Clause, the courts have consistently declined to exercise the power of judicial reformation to cure the constitutional violation.” (Ventas Finance I, LLC v. Franchise Tax Bd. (2008) 165 Cal.App.4th 1207, 1224.)

We conclude that the proposed reformation would be improper and this court refuses to reform section 24402, subdivision (a).

Abbott Untimely Raised Its Claim of Error Regarding Its Second Cause of Action, and Therefore This Court Need Not Consider It

Abbott claims that its second cause of action relies on the same operative facts as its first cause of action, but raises additional constitutional grounds for relief, such as that the FTB’s failure to allow deduction of dividends received violates the due process and equal protection clauses (U.S. Const., 14th Amend., § 1; Cal. Const., art. 1, § 7). Abbott raises this claim for the first time in its reply brief, and therefore this court need not consider it. (Medill v. Westport Ins. Corp. (2006) 143 Cal.App.4th 819, 836, fn. 3.)

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to defendant Franchise Tax Board.

CERTIFIED FOR PUBLICATION

KITCHING J.

We concur:

KLEIN, P. J.

ALDRICH, J.

Filed 7/21/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Appellant,

v.

TONY ROBIN WAGNER,

Defendant and Respondent.

E047167

(Super.Ct.No. SWF015764)

OPINION

APPEAL from the Superior Court of Riverside County. Helios (Joe) Hernandez, Judge. Affirmed.

Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for Plaintiff and Appellant.

Stephen S. Buckley, under appointment by the Court of Appeal, for Defendant and Respondent.

This is an appeal by the People from the dismissal of the case against defendant Tony Robin Wagner pursuant to Penal Code section 1382 because the trial court found there were no courtrooms available to hear the last-day case in a timely manner, and there was not good cause to continue the case.

The People contend on appeal that the trial court, pursuant to section 1050, subdivision (a), should have given precedence to the instant case over civil cases, including family, probate, and general civil cases being heard in Riverside County, and the trial court abused its discretion by refusing to continue the case beyond the time limit set forth in section 1382.

We will conclude the trial court did not abuse its discretion in denying the requested continuance after finding no courtroom available in which to try the matter and that dismissal of the matter was not error..

I

PROCEDURAL BACKGROUND

On March 23, 2006, the People filed a felony complaint against defendant charging him with one count of assault with a semiautomatic firearm (§ 245, subd. (b)). Defendant was also charged with allegations that he personally used a firearm (§ 12022.5, subd. (a)) and inflicted great bodily injury (§ 12022.7, subd. (a)). A preliminary hearing was conducted on December 20, 2006, and defendant was held to answer. An information was filed with the same charges as the complaint on December 29, 2006.

On January 3, 2007, defendant was arraigned on the information. The case was continued many times between February 28, 2007, and September 22, 2008, by request of both parties; it was then finally set for trial. On the last day for trial, the trial court, specifically the calendar judge, concluded there were no available courtrooms, and the case was set for a motion to dismiss under section 1382 on the following day. That motion was granted.

II

FACTUAL BACKGROUND

On March 7, 2006, defendant and his friend, Scott Lamb, went to a residence occupied by Jerry Jackson located on Stetson Street in Hemet. They were accompanied by Jackson’s ex-girlfriend, Celeste Trzepacz, who wanted to get her dog back from Jackson. After an exchange of words, Lamb and Jackson got into a fist fight. According to Trzepacz, prior to the fight, Lamb removed a handgun from his waistband and handed it to defendant. Trzepacz went inside Jackson’s residence, and while inside, she heard three gunshots. When she emerged from the house, she saw that Jackson had been shot and was on the ground. He had gunshot wounds on both knees. Trzepacz believed that defendant was still holding the handgun. Defendant was interviewed by the police after the incident. He began the interview denying being present. He eventually told police, “I shot him” but claimed Jackson was coming toward him. Defendant described the gun to police as a semiautomatic handgun.

III

ANALYSIS

The People contend that the trial court erred by dismissing the case pursuant to section 1382 because it failed to properly consider and give precedence to this case over other civil cases in its effort to find an available courtroom. Further, the trial court erred by failing to conclude that court congestion and mismanagement constituted good cause to continue the case.

A. Additional Factual Background

On September 22, 2008, several cases (including the instant case, two other felony cases, and one misdemeanor case) were called on their last day. The trial court informed counsel for all defendants that it had checked around the county in both the civil and criminal courts, and there were no courtrooms available until the following day. The trial court found that most of the family law courts did not have jury boxes, and the cases heard in those courts were important in order to protect children. It stated, “Taking away the judge that protects the children would be very unfortunate for the children and for society.” The trial court also stated that most of the juvenile courts also did not have jury boxes and had “huge” calendars. The time deadlines for prosecuting juveniles were very strict. Further, they were responsible for helping children get out of abusive or neglectful homes.

As for civil courts, the trial court refused to interrupt an ongoing civil jury trial. The trial court also rejected that the trial judge who handled guardianship and the probate judge could be diverted to do criminal trials. It then stated, “The three civil judges assigned to the converted Hawthorne Elementary School are not going to get a criminal trial. Hawthorne is a temporary use facility. There is insufficient security at Hawthorne. It would be unsafe for jurors, for the DA, defense counsel and for the witnesses if criminals and criminal trials were assigned to Hawthorne. Also, the administrative office of the courts has assigned various visiting judges to Hawthorne for the specific purpose of doing civil trials. I will not change the assignment unless the Court of Appeal[] or administrative office of the court orders us to do so.”

Further, the trial court refused to divert himself, the calendar judge, to conduct a criminal trial, as there would then be no one to conduct calendar. The trial court noted that it had informed the chair of the judicial council, the Administrative Office of the Courts (AOC), pursuant to section 1050 that the court was in danger of dismissing cases. The trial court ruled, “Therefore, we have done everything possible to find a place for the last remaining cases. No courtroom is available. The defense Motion to Dismiss will be heard tomorrow . . . .”

The district attorney inquired regarding the efforts made by the trial court to find a courtroom. The trial court noted that there were no trailing cases sent out already; all were last day. It noted that every civil courtroom in the county was conducting a criminal trial, so even if it wanted to interrupt a civil trial, it could not. It refused to take the calendar judge out to try a short misdemeanor case.

The trial court also found that no judge could come back from vacation, all of the pro tempore judges were being used, and the presiding judge was involved in meetings with the AOC.

The district attorney asked that the judges conducting exclusively civil cases at Hawthorne Elementary School be brought to the courthouse to try criminal cases because criminal trials take precedence over civil trials. The district attorney stated, “Is there something I’m missing that says the administrative office of the court takes precedence over the law?” The trial court refused to have the civil judges try criminal cases unless told to do so by the AOC or the Court of Appeal.

The district attorney argued that there was good cause to continue the cases because of the court congestion and objected to a motion to dismiss. The trial court found that court congestion was not an emergency situation that warranted a continuance, as it was a routine circumstance in Riverside County. Defendant’s counsel objected to any further delay. At no time did the district attorney advise the trial court as to the facts or severity of the instant crime.

The following day, September 23, 2008, defendant’s case was heard on a motion to dismiss under section 1382. The district attorney informed the trial court that he felt courtrooms were available. The trial court dismissed the case. The People chose at the time not to refile the case.

B. Mootness

Initially, defendant contends that this appeal is moot because this court either cannot provide effectual relief or such relief would not have a practical impact. Defendant relies upon the fact that, since the relief requested by the People in this case is reinstatement of the charges against defendant and the district attorney can currently refile this case, any decision by this court would provide no effectual relief and have no practical impact.

“A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief.” (Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503; see also In re Antoine D. (2006) 137 Cal.App.4th 1314, 1324.) Nonetheless, “[i]f a matter is of general public interest and is likely to recur in the future,” a resolution of the issue by the court is appropriate. (Rawls v. Zamora (2003) 107 Cal.App.4th 1110, 1113.) In addition, cases are not moot when they present questions that are capable of repetition, yet evade review. (Hammond v. Agran (1999) 76 Cal.App.4th 1181, 1186.)

This court could provide effectual relief if we were to find the People successful on appeal. Felony prosecutions are generally “subject to a two-dismissal rule; two previous dismissals of charges for the same offense will bar a new felony charge.” (Burris v. Superior Court (2005) 34 Cal.4th 1012, 1019.) If we were to dismiss the instant appeal as moot, the first dismissal of this case would stand. As such, if the case were to be dismissed a second time, and the People could not obtain relief on that case, then they would be unable to refile the case. (See also § 1387.1 [providing for a third filing under certain conditions when a violent felony is charged as defined in section 667.5].) If the People were to be successful here, they would be entitled to reinstatement of the charges and would still retain the right to refile at least two more times if the case were subsequently dismissed.

Additionally, the resolution in this case has a practical impact and provides effectual relief to defendant. In choosing to appeal this case under section 1238, subdivision (a)(8), as we will discuss in more detail, post, the People are foreclosed from refiling the charges in this case. By resolving the instant case in defendant’s favor, he has obtained effective relief by not being subject to further prosecution. We have found no legal authority that precludes us from finding this case is not moot because it grants relief to the defending party. Based on the unique facts present in this case, we conclude the appeal is not moot.

C. Standard of Review

“The right to a speedy trial is a fundamental right. [Citation.] It is guaranteed by the state and federal Constitutions. [Citations.] The Legislature has also provided for ‘“a speedy and public” trial as one of the fundamental rights preserved to a defendant in a criminal action. [Citation.]’ [Citation.] To implement an accused’s constitutional right to a speedy trial, the Legislature enacted section 1382. [Citation.]” (Rhinehart v. Municipal Court (1984) 35 Cal.3d 772, 776.)

Here, the trial court dismissed the case under section 1382 because the People failed to bring the case to trial within 60 days after defendant was arraigned on the information. (See § 1382, subd. (a)(2).) However, the reason the case could not be brought to trial was that there were no available courtrooms, and the trial court denied the People’s request for a continuance pursuant to section 1050, subdivision (a). Hence, the issues to be decided on appeal are whether the trial court erred by finding there were no available courtrooms and whether it should have granted a continuance.

Section 1050, subdivision (a) provides that criminal cases shall take precedence over civil cases as long as such precedence is consistent with the stated policy that hearing a criminal case before a civil case furthers the “ends of justice.” In People v. Osslo (1958) 50 Cal.2d 75, 106 (Osslo), the Supreme Court concluded that the decision of whether a criminal case takes precedence over a civil case must not be arbitrary. The language of section 1050 vests discretion in the trial court to make these decisions, which evokes the abuse-of-discretion standard on appeal. Accordingly, we uphold the trial court’s decision “except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316, italics omitted.)

The People contend that the trial court committed errors of law, and as such de novo review is proper here. They rely on the recent case of People v. Hajjaj (June 29, 2009, D054754) ____ Cal.App.4th ____ [2009 Cal. App. LEXIS 1050]. In that case, the appellate court recognized that review of trial court’s denial of a continuance is generally reviewed under the abuse of discretion standard but also noted that “a reviewing court applies the independent or de novo standard of review, which is nondeferential, to a trial court’s resolution of a pure question of law or a mixed question of law and fact that is predominantly legal. [Citation.]” (Id. at pp. *13-*14.) In Hajjaj, the court determined that the trial court committed an error of law by denying the People’s request for a continuance when an outlying courtroom was available on the last day, but the parties could not reach the court by the end of the day. (Id. at p. *27.)

We do not find the trial court committed an error of law in this case. It properly exercised its discretion in finding no available courtrooms (as we will discuss in more detail, post) and in denying the People’s request for a continuance due to court congestion.

D. Section 1050, subdivision (a)

Section 1050, subdivision (a) provides in pertinent part, “The welfare of the people of the State of California requires that all proceedings in criminal cases shall be set for trial and heard and determined at the earliest possible time. To this end, the Legislature finds that the criminal courts are becoming increasingly congested with resulting adverse consequences to the welfare of the people and the defendant. . . . It is therefore recognized that the people, the defendant, and the victims and other witnesses have the right to an expeditious disposition, and to that end it shall be the duty of all courts and judicial officers and of all counsel, both for the prosecution and the defense, to expedite these proceedings to the greatest degree that is consistent with the ends of justice. In accordance with this policy, criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings.”

In Osslo, supra,50 Cal.2d 75, which still remains good law, the defendant claimed that his case was erroneously continued after the date set for trial because civil cases were being given precedence over his criminal case under section 681a. (Osslo, at p. 106.) The trial court indicated that there were several judges out on assignment, the juvenile courts were congested, and another department was handling the case of a person who was confined as mentally ill. (Id. at pp. 105-106.) It also rejected the defendant’s objection to the continuance on the ground that there were civil trials occurring in other departments over which his criminal trial took precedence. (Id. at p. 104.)

At the time of Osslo, section 681a provided, “‘The welfare of the people of the state of California requires that all proceedings in criminal cases shall be heard and determined at the earliest possible time. It shall be the duty of all courts and judicial officers and of all district attorneys to expedite the hearing and determination of all such cases and proceedings to the greatest degree that is consistent with the ends of justice.’” (Osslo, supra, 50 Cal.2d at p. 106.) The Supreme Court also cited to the then section 1050, which provided, “‘Criminal cases shall be given precedence over all civil matters and proceedings.’” (Ibid.)

Without defining “civil matters and proceedings” the Supreme Court held, “It does not appear that the policy of sections 681a and 1050 was disregarded. [The trial court]’s explanation of the condition of the calendar shows that defendants were not being deprived of precedence over civil cases for any arbitrary reason . . . . Rather, it appears that the orderly administration of a crowded calendar required the continuances to enable trial of the case in a proper department. The precedence to which criminal cases are entitled is not of such an absolute and overriding character that the system of having separate departments for civil and criminal matters must be abandoned.” (Osslo, supra, 50 Cal.2d at p. 106, italics added.)

Osslo clearly provides that the provisions of section 1050 are not absolute and that a trial court is afforded the discretion to determine if a particular criminal case should be heard before a civil case. Further, it approves of the practice of providing separate departments for civil and criminal trials. Finally, at no time did the Osslo court state that the trial court was to consider the particular cases that were being heard in the various departments, including traditional civil courtrooms or juvenile courts.

Other courts (referring to Osslo) have found that section 1050, subdivision (a) merely establishes a policy, is not absolute, and does not require that criminal proceedings be given precedence over civil proceedings regardless of the circumstances and without consideration of the ends of justice. (E.g., People v. McFarland (1962) 209 Cal.App.2d 772, 777.)

Based solely on the findings in Osslo (which we are bound to follow (see Auto Equity Sales Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456)), where the Supreme Court authorized that separate departments for civil and criminal cases are permissible and the fact that the decision to hear a criminal case over a civil case must not be arbitrary, we conclude the trial court did not abuse its discretion in this case by finding that there were no available courtrooms. Under Osslo, the presiding judge and court administrators can designate separate civil departments that need not be considered to try criminal matters. As such, the trial court exercises its discretion by prioritizing cases in the available courtrooms. Section 1050 and Osslo require nothing more. The trial court clearly set forth its reasons for not disturbing family, probate, and other special-proceeding courts that were engaged in important cases. It also concluded that the facilities at Hawthorne Elementary School were not acceptable for trying criminal cases based on lack of security. We have to assume that such determination was proper, as the People have provided no evidence to the contrary. Although the People suggest that security could be provided, we cannot conclude that such security would be adequate based on the bare record in this case. Finally, although the People suggested below, and suggest here, that those judges could be transferred to the Hall of Justice courthouse, there is no evidence that a courtroom was available.

Finally, it appears from the finding in Osslo that there is nothing inherently unfair in classifying a separate department for civil cases as long as it is not an arbitrary decision. As stated in People v. Flores (2009) 173Cal.App.4th Supp. 9 (Flores), which we will discuss in more detail, post, up until the time that the Hawthorne judges were appointed, very few civil cases were being heard in Riverside County. (Id. at p. Supp. 22.) We cannot find that the special appointment of three judges to hear civil cases and the trial court’s refusal to divert those judges to criminal cases was an arbitrary decision. As noted by the trial court, all other general civil courtrooms at the courthouse were hearing criminal matters. Since section 1050 is clearly not absolute, and the record supports that the trial court considered all of the various options to hear the instant matter, we cannot say that the determination that no courtrooms were available was arbitrary.

The People contend that this court should direct the trial court to make a case-by-case analysis of each case pending in the various courts to determine whether a criminal case should take precedence over other less critical civil matters. They argue we must define “civil matters or proceedings” in order to give the trial court guidance as to which cases should be heard first. They have provided no authority, however, for their proposition that such a review is required by section 1050. Further, based on Osslo, the Supreme Court does not require such a determination. We believe that the trial court clearly can exercise its discretion in implementing section 1050 by considering the various departments and the types of cases heard in those departments. Asking the calendar judge to review each case in every department would be an insurmountable task and is not mandated by either section 1050 or the Supreme Court. Section 1050 only requires that the trial court’s decision regarding the precedence of a criminal matter over any type of civil case is not arbitrary.

Moreover, although other cases cited by the People have held that hearing civil matters before criminal cases was improper, none of those cases discussed Osslo; further, although stating that section 1050 was a legislative “policy,” they did not consider whether such determination was consistent with the ends of justice. (Perez v. Superior Court (1980) 111 Cal.App.3d 994, 1000; Tudman v. Superior Court (1972) 29 Cal.App.3d 129, 132; Herrick v. Municipal Court (1957) 151 Cal.App.2d 804, 810.) Moreover, in those cases, traditional civil courtrooms were not already being used to hear criminal matters. (Tudman, at p. 132; Perez, at p. 1000; Herrick, at pp. 809-810.) Here the trial court stated that all the traditional civil courtrooms were being used for criminal trials, and no evidence has been presented to suggest otherwise. Additionally, the Hawthorne Elementary School facility could not handle criminal trials without adequate security, and there was no evidence that other secure courtrooms were available. Therefore, we cannot conclude that the trial court made an arbitrary decision to refuse to use the Hawthorne judges to conduct this trial or transfer those judges to other courtrooms.

Furthermore, while the charges were before the calendar judge, the facts of the case were never related to the court to help it assess the seriousness of the matter. The trial court had no means of determining if this criminal case should be prioritized over the other criminal cases that were also being called on the last day. Although this may have made no practical difference in finding an available courtroom, the People at the very least should provide the trial court with a full picture of the cases that it is charged with assigning. As stated in People v. Cole (2008) 165 Cal.App.4th Supp. 1, 16 (which we will discuss in more detail, post), “[b]ecause the policy of criminal case precedence expressed in section 1050, subdivision (a), is based on the welfare of the citizens of the State of California,” there could be a case before the trial court of such significant severity that it would determine it must find an available courtroom no matter what the circumstances.

Court congestion and reluctance to open up the Hawthorne Elementary School venue to the trial of criminal matters were not the sole factors leading to this dismissal. Defendant was arraigned on the information on January 3, 2007. The defense was granted six continuances, several of which were unopposed. The parties stipulated to 12 continuances, which the trial court approved. On September 12, 2008, defendant announced ready, but the People were not ready for trial. On September 22, 2008, the matter was announced ready for trial by both sides, almost 18 months after defendant’s arraignment on the information. On this record, the plethora of continuances accepted by the parties and allowed by the court over the 18-month pendency of this case foretold the certainty of what did occur.

Further support for the conclusion that the court did not abuse its discretion in dismissing the instance case is found in the published superior appellate court cases of. Cole, supra, 165 Cal.App.4th Supp. 1 and Flores, supra, 173 Cal.App.4th Supp. 9, which, although not binding on us, are nevertheless persuasive in their reasoning.

In Cole, the trial court found that there were no available courtrooms to try two misdemeanor cases. It noted that this type of situation was not an emergency but a “continuing problem of constantly rising caseloads.” (Cole, supra, 165 Cal.App.4th Supp. at p. Supp. 6, fn. omitted.) All of the civil courtrooms were hearing criminal trials. The trial court interpreted section 1050, subdivision (a) to exclude family law, probate, juvenile, traffic or small claims matters, and in any event, the important work done by these departments “would be completely eliminated” if criminal trials took precedence over those matters. Such elimination would be “detrimental to the citizens of the community.” (Cole, at p. Supp. 8.) The case was dismissed pursuant to section 1382 because there were no available courtrooms. (Cole, at p. Supp. 9.)

The Cole court concluded a precise definition of “civil matters and proceedings,” as used in section 1050, subdivision (a), was “unnecessary based on the discretionary nature of section 1050, subdivision (a), which gives the trial court discretion to allocate its resources in a manner consistent with the ends of justice.” (Cole, supra, 165 Cal.App.4th Supp. at p. Supp. 14.) Thus, the court found that “civil matters or proceedings” had not been defined in section 1050 and did not believe such definition was necessary. (Cole, at pp. Supp. 13-14.) It then held that section 1050 was merely directory and not mandatory. (Cole, at p. Supp. 14.) It concluded that “whether a particular criminal case takes precedence over civil matters is within the court’s discretion.” (Id. at p. Supp. 15.)

The Cole court found that the trial court had not abused its discretion in dismissing the cases: “We conclude that the trial court was entitled to exercise, and did exercise, its discretion in a manner consistent with the policy and objectives of section 1050, subdivision (a). It considered all relevant circumstances, including the welfare of the citizens of the State of California. It indicated that separate from its legal interpretation of the term ‘civil,’ its decision was based on its finding that traditional civil courtrooms were already exclusively devoted to criminal trials, that the work done by the family, probate, traffic, small claims and juvenile courts was of great importance to the community, and that depriving the community of these remaining judicial services would be highly detrimental to its citizens. Because the policy of criminal case precedence expressed in section 1050, subdivision (a), is based on the welfare of the citizens of the State of California, this is a valid and relevant consideration in determining whether a particular criminal case should receive precedence.” (Cole, supra, 165 Cal.App.4th Supp. at p. Supp. 16.)

After the decision in Cole, in Flores, the same trial judge who was in charge of the master calendar in this case, called Flores’s case. The trial court stated that all courtrooms in the entire county were unavailable and that most of the civil courtrooms were engaged in criminal trials. (Flores, supra, 173 Cal.App.4th at p. Supp. 13.) The court then noted that there were three civil judges doing civil trials at the Hawthorne Elementary School. It noted that the judges had been appointed by the AOC to conduct civil cases only. It also stated that the security was inadequate at the facility to ensure the safety of the jurors and court staff. (Ibid..) It refused to transfer the judges to a secure courtroom because it would be interrupting civil trials. (Id. at p. Supp. 16.) It also rejected that it would assign any cases to family law or juvenile courts as they had huge caseloads and were protecting children and spouses. (Id. at pp.Supp. 13-14.) The judicial council had been notified to request a visiting judge, but apparently none was available. (Id. at p. Supp. 15.) The case was dismissed. (Id. at p. Supp. 16.)

On appeal to the appellate department of the superior court, the court first expanded on Cole and concluded that “‘civil matters and proceedings’ in section 1050, subdivision (a), is broad indeed, and means any civil action or special proceeding of a civil nature which is not clearly a criminal action,” but that a “precise definition” is not necessary. (Flores, supra, 173 Cal.App.4th at p. Supp. 20, fn. omitted.) The Flores court then reiterated that section 1050, subdivision (a) was not absolute and only requires granting precedence in a criminal case if to do so is just. (Flores, at p. Supp. 22.) It agreed with Cole that family, probate, and juvenile departments should not make way for criminal matters. (Flores, at p. Supp. 22.)

The Flores court then recognized that after Cole the Hawthorne Elementary School judges were hearing civil cases and that the district attorney was arguing those courtrooms should be used to conduct criminal trials. It concluded that the denial of access to courts implicates due process and that civil litigants are entitled to meaningful access to the court system. (Flores, supra, 173 Cal.App.4th at pp. Supp. 23-24.) The court recognized that all traditional civil courtrooms in Riverside County were already being used for criminal trials. It then held, “We therefore disagree with the District Attorney’s position that even further precedence must be granted to criminal matters. Conducting criminal trials at Hawthorne, temporarily assigning the judges currently assigned to Hawthorne to secure courtrooms at other facilities, or forcing family and probate departments to conduct criminal trials, would simply not be ‘consistent with the ends of justice,’ and is therefore not mandated by section 1050, subdivision (a).” (Id. at p. Supp. 24, fn. omitted.)

The reasoning in Flores and Cole is sound. The People in the instant appeal have provided nothing new to this court that would change such reasoning. The findings are supported by Osslo and the plain language of section 1050. The policy to expedite criminal cases in conformance with the ends of justice makes it a reasonable determination on the part of the trial court to refuse to disturb those courts to hear a criminal case. Making an absolute rule that criminal cases should take precedence over these types of cases would not serve the “ends of justice.”

People v. Swain (1995) 33 Cal.App.4th 499 provides a useful summation of the reality of the current situation in most courts. Although the issue in that case was whether an assignment of temporary municipal court judges to sit as superior court judges for three years was a violation of article VI, section 4 of the California Constitution, this court noted that “[t]oday’s superior courts are faced with heavy case loads and the judges are chronically overburdened. Thus, litigants, defendants, and the public are prejudiced by delays in bringing criminal cases to trial. For example, delays causing a defendant to remain in custody affect his liberty interests, while the public unnecessarily may have to pay the added cost of incarceration. As time goes by, memories of witnesses fade. Therefore, Penal Code section 1050, subdivision (a) provides that ‘criminal cases shall be given precedence over, and set for trial and heard without regard to the pendency of, any civil matters or proceedings.’ This leads to a frustration of the expeditious handling of civil cases. Accordingly, there is great need for flexibility in administration of the court system on a day-to-day basis.” (Swain, at pp. 503-504; see also People v. Kwolek (1995) 40 Cal.App.4th 1521, 1529-1530.)

The trial courts in Riverside County need flexibility in their administration. Section 1050 provides that, to the extent that it meets the ends of justice, criminal cases should be given precedence over civil cases. However, the reality of the situation in the trial courts in this County is that no other cases would be heard if all criminal cases were given priority over all civil matters. Such a result clearly does not meet the ends of justice. Trial courts, especially master calendar judges, are in the best position to determine on a “day-to-day basis” what cases should be heard as long as the decision on whether a criminal case takes precedence over a civil case is not arbitrary. (People v. Swain, supra, 33 Cal.App.4th at p. 504.) This does not require a case-by-case analysis in each department as argued by the People, an unworkable solution that has no legal support. Further, excluding departments as a whole, i.e. family, probate, and guardianship, after the trial court has determined they have huge caseloads and are involved in protecting children and others, is not, as argued by the People, an “ongoing fallacy” that the trial court is exercising its discretion. The master calendar judge is well aware of the types of cases heard in those departments on a daily basis. Further, the trial courts are clearly placing criminal trials ahead of civil trials in Riverside County when such preference is just.

We conclude that the trial court did not err or abuse its discretion by finding that there were no available courtrooms to try this last-day case.

E. Refusal to Grant Continuance due to Court Congestion and

Mismanagement

As the People argued in Flores and Cole, they claim here that additional error was committed by the trial court based on the ground that it should have granted their request for a continuance beyond the section 1382 time limit due to court mismanagement and congestion.

In Cole, the appellate court rejected the People’s argument that the trial court abused its discretion by refusing to continue the trial beyond the statutory limit of section 1382. In Cole, the court found “chronic court congestion and overcrowding do not constitute good cause for a continuance under section 1382.” (Cole, supra, 165 Cal.App.4th Supp. at p. Supp. 17; see also Rhinehart v. Municipal Court, supra, 35 Cal.3d at p. 782 [“absent exceptional circumstances, a trial court’s congested calendar does not constitute good cause to avoid a dismissal under section 1382”].) The Cole court also found, “Because the state has the obligation to provide sufficient resources to dispose of the usual court business promptly, court congestion will not constitute good cause unless the circumstances are exceptional. [Citation.] Exceptional circumstances are defined as unique, nonrecurring events which have produced an inordinate number of cases for court disposition. [Citations.]” (Cole, at p. Supp. 17.) The court concluded, “The record shows that the lack of available courtrooms was the result of chronic court congestion, a fact undisputed by the People. Nothing in the record suggests exceptional circumstances. While the effect of the congestion (i.e., the two misdemeanor dismissals) may have been unique, this was merely the inevitable and foreseeable result of the chronic and increasing court congestion. Therefore, no good cause for a continuance was established.” (Ibid.) The Cole court also rejected that the record supported the congestion was due to court mismanagement or administrative policy, and even if it did, that was not good cause to avoid dismissal under section 1382. (Cole, at p. Supp. 17.)

In Flores, the court rejected the same argument. In that case, the court rejected the People’s argument that the trial court’s mismanagement by placing the Hawthorne courts off limits was grounds for “good cause” for the continuance. It concluded, “The situation in Riverside Superior Court of insufficient courtrooms and judges to try all criminal matters before the statutory deadlines is in no way novel or limited to this case — it has been the norm for some time now. [Citation.] Because we have already concluded the trial court did not abuse its discretion by not utilizing available noncriminal resources to try Flores’s case, we find no court mismanagement whatsoever.” (Flores, supra, 173 Cal.App.4th at pp. Supp. 24-25 .)

The Flores court concluded, “Lack of resources, not court mismanagement or congestion caused by an exceptional or emergency situation, lay behind the delay in Flores’s trial. Under this state of affairs, granting a continuance would have been an abuse of discretion.” (Flores, supra, 173 Cal.App.4th at p. Supp. 25.)

The findings in Flores and Cole are correct, and we find no reason to hold otherwise. We have concluded that the trial court properly determined that there were no available courtrooms, and it was not required to utilize the Hawthorne courts for criminal cases. There is nothing in the record to support that court congestion was caused by the trial court’s mismanagement or administrative policy. Consequently, the trial court’s denial of the People’s request to continue the trial was not an abuse of discretion, and dismissal was necessary in order to avoid a violation of defendant’s statutory speedy trial rights.

F. People’s Appeal Forecloses Refiling of Charges

We note that since the People have been unsuccessful in the instant appeal, they are foreclosed from refiling the charges against defendant in the lower court. Section 1238, subdivision (a)(8) provides for a People’s appeal from “[a]n order or judgment dismissing or otherwise terminating all or any portion of the action including such an order or judgment after a verdict or finding of guilty or an order or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.” However, “[i]f, pursuant to paragraph (8) of subdivision (a), the people prosecute an appeal to decision, or any review of such decision, it shall be binding upon them and they shall be prohibited from refiling the case which was appealed.” (§ 1238, subd. (b).)

“An appeal under section 1238, subdivision (a)(8) is an election of remedies.” (People v. Dewberry (1974) 40 Cal.App.3d 175, 183.) As such, if the People choose this remedy and the appeal fails, they are “‘precluded from refiling the case . . . .’” (People v. Chacon (2007) 40 Cal.4th 558, 565.)

The People made just such an election of remedy in this case. Rather than refile the case, they chose to appeal the first dismissal; they chose not to file a writ of mandate attacking the dismissal, which would not have foreclosed their right to refile. In their desire to have this court weigh in on an issue that had already been reasonably decided by the appellate department of the superior court, they have lost the opportunity to prosecute defendant for the charged offense. Pursuant to section 1238, subdivision (a)(8), they are foreclosed from refiling the charges in this case.

IV

DISPOSITION

We affirm the dismissal of this case.

CERTIFIED FOR PUBLICATION

RICHLI

Acting P.J.

We concur:

GAUT

J.

MILLER

J.

Filed 7/21/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE HABITAT TRUST FOR WILDLIFE, INC.,

Plaintiff and Appellant,

v.

CITY OF RANCHO CUCAMONGA et al.,

Defendants and Respondents;

SPS DEVELOPMENT SERVICES, INC. et al.,

Real Parties in Interest and

Respondents.

E042229

(Super.Ct.No. RCV87660)

OPINION

THE HABITAT TRUST FOR WILDLIFE, INC. et al.,

Plaintiffs, Cross-defendants and

Appellants,

v.

SPS DEVELOPMENT SERVICES INC. et al.,

Defendants and Respondents

HENDERSON CREEK PROPERTIES, LLC,

Defendant, Cross-complainant and

Respondent.

E043925, E044797

(Super.Ct.No. RCV084965)

APPEAL from the Superior Court of San Bernardino County. Thomas A. Peterson, Barry L. Plotkin, and Ben T. Kayashima, Judges. Affirmed.

The Law Office of Craig A. Sherman and Craig A. Sherman for Plaintiffs, Cross-defendants and Appellants The Habitat Trust for Wildlife, Inc. and Spirit of the Sage Council, Inc.

Richards, Watson & Gershon, Mitchell E. Abbott and Ginetta L. Giovinco for Defendants and Respondents City of Rancho Cucamonga and City Council of the City of Rancho Cucamonga.

Manatt, Phelps & Phillips, Alan J. Kessel, Keli N. Osaki; Law Offices of Judith B. Oakes and Judith B. Oakes for Defendant and Respondent SPS Development Services, Inc. and Defendant, Cross-complainant and Respondent Henderson Creek Properties, LLC.

Jackson, DeMarco, Tidus & Peckenpaugh, Michael L. Tidus and Daniel A. Friedlander for Defendants and Respondents Rancho 2004, LLC, Granite Homes of California, Inc., Granite Homes, Inc. and Granite Construction Services, LP.

Allen Matkins Leck Gamble Mallory & Natsis, Stephen R. Thames, Brian R. Bauer; Ruth E. Stringer, County Counsel and Mitchell L. Norton, Deputy County Counsel, for Defendant and Respondent County Service Area 70, Improvement Zone OS-1.

Davis & Rayburn and Thomas P. Davis, for Defendant and Respondent Brody McFarland as Successor Trustee, etc.

Plaintiff, The Habitat Trust for Wildlife, Inc. (“Habitat”), appeals from a judgment in favor of defendants City of Rancho Cucamonga and City Council of the City of Rancho Cucamonga (sometimes “City Council” otherwise, collectively “City”) on its petition for writ of mandate. By its petition Habitat sought to force City to set aside a resolution determining that Habitat is not a qualified conservation entity (“QCE”) and to enter a new resolution based upon substantial evidence and in compliance with California law. Habitat argues that the petition was wrongfully denied by the trial court because it employed the wrong standard of review, because City denied Habitat due process, because City’s criteria for determining what was a QCE were vague and uncertain and conflicted with federal and state law, and because City’s findings in support of its resolution were not supported by the evidence before it.

In a second, related case, plaintiffs Habitat and Spirit of the Sage Council, Inc. (“Sage,” collectively “Habitat/Sage”), appeal from a judgment entered in favor of defendants Henderson Creek Properties, LLC (“Henderson”), SPS Development Services, Inc. (“SPS,” collectively “Henderson/SPS”), Rancho 2004, LLC, Granite Homes of California, Inc., Granite Homes, Inc., Granite Construction Services, LP (collectively, “Granite”) and County Service Area 70, Improvement Zone OS-1 (hereinafter sometimes, “County”) after their motions for summary judgment were granted. Habitat/Sage sought damages for breach of contract, breach of the covenant of good faith and fair dealing and constructive trust. They claim that the trial court erred in granting summary judgment because it exceeded its authority by invading the province of the trier of fact, made findings unsupported by fact or law, improperly struck most of their evidence, failed to consider reasonable inferences that supported a triable issue of material fact and failed to give effect to the contract’s savings clause. Habitat/Sage also challenge the judgment insofar as it was entered against them on Henderson’s cross-complaint for rescission.

In the third appeal Habitat/Sage challenge the postjudgment order awarding Henderson/SPS and Granite their attorney fees and costs. In their opening brief they expressly state that their challenge to these orders is based solely upon their claim that the underlying judgment should be reversed.

We affirm the challenged judgments and orders.

FACTUAL AND PROCEDURAL HISTORY

Henderson sought to develop 65.3 acres of land within the sphere of influence of City, into a residential subdivision to be annexed to the City. The draft environmental impact report (“EIR”) proposed that Henderson convey 58 acres of off-site land to San Bernardino County Special District OS-1 (“County Special District”) in order to mitigate the potential loss of habitat for sensitive plant and animal species and the loss of raptor foraging land caused by the project. Sage, a nonprofit environmental advocacy group, opposed the project on the grounds that the mitigation required in the draft EIR was inadequate to protect the environment. Sage suggested that Henderson donate mitigation lands to Habitat, a tax exempt nonprofit land trust created by Sage to own three parcels of mitigation land obtained through litigation over earlier City approved projects. The final EIR, issued April 30, 2004, required that Henderson transfer a minimum of 54 acres of off-site mitigation land for permanent habitat conservation to “the County of San Bernardino Special District OS-1 or other qualified conservation entity approved by the City . . . ” along with funding to maintain the land, and responded to the other concerns in Sage’s letter of objections. The staff report for the planning commission stated that the open space transfer for the project allowed the property owner to select an appropriate nonprofit entity, other than the County Special District, to receive the mitigation land, subject to City planner approval. On May 12, 2004, Sage wrote to City’s planning commission that it was concerned the final EIR was not specific enough with regards to what entity would receive the mitigation lands for the Henderson project. The EIR was approved by resolution of the planning commission requiring the property owner to “transfer to the County of San Bernardino Special District OS-1 or other qualified conservation entity approved by City, in fee, a minimum of 54-acres of off-site land for permanent open space and habitat preservation; along with funding in an amount to be mutually agreed upon by the property owner and the conservation entity, to provide for long-term maintenance of said land.”

Sage and Habitat appealed the resolution of the planning commission and informed the mayor and the City Council that they did not agree with the final EIR, which they found deficient in a number of respects. At its meeting on June 16, 2004, the City Council certified the final EIR, denied the appeal of the planning commission resolution, and approved other resolutions related to Henderson’s project. The resolution approving the tentative tract map contained the same land transfer mitigation as required by the planning commission, as quoted above.

City and Henderson entered a development agreement dated July 7, 2004. The agreement provided that “[t]he the City shall not be prevented, in subsequent actions applicable to the Project, from applying new ordinances, rules[,] regulations and policies” so long as they do not conflict with laws existing at the time the agreement was entered. The agreement mirrored the final EIR in that it further provided, “[t]he Property Owner shall transfer to the County of San Bernardino Special District OS-1 or other qualified conservation entity approved by the City, in fee, a minimum of 54-acres of off-site land for permanent open space and habitat preservation; along with funding in an amount to be mutually agreed upon by the Property Owner and the conservation entity, to provide for long-term maintenance of said land.” In addition, with respect to future entitlements (which included all of the conditions and mitigation measures stated in the resolutions of approval made by the planning commission and the City Council) City specifically retained its discretionary review authority. The agreement was specifically made enforceable by the parties. Further, it provided that “[w]here the consent or approval of any of the Parties is required in or necessary under [the development agreement], unless the context otherwise indicates, such consent or approval shall not be unreasonably withheld.”

In July and August 2004, Sage filed three petitions for writ of mandate against City based upon its certification of documents required by the California Environmental Quality Act (“CEQA”) on three residential development projects. However, in order to prevent a CEQA challenge to the Henderson project based upon inadequate mitigation of environmental impacts, Henderson, Sage and Habitat entered into an agreement, dated July 18, 2004 (“Agreement”). Henderson agreed to convey a specified parcel of real property consisting of 86 acres to Habitat for conservation purposes, along with providing gates, fences and barriers in an amount not to exceed $15,000, plus $100,000 for administration costs, $25,000 for attorney fees and an endowment of $430,750 ($5,000 per acre for 86.15 acres). It also agreed to let Habitat onto the property to be developed to collect plant life for conservation purposes prior to grading. Habitat and Sage agreed to withdraw the objections to the Henderson project that they had lodged with the City, agreed not to challenge the EIR nor any of the required project approvals, and released Henderson and its assigns and successors from all claims arising out of or related to the Henderson project. The enumerated conditions to the close of escrow on the property to be conveyed to Habitat did not include its approval by City as a QCE. The Agreement was binding on all successors and assigns. The Agreement also stated that all provisions of the contract would remain in effect if any other provision was found illegal or unenforceable and should be interpreted as if mutually prepared.

On September 14, 2004, Larry Henderson, City’s principal planner (“Planner”), asked a Henderson representative to submit a written proposal that Sage be approved as the receiving entity for the mitigation land, providing documentation on the qualifications of Sage and the reasons for its recommendation. On September 23, 2004, Henderson’s representative requested that Habitat be approved as the QCE to receive the mitigation lands required by BIO-1 of the final EIR and attached copies of documents from Habitat’s website, both describing its nature sanctuary in the area and by which it seeks donations, and a letter from the Internal Revenue Service, dated October 8, 2003, finding Habitat to be exempt from federal income taxation under Internal Revenue Code section 501(c)(3). In response, City informed Henderson’s representative that the transfer plan would need to be approved by the City Council and listed nine items that would need to be submitted: (1) Habitat’s incorporation papers, (2) its board of directors meeting minutes for the action approving acceptance of the transfer, (3) its bylaws, (4) its most recent auditor’s report, (5) a copy of the habitat resource management plan for the nearest site currently owned by Habitat, (6) a list of its board members, (7) a list of its office locations, (8) a list of all personnel that would be involved in management of the transfer plan and their qualifications, and (9) a proposed operations plan, including maintenance schedule.

On November 3, 2004, Granite sent City a letter informing it that Granite had acquired Henderson’s interest in the Henderson project, and had forwarded the request for information about Habitat on to that entity, which had yet to respond. The letter also informed City that if for any number of reasons the transfer to Habitat did not take place, Granite would transfer property under mitigation BIO-1 to the County.

By December 10, 2004, Granite’s representative informed City that Habitat believed documents it had already submitted addressed all of City’s requirements and requested information regarding the further processing of the land transfer. On December 14, 2004, Planner informed Granite’s representative that City still did not have all of the information requested on Habitat, including audited financial records, a land management plan, “etc., etc., . . . .” Granite’s representative responded that the letters that Habitat’s attorney submitted with the materials provided to City explained how the information previously provided addressed those specific requests.

On January 5, 2005, Sage and Habitat filed a complaint against SPS and Henderson for breach of contract and fraud based upon their failure to transfer the land as required by the Agreement. The following day, City sent a letter to Granite’s representative listing the nine items requested by City and outlining its concerns with the items where the responses on Habitat’s behalf were deemed less than adequate. Granite’s representative forwarded City’s letter to Habitat on January 10, 2005. Habitat recorded a notice of pendency of action against four parcels on January 11, 2005.

On January 13, 2005, Habitat’s attorney refused Granite’s offer to allow it to process the land transfer application directly to City. He also forwarded to Henderson’s attorney Habitat’s response to items four through nine of City’s list. He communicated directly with City by letter dated January 31, 2005, demanding that City provide Habitat with due process (notice and an opportunity to be heard) relating to City’s decision to disqualify Habitat from receiving mitigation land in conjunction with the Henderson project, and requesting a continuance of the hearing scheduled for February 2, 2005. On February 2, 2005, Habitat provided City with an operations plan and annual work plan assessment for its currently managed nature sanctuaries. The agenda for the City Council meeting on the same date listed consideration of Granite’s request to have City approve Habitat as the recipient of mitigation lands for the Henderson project. The staff report prepared by Planner recommended that City determine that Habitat had not demonstrated sufficient qualifications to have the mitigation land transferred to it. Specifically, the report cited the absence of a sufficient auditor’s report for Habitat to clearly reflect its compliance with annual audit requirements, the habitat resources management plan provided for the nearest site currently managed by Habitat was an unsigned draft containing blanks and without exhibits, a list of all board members had not been provided and none of the three listed were from the local area, a list of the trust offices had not been provided, a list of the personnel who would manage the land and a list of their qualifications had not been provided and Habitat indicated it relied on volunteers to conduct ongoing management responsibilities, and no proposed operations plan and maintenance schedule had been submitted. Staff concluded that the County would provide a more “complete and publicly accountable management entity.”

At the February 2, 2005, meeting, the City Council voted to continue the item to its February 16, 2005, meeting in order to allow Planner to review the additional materials received from Habitat. Planner issued a staff report for the February 16, 2005, meeting, which again recommended that Habitat had not demonstrated sufficient qualifications to accept the land transfer for substantially the same reasons listed previously. On February 16, 2005, Habitat’s counsel faxed City a letter challenging the conclusions reached in the staff report as well as the findings in support of the proposed resolution, and including additional attachments. At the meeting, Planner presented his report advising that he believed the County was “a more appropriate entity to receive the land” based upon its position as a “complete and publicly accountable management entity.” The City Council was informed by the City attorney that as of February 11, 2005, Habitat was suspended as a California corporation. Habitat’s attorney also addressed the City Council. The City Council unanimously adopted the resolution establishing criteria for the designation of conservation entities to manage open space habitat transfer lands and denying Granite’s request to allow the transfer of mitigation lands for the Henderson project to Habitat. The criteria established to determine whether an entity was qualified to accept mitigation lands were: “a. The entity must have fulfilled the legal requirements necessary for the creation of the public or private entity. [] b. The entity must demonstrate sufficient capability in terms of resources, available staff, and offices to provide sufficient management of the land and to respond in a timely manner to issues that arise thereupon. [] c. The entity must have proposed a site-specific Habitat Resource Management Plan and an Operations Plan to ensure management and operation of the land in compliance with any applicable mitigations measures. [] d. The entity must be accountable to the members of the immediate community for the entity’s management of the land.”

In the meantime, on February 14, 2005, Granite filed a demurrer to the complaint for breach of contract based on the fact that satisfaction of mitigation condition BIO-1, which had yet to occur, was a prerequisite to a binding contract between the parties, and that the causes of action were not pled with sufficient specificity. The demurrer was overruled. Granite filed its answer on May 2, 2005, alleging affirmative defenses of commercial frustration, failure of consideration, and that the allegations were contrary to the parties’ intent, among others.

On February 18, 2005, Henderson/SPS filed their answer to the breach of contract complaint alleging the affirmative defenses of failure of consideration and commercial frustration among others, and also filed a cross-complaint for rescission based upon failure of consideration, mutual mistake and duress. Habitat/Sage’s special motion to strike the cross-complaint under Code of Civil Procedure section 425.16 was denied. They filed their answer to the cross-complaint on May 5, 2005.

Habitat filed a petition for writ of mandate under sections 1085 and 1094.5 on May 17, 2005, challenging City’s determination that it was not a QCE for the purpose of receiving and managing land to mitigate the environmental impacts of projects within the City. On June 27, 2005, Habitat filed a first amended petition alleging that City’s determination that Habitat was not a QCE was not supported by substantial evidence, but instead resulted from collusion between City and Henderson and/or Granite. It also contended that City acted contrary to law. City’s decision allegedly prevented Habitat from conducting and growing its business and damaged Habitat’s reputation as a land trust and thereby deprived it of a fundamental, vested right. In its memorandum of points and authorities filed May 18, 2006, Habitat argued that City unreasonably withheld its consent to approval of Habitat as a QCE despite an agreement with Henderson to the contrary, that City exceeded its authority in denying QCE status to Habitat under state and federal statutes, that City’s hearing was arbitrary, unfair and capricious because its criteria were vague and because Habitat was not a part of the proceedings but instead had to rely on the project applicant who made false and inaccurate statements about Habitat’s qualifications, and that City’s findings were not supported by the evidence and some were not legally permissible. City filed an answer and responsive memorandum of points and authorities challenging Habitat’s contentions regarding the proper standard of review and denying that any argument in the petition had merit.

On June 13, 2005, pursuant to motions by Henderson/SPS and Granite the trial court ordered the lis pendens recorded by Habitat expunged. Habitat/Sage’s July 2005 application to file a second lis pendens and for attachment and protective orders was also denied.

As the result of a stipulation and order Habitat/Sage filed a first amended complaint for breach of contract on September 19, 2005, alleging breach of contract, breach of the covenant of good faith and fair dealing, constructive trust and unjust enrichment. The only copies of the first amended complaint contained in the record on appeal have no file stamp and state causes of action for breach of contract and fraud only. In addition, it appears from the trial court’s remarks at a subsequent hearing that Cecil Johnson and County Service Area 70, Improvement Zone OS-1 were added as defendants to the first amended complaint. There are no documents that confirm these facts contained in the record on appeal.

Both Henderson/SPS and Granite filed demurrers and motions to strike. The demurrers concern the third cause of action for constructive trust and the fourth cause of action for unjust enrichment. On January 5, 2006, the trial court sustained the demurrers as to the third cause of action without leave to amend and as to the fourth cause of action with leave to amend. It also struck the allegations regarding specific performance from the complaint without leave to amend and struck those regarding Cecil Johnson’s ownership of the land at issue with leave to amend. Habitat/Sage subsequently filed a notice of their election not to amend their first amended complaint leaving only the causes of action for breach of contract and breach of the covenant of good faith and fair dealing as to moving defendants.

Granite and Henderson/SPS filed answers and County filed a demurrer to the breach of contract and constructive trust causes of action in the first amended complaint. The trial court entered a default against Cecil M. Johnson as Trustee of the Cecil M. Johnson Family Trust (“Johnson”) on March 21, 2006. Later, it sustained County’s demurrer to the first cause of action without leave to amend and to the third cause of action with leave to amend.

On April 11, 2006, Habitat/Sage filed the operative second amended complaint including causes of action for breach of contract and breach of the covenant of good faith and fair dealing against Henderson/SPS and Granite, and a cause of action for constructive trust against Johnson and County. Granite, Henderson/SPS and County answered. On June 23, 2006, Brody McFarland (“McFarland”) was substituted in as a defendant in place of Johnson, who had passed away. McFarland’s demurrer to the second amended complaint was sustained without leave to amend. Habitat/Sage’s subsequent motion to have McFarland substituted in as successor trustee in place of Johnson was granted and McFarland filed an answer to the second amended complaint.

While the status of the pleadings was being finalized in the contract action, after a hearing at which the trial court took the matter under submission a statement of decision was issued on September 28, 2006, denying Habitat’s writ petition in its entirety. Judgment in favor of City was entered on November 9, 2006. Habitat thereafter filed its notice of appeal regarding the writ petition.

On January 29, 2007, Habitat/Sage filed a motion for summary adjudication of issues regarding certain of Henderson/SPS and Granite’s affirmative defenses and Henderson/SPS’s cross-complaint for rescission. While that motion was pending, County, Henderson/SPS, and Granite filed motions for summary judgment. On April 17, 2007, the trial court denied Habitat/Sage’s motion for summary adjudication of issues in its entirety. After a hearing on June 5, 2007, the trial court granted all three motions for summary judgment. Pursuant to a stipulation and order filed on July 2, 2007, McFarland was dismissed from the action as if he had filed a motion for summary judgment on the same grounds as the moving parties. Judgment was entered in favor of the remaining defendants on July 2, 2007. Habitat/Sage then filed a notice of appeal. It also filed a motion to correct a clerical error in the judgment which was denied.

The trial court granted in part and denied in part Habitat/Sage’s motion to tax costs claimed by Henderson/SPS. Henderson/SPS and Granite then moved for attorney fees based upon a provision in the Agreement. The trial court granted attorney fees of $666,849.50 to Henderson/SPS and $275,916.75 for attorney fees plus $11,195.68 in costs to Granite. Orders were subsequently filed and Habitat/Sage filed its third notice of appeal.

DISCUSSION

A. Petition for Writ of Mandate

1. Standard of Review

Habitat first argues that because the July 7, 2004, agreement between City and Henderson stated that necessary consent or approvals would not be unreasonably withheld by either party, the standard of review that should be applied to its writ petition is a reasonableness standard. It then argues that because City denied Habitat QCE status for the Henderson project knowing both that a contract existed transferring the mitigation land to Habitat and that Habitat had already been deeded mitigation land from City projects, because the denial creates a “stigma” against it, and because City’s resolution was an adjudicatory action, a fundamental right is implicated, which requires an independent review standard.

Generally, the inquiry for the issuance of a writ of administrative mandamus is whether the entity whose decision is challenged committed a prejudicial abuse of discretion by failing to proceed in the manner required by law, by making a decision that is not supported by the findings it made, or by making findings that are not supported by the evidence. (§ 1094.5, subd. (b).) In cases in which the court is authorized by law to exercise independent judgment, an abuse of discretion occurs if the reviewing court determines that the findings are not supported by the weight of the evidence. In all other cases abuse of discretion may only be established if the findings are not supported by any substantial evidence, in light of the whole record. (§ 1094.5, subd. (c).)

While not terming it precisely as such, Habitat essentially argues that the clause in City’s agreement with Henderson requiring that City not unreasonably withhold approvals should be viewed as a waiver of the general standard of review. “All case law on the subject of waiver is unequivocal: ‘“Waiver always rests upon intent. Waiver is the intentional relinquishment of a known right after knowledge of the facts.[”] [Citations]. The burden, moreover, is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation, and “doubtful cases will be decided against a waiver.”’ [Citations.]” (DRG/Beverly Hills, Ltd. v. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 60.) Further, “[t]he pivotal issue in a claim of waiver is the intention of the party who allegedly relinquished the known legal right.” (Ibid.) In reality, what Habitat seeks to do is to enforce a term in an agreement to which it was not a party, based upon an intent that it ascribes to the parties. However, Habitat has not presented any evidence that by agreeing not to unreasonably withhold approvals, that City was knowingly and intentionally waiving its right to the legal standard of review in any future litigation concerning the agreement, whether brought by a party to the agreement or otherwise. There is simply no evidence that the parties intended anything by the clause other than that they exercise mutual good faith in the future execution of the agreement. Indeed, were we to interpret this general and common contractual clause as reflecting the intent ascribed to the parties by Habitat, we can conceive of few instances involving litigation over a contract that would not include such a waiver of the typical burden of proof/standard of review. (See Benavides v. State Farm General Ins. Co. (2006) 136 Cal.App.4th 1241, 1249 [all contracts contain an implied covenant of good faith and fair dealing requiring the parties to act reasonably].) Habitat failed to meet its burden on appeal.

In addition, Habitat has failed to address the clause in the agreement that states that consent will not be unreasonably withheld, “unless the context otherwise indicates. . . .” Although we do not conclude that this clause applies here, Habitat has not attempted to show that it does not. Therefore, on this independent ground we must again conclude it has not met its burden. Consequently the trial court did not err in refusing to apply a reasonableness standard in determining whether the writ should be granted.

Habitat next claims that it had a fundamental vested right to obtain the mitigation property because it had a contract with Henderson/SPS and Granite. When a trial court reviews an administrative decision that substantially affects a fundamental vested right, it must exercise its independent judgment on the evidence. (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 816-817, fns. 8, 9.) In the context of judicial review of administrative decisions, a fundamental right is one that is of such importance to the individual in the life situation that its vital nature demands a full and independent judicial review when abridged. (Bixby v. Pierno (1971) 4 Cal.3d 130, 144.)

Habitat’s argument misperceives the nature of the decision rendered by City. The question under City’s consideration was whether the applicant had sufficiently demonstrated that Habitat met its criteria to be a QCE for mitigation measure BIO-1 for the Henderson project. Simply because Habitat may have had a contract with Henderson/Granite to obtain a specified parcel of land, it does not follow that it had a fundamental, vested right to be found to be a QCE by City. Indeed, Habitat strongly urges in these consolidated appeals that the two questions are completely unrelated.

In addition, even if City’s resolution had directly involved whether Habitat would receive land that it had contracted to obtain, there is no evidence in the record that the contract had been completed at the time of City’s decision. In fact, at the time of City’s decision, there existed a lawsuit wherein Habitat claimed that the contract had been breached because the land had not been transferred as promised. A vested right is one that is either already possessed or legitimately acquired. (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 396.) It is not one that is merely sought. (Bixby v. Pierno, supra, 4 Cal.3d at p. 144.) Habitat did not own the land and given the then existing dispute, it can hardly be said that Habitat had any right certain to the BIO-1 mitigation property at the time City rendered its decision. Habitat does assert that it was the “equitable owner” of the mitigation land because all of the conditions had been met for the close of escrow under its Agreement with Henderson/Granite, but while it concludes that its right to the property became vested once it became the equitable owner, it cites no authority for that proposition. The argument is therefore waived. (Roden v. AmerisourceBergen Corp. (2007) 155 Cal.App.4th 1548, 1575-1576 (Roden).)

Habitat next claims that it had a fundamental vested right to be a QCE because it had already received mitigation lands from prior City development projects. In this regard it attempts to analogize its right to that of licensees. Such cases have distinguished between the denial of the application for a license, which does not contemplate a vested right, and the suspension or revocation of an existing license, which does. (Berlinghieri v. Department of Motor Vehicles, supra, 33 Cal.3d at p. 396.) City’s resolution does not affect any right that Habitat had to own or manage the property that it already had. Nor does it affect any right that Habitat might have to own or manage property related to any future project should it manage to demonstrate compliance with City’s criteria. The resolution is specific to determining whether Habitat is a QCE for mitigation measure BIO-1 for the Henderson project and is therefore most analogous to the denial of an application for a license, which involves no fundamental vested rights. (Ibid.)

Next, Habitat claims that City’s denial of QCE status stigmatizes it and it is therefore entitled to independent review. The case that it cites, Lubey v. City and County of San Francisco (1979) 98 Cal.App.3d 340, held that where a probationary public employee is terminated based upon charges of misconduct that stigmatize his or her reputation, seriously impairs his or her ability to earn a living or might seriously damage his or her standing in the community, due process requires notice and an opportunity to be heard prior to the termination. (Id. at pp. 345-346.) The Lubey court did not speak to the proper standard of review and thus the case does not stand for the proposition for which Habitat cites it. In addition, unlike the Lubey case where evidence supported the finding that the employees suffered stigma, Habitat merely concludes that City’s resolution “makes it impossible for Habitat Trust to continue to function as a viable land trust” and “makes it impossible for Habitat Trust to obtain further lands in the County.” It does not cite to any evidence that demonstrates that to be the case. To further distinguish Lubey, in light of our discussion of the nature of City’s resolution, we find such stigma as severe as would be suffered by a termination for misconduct unlikely in this case. City’s resolution does not conclude that Habitat had engaged or might engage in any wrongdoing. Rather, it merely stated that in relation to the Henderson project, insufficient information was provided for City to conclude that Habitat met City’s criteria to allow it to have the mitigation lands transferred to it. The trial court did not err in determining that Habitat failed to demonstrate an independent review standard should apply in this case, and properly engaged in a substantial evidence review.

None of this discussion affects the standard of review on appeal since, even when the trial court is required to apply the independent judgment standard of review, the standard of review on appeal of the trial court’s determination remains the substantial evidence test. (Fukuda, supra, 20 Cal.4th at p. 824.)

2. Due Process

Habitat next asserts that City engaged in backroom dealing in order to establish criteria that would exclude Habitat as a QCE and then adopted those criteria and found it did not meet them without providing meaningful notice and an opportunity to be heard.

The evidence in the record does not support any finding that improper ex parte communications occurred with a view to denying Habitat QCE status with respect to the Henderson project. County Supervisor Paul Biane contacted City in June 2004, requesting that it change its development agreements to indicate a preference for County Special Districts to receive CEQA mitigation lands because it was accountable to and available to the public, had an approved management plan and had adequate resources. In response, City did not change its development agreement, but adopted a procedure by which the approval of any other QCE would be done by the City Council instead of by Planner. While Habitat ascribes nefarious purposes to this by labeling it a “backroom deal” effected through “ex parte communications” that constituted “foul play,” and decries City’s failure to disclose Supervisor Biane’s letter to it and to the public, it fails to cite any authority that might indicate any wrongful action by City in this situation. There is no evidence that City attempted to keep Supervisor Biane’s correspondence, or its response thereto, a secret. Further, there is no evidence that this change from approval by Planner to approval by the City Council resulted in any material change to Habitat’s rights. In fact, the record suggests that it was Planner, not the City Council, that suggested criteria for the approval of QCEs. This, and the fact that Planner recommended that the City Council find that insufficient evidence had been presented to conclude Habitat was qualified strongly suggest that the change in procedure reflected by the memo in response to Supervisor Biane’s letter had no effect whatsoever on Habitat’s rights.

Of course, this discussion assumes that Habitat had any “rights” with respect to the procedure City used to determine that it was a QCE for the Henderson project. The only right that Habitat claims City abridged was its due process right to meaningful notice and an opportunity to be heard prior to City’s resolution. However, Habitat does not explain why it was entitled to due process in the first instance. Article I, section 7, of the California Constitution provides that “[a] person may not be deprived of life, liberty, or property without due process of law . . . .” The Fourteenth Amendment to the United States Constitution provides the same protection. Habitat makes no argument that shows how City’s action deprives it of a liberty or property interest for which due process attaches. Rather, its assertions merely assume that it has a due process right. By failing to demonstrate that it is entitled to the right that it claims, Habitat has not carried its burden on appeal to prove that it is entitled to the relief it seeks. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610 (State Farm) [appellant’s burden to show prejudicial error].)

Even were we to assume that Habitat had demonstrated its right to due process, the record demonstrates that it was aware of the conditions under consideration by City and was in fact heard prior to the vote on the resolution. Many of Habitat’s complaints center upon City’s failure to communicate directly with it concerning the information that City desired in order to reach a decision. This stems from the fact that Henderson/Granite was the project applicant and had the contractual relationship with City regarding the transfer of mitigation land. The record establishes Habitat’s knowledge of the information requested by City in order to establish its qualifications no later than November 3, 2004. In addition, when Granite offered to allow Habitat to communicate directly with City, Habitat strongly refused, indicating that it was “not the obligation of [Habitat].”

Despite that refusal, Habitat began corresponding directly with City on January 31, 2005, demanding notice of City’s proposed findings and an opportunity to be heard. The record demonstrates that City complied with Habitat’s request by sending it a copy of the staff report and continuing its deliberation of the matter so that the materials submitted by Habitat could be considered. City accepted and reviewed documents submitted by Habitat in response to Planner’s staff reports and counsel for Habitat spoke at the City Council meeting prior to the adoption of the resolution. Thus, Habitat had notice of the specific deficiencies noted by Planner in support of his recommendation not to approve Habitat and had an opportunity to address those issues prior to any action by City. Assuming that Habitat was entitled to due process, a fact that it has not demonstrated, the trial court did not err in concluding that due process had been afforded.

3. Adequacy of City’s Criteria

Habitat argues that the criteria that City established for determining whether an entity is a QCE were improperly adopted, not in a manner required by law, and should be nullified or voided because they are vague and uncertain, and because they conflict with state and federal laws.

Habitat first claims that City’s adoption of criteria to assess whether an entity would be a QCE for the purpose of obtaining CEQA mitigation lands for which City bore responsibility was improper because the action was akin to legislation. Habitat argues that the item was not on the agenda for the February 16, 2005, meeting, nor was it discussed prior to its adoption by City. Although it does not so state, we presume Habitat’s purpose in citing Central Manufacturing District, Inc. v. Board of Supervisors (1960) 176 Cal.App.2d 850, 860, is to claim that City’s adoption of these criteria was in the nature of an ordinance rather than a resolution. Habitat then claims that City’s action did not follow its own ordinance adoption procedures (but provides no legal authority), or state laws (citing Government Code section 36931 et seq., without any further specificity). We decline to consider this assertion, which is raised for the first time on appeal. “‘A party is not permitted to change his position and adopt a new and different theory on appeal. To permit him to do so would not only be unfair to the trial court, but manifestly unjust to the opposing litigant. [Citation.]’ [Citations.] . . . Whether the rule is to be applied is largely a question of an appellate court’s discretion. [Citation.]” (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.)

Habitat next argues that City’s criteria are unconstitutionally vague and uncertain because it cannot be determined what is necessary in order to comply with them. “It is well settled that ‘a statute which either forbids or requires the doing of an act in terms so vague that people of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.’ [Citations.] This principle applies not only to statutes of a penal nature but also to those prescribing a standard of conduct which is the subject of administrative regulation. [Citations.] The language used in such legislation ‘must be definite enough to provide a standard of conduct’ for those whose activities are prescribed as well as a standard by which the agencies called upon to apply it can ascertain compliance therewith. [Citation.]” (McMurtry v. State Board of Medical Examiners (1960) 180 Cal.App.2d 760, 766 (McMurtry).)

Specifically, Habitat claims that it does not understand what is meant by the requirement that an entity seeking to hold mitigation land must “demonstrate sufficient capability in terms of resources, available staff, and offices to provide sufficient management of the land and to respond in a timely manner to issues that arise thereupon” or by the requirement that it “must be accountable to the members of the immediate community for the entity’s management of the land” with respect to the italicized terms. Once again, the problem with this assertion is that it assumes that the analysis of unconstitutional vagueness should apply in the context of City’s resolution without citation to any authority that it should be so. Counsel did not attempt to remedy this problem in his oral argument on this point. The issue is consequently waived. (Roden, supra, 155 Cal.App.4th at pp. 1575-1576.) In addition, this court has been unable, through its independent research, to find any case wherein a City resolution, as opposed to an ordinance or code section, was analyzed for constitutionality under the standard suggested here by Habitat. Once again we must conclude that Habitat has not carried its burden on appeal to prove that it is entitled to the relief it seeks. (State Farm, supra, 90 Cal.App.4th at p. 610.)

Even were we to assume that City’s resolution should be analyzed for constitutional vagueness, we would not conclude that the terms about which Habitat complains are impermissible. “Approved rules by which to judge the sufficiency of a statute in the premises have been applied in numerous decisions, i.e., the words used in the statute should be ‘well enough known to enable those persons within its purview to understand and correctly apply them.’ [Citation]; words of long usage, or which have an established or ascertainable meaning in the profession or industry involved, or those which have been given a definite and restrictive interpretation by the courts, or the meaning of which may be determined from a fund of human knowledge and experience, will meet the test of certainty. [Citations]; if the words used may be made reasonably certain by reference to the common law, to the legislative history of the statute involved, or to the purpose of that statute, the legislation will be sustained [citations]; and a standard fixed by language which is reasonably certain, judged by the foregoing rules, meets the test of due process ‘notwithstanding an element of degree in the definition as to which estimates might differ.[’] [Citations.]” (McMurtry, supra, 180 Cal.App.2d at pp. 766-767.) Further, “‘. . . enactments should be interpreted when possible to uphold their validity [citation], and . . . courts should construe enactments to give specific content to terms that might otherwise be unconstitutionally vague. [Citations.]’ [Citation.]” (L & M Professional Consultants, Inc. v. Ferreira (1983) 146 Cal.App.3d 1038, 1050.)

Given these standards by which we are constrained to test the language chosen by City for its criteria, and given City’s clearly stated purpose to enable it to implement and enforce CEQA mitigation measures by ensuring any QCE would be able to manage the land in conformance with the required mitigation measures, we do not find the italicized terms to be so vague that men of common intelligence would guess at their meanings. All of the complained of terms are sufficiently clear when viewed in terms of City’s stated purpose. (See Ford Dealers Assn. v. Department of Motor Vehicles (1982) 32 Cal.3d 347, 368-369 [use of generic terms like “sufficient” and “timely” do not render a statute unconstitutionally vague].) The fact that Habitat may not have agreed with City’s perceived need for the criteria that were established does not mean that it could not, using a common sense, practical construction, figure out what they meant.

Finally, Habitat claims that City’s requirements for determining what is a QCE impermissibly conflict with federal and state laws, citing 26 United States Code, sections 170, subdivision (h)(1)(B) and 509, subdivision (a)(2), and Civil Code section 815.3, and thereby run afoul of the preemption doctrine. Once again, Habitat assumes that the preemption analysis applies to criteria set out by a local agency in order to adopt a resolution. It has failed to cite any authority for this proposition and has therefore waived the issue. (Roden, supra, 155 Cal.App.4th at pp. 1575-1576.) However, even if the preemption analysis applies under circumstances such as those involved here, we find no violation.

The United States Constitution allows Congress to preempt state law such that if one conflicts with a federal statute it is “‘without effect.’” (County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 818-819.) The intent of Congress is paramount in determining whether preemption applies. (Id. at p. 819.) There are four types of federal preemption: when Congress expressly states that it is doing so, when the federal and local laws cannot both be followed, when the local rule impedes Congress’s objective in enacting the federal law, and when federal legislation so fully occupies the field that no room remains for additional local regulation. (Ibid.)

Title 26 of the United States Code, cited by appellants, is the Internal Revenue Code. Section 170, subdivision (h)(1)(B), of that title states that for purposes of qualifying for a tax deduction for a qualified conservation contribution, such a contribution is one that is given to a “qualified organization.” 26 United States Code section 509 defines a private foundation and subdivision (a)(2) provides an exception to that definition. The purpose of these statutes is to provide federal tax deductions for contributions of land to, and federal tax exempt status to certain organizations such as Habitat. Under none of the four standards enumerated above can it be said that by enacting legislation designed to obtain revenue for the federal government Congress intended to completely and exclusively define what entities a local agency should be required to approve as owner/managers of mitigation land under a California statute, CEQA. There is simply no basis for applying federal preemption rules here.

Similarly, any local regulation or ordinance that conflicts with the state’s general laws is preempted and is thus void. (O’Connell v. City of Stockton (2007) 41 Cal.4th 1061, 1067.) Such a conflict will be found when the local rule duplicates, contradicts or enters into an area fully occupied by state legislation. (Ibid.) A duplicative rule is one that mimics a state law and a contradictory rule is one that cannot be reconciled with a state law, while a rule enters a fully occupied field when the Legislature expressly states an intent to occupy the legal area or impliedly does so. (Id. at pp. 1067-1068.)

Civil Code section 815.3 defines who may acquire and hold conservation easements. With respect to entities such as Habitat it states, “A tax-exempt nonprofit organization qualified under Section 501(c)(3) of the Internal Revenue Code and qualified to do business in this state which has as its primary purpose the preservation, protection, or enhancement of land in its natural, scenic, historical, agricultural, forested, or open-space condition or use” may do so. (Civ. Code, § 815.3, subd. (a).) City’s criteria for approving an entity to hold mitigation land for condition BIO-1 do not duplicate this section, nor do they conflict with it. There is no express indication that the state Legislature intended to preempt this area of the law. Further, the implication, through the use of the permissive term “may” as opposed to words such as “shall be entitled to” is that the description provided by Civil Code section 815.3 is a minimum requirement. In that context City’s criteria are more akin to supplemental regulations than conflicting rules. This is especially true under the instant circumstances where City is required by other state law to ensure implementation and enforcement of the mitigation measures imposed by CEQA. (Pub. Resources Code, § 21081.6, subd. (b); Cal. Code Regs., tit. 14, §§ 15097, subd. (a), 15126.4, subd. (a)(2).) City’s criteria do not impermissibly conflict with state law.

Habitat specifically complains that contrary to City’s assertion, state law does not require a charitable trust with gross annual revenue of less than $2 million to provide an annual audit. (Gov. Code, § 12586, subd. (e).) That code section is part of the Uniform Supervision of Trustees for Charitable Purposes Act, which provides for oversight of fiduciaries of charitable trusts by the Attorney General and requires that such entities file certain reports to be maintained by the Attorney General. (Gov. Code, §§ 12580, 12584.) While Planner asked Henderson/Granite for Habitat’s “most recent auditor’s report” City’s criteria do not require the filing of an audit with the Attorney General. Thus, City’s criteria do not conflict with this law. Further, the purpose of requesting an audit report was to enable City to determine whether Habitat was fiscally responsible and reliable. Independent of the Attorney General’s reporting requirement, it was entirely reasonable for City to require some evidence of Habitat’s financial resources and accountability in determining whether mitigation land should be turned over to its care.

4. City’s Findings Are Supported by Substantial Evidence

Finally, Habitat contends that certain of City’s findings, specifically the second through fourth findings, are not supported by the evidence. As indicated above, the standard of review on appeal of the trial court’s determination is the substantial evidence test. (Fukuda, supra, 20 Cal.4th at p. 824.) We must review the administrative findings and determine if there is substantial evidence to support them, in light of the whole record. (Auerbach v. Los Angeles County Assessment Appeals Board No. 2 (2008) 167 Cal.App.4th 1428, 1438 (Auerbach); § 1094.5, subd. (c).) “Under the substantial evidence test, courts do not reweigh the evidence. They determine whether there is any evidence (or any reasonable inferences which can be deduced from the evidence), whether contradicted or uncontradicted, which, when viewed in the light most favorable to an administrative order or decision[,] will support the administrative . . . findings of fact. Administrative . . . findings are presumed to be supported by the record; and orders [and] decisions . . . are presumed to be correct. Persons challenging them have the burden of showing that they are not supported or correct. [Citations.]” (Antelope Valley Press v. Poizner (2008) 162 Cal.App.4th 839, 849, fn. 11.)

City’s second finding stated that Habitat “has not demonstrated capability to provide sufficient management of the land described in Mitigation Measure BIO-1, or to respond in a timely manner to issues that arise regarding the land.” More specifically, City was concerned that the audit report Habitat provided with respect to its financial condition was a 2002 report from an umbrella organization and was therefore not specific to Habitat. This finding is supported by the record. While Habitat also provided City with a 2003 statement of profit and loss that document does not demonstrate that Habitat is “conducting its financial affairs in compliance with applicable procedures, accounting standards and laws.” City was also concerned that Habitat did not have local staffing adequate to ensure management of the land on an ongoing basis. The record also supports this finding. The information provided by Habitat demonstrated that Habitat’s closest office is located in Pasadena, approximately 40 miles distant. Habitat admitted that it does not have employees but hires consultants as needed and that board members and volunteers are the ones who monitor Habitat’s sanctuary land. Only two board members live in California and neither of those lives in Rancho Cucamonga. When considered with all of the other information in the record it was reasonable for City to reach the conclusion that it did.

City’s third finding stated that Habitat “has not provided the City with a site-specific Habitat Resource Management Plan [or] any Operations Plan, including a maintenance schedule for the land.” City found that the documents provided by Habitat were a generic and incomplete document, adapted from one produced by San Bernardino County OS-1, and an assessment of needs with no indication that the assessment had been or would be adopted by Habitat. The record supports this finding. The management plan does contain blanks, is not site specific, but rather covers the entire area containing presumably similar habitat, and does not attach referred-to maps. The assessment also does not refer to the site in question, but to other parcels already owned by Habitat. And, rather than challenging the findings as unsupported, Habitat tries to explain why City should have found those documents adequate to its purposes. Based upon the evidence before it, City could reasonably have made the finding that it did.

City’s fourth finding stated that Habitat “has not demonstrated that its operations are conducted in a manner sufficient to provide adequate accountability to members of the immediate community.” More specifically City was concerned that Habitat did not make itself available to members of the community to make reports or complaints or to provide input and did not demonstrate financial accountability to the public. These findings are supported by the record. Habitat’s nearest office is in Pasadena, a considerable distance for a concerned local citizen to travel. Habitat’s bylaws indicate that regular meetings of its board of directors are not necessary, may be conducted by teleconference, and may be held without notice. The only evidence of any meeting ever being held by Habitat shows that it occurred in Providence, Rhode Island, and that the directors in attendance did not constitute a quorum. There is no evidence that any meetings were ever open to the public or that public comment was in any way solicited. We have already discussed the financial documents provided to City. Based upon the evidence before it, City could reasonably have made the finding that it did.

While it is true, as Habitat points out, that certain of City’s specific findings, for example that Habitat failed to provide a list of its offices and that it only had three board members, were incorrect based upon evidence in the record, that does not change the outcome of this appeal. Nor do Habitat’s complaints that City’s findings seemed to ignore evidence in the record that might have supported a contrary conclusion. While City could have reached a different conclusion than it did based upon the evidence that is not our concern. (Antelope Valley Press v. Poizner, supra, 162 Cal.App.4th at p. 849, fn. 11 [in substantial evidence review it does not matter whether evidence is contradicted or other reasonable inferences could be drawn].) Our standard of review requires that we determine whether there exists substantial evidence, in light of the entire record, to support City’s conclusion that Habitat had not demonstrated that it was an appropriate entity to own the BIO-1 mitigation land. (Auerbach, supra, 167 Cal.App.4th at p. 1438; § 1094.5, subd. (c).) The record does contain such evidence, as demonstrated above. Consequently, we have no grounds to grant the relief requested.

In addition, ultimately, what Habitat seeks is to force City to recognize it as a QCE. However, mandamus will not lie to compel a public official to exercise his or her discretion in a particular manner. (Young v. Gannon (2002) 97 Cal.App.4th 209, 221.) Habitat has failed to demonstrate that City had no discretion in this matter or that City exercised its discretion in a fashion not permitted by law. Consequently, we must conclude that the trial court did not err in refusing to grant Habitat’s writ petition.

B. Motion For Summary Judgment

1. Standard of Review

The purpose of summary judgment is “to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844 (Aguilar).) Our de novo review is governed by section 437c, which provides in subdivision (c) that a motion for summary judgment may only be granted when, considering all of the evidence set forth in the papers and all inferences reasonably deducible therefrom, it has been demonstrated that there is no triable issue as to any material fact and the cause of action has no merit. The pleadings govern the issues to be addressed. (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1121.) A defendant or a cross-complainant moving for summary judgment bears the burden of persuasion that there is no triable issue. For a defendant, this burden is met by producing evidence that demonstrates that a cause of action has no merit because one or more of its elements cannot be established to the degree of proof that would be required at trial, or that there is a complete defense to it. Once that has been accomplished, the burden shifts to the plaintiff to show, by producing evidence of specific facts, that a triable issue of material fact exists as to the cause of action or the defense. (Aguilar, supra, 25 Cal.4th at pp. 849-851, 854-855.) For a cross-complainant this burden is met by producing evidence that demonstrates that a cause of action is meritorious because each of its elements can be established to the degree of proof that would be required at trial, or that there is no defense to it. Once that has been accomplished, the burden shifts to the cross-defendant to show, by producing evidence of specific facts, that a triable issue of material fact exists as to the cause of action or defense. (Id. at pp. 849-855.)

2. The Allegations of the Pleadings

The operative second amended complaint alleges causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing against Henderson/SPS and Granite. The sole cause of action alleged against County is for imposition of a constructive trust. Henderson’s cross-complaint alleges three causes of action for rescission based upon failure of consideration, mutual mistake and duress. However, its motion for summary judgment addressed only failure of consideration and mistake.

In order to establish a breach of contract Habitat/Sage must demonstrate the existence of a contract that they performed or were excused from performing, that the contract was breached and that damages resulted from the breach. (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.) The covenant of good faith and fair dealing is implied in every contract and requires that neither party do anything that will injure the right of the other to receive the benefits of the contract. (Cates Construction v. Talbot Partners (1999) 21 Cal.4th 28, 43.) A constructive trust is an equitable remedy to compel the transfer of property by one who is not justly entitled to it to one who is. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 457.) A constructive trust may only be imposed when three conditions are met: the existence of a res, the plaintiff’s right to the res, and the defendant’s acquisition of the res by some wrongful act. (Campbell v. Superior Court (2005) 132 Cal.App.4th 904, 920.)

Habitat/Sage alleged that Henderson/SPS and Granite breached the Agreement by failing to transfer title to the 86 acres of land, by failing to pay for the promised barriers and endowment, by failing to record the notice of agreement and by failing to allow Habitat/Sage to harvest plant life from the development site prior to grading. They alleged that Henderson/SPS and Granite breached the covenant of good faith and fair dealing because they knew of and attended a meeting between County Supervisor Biane, County and/or City staff wherein Supervisor Biane raised objections to Habitat’s receipt of mitigation lands and/or wherein opposition to Habitat’s receipt of mitigation land was discussed. They further alleged that Henderson/SPS and Granite influenced City’s decision to change its procedures and its determination that Habitat was not qualified to manage the BIO-1 mitigation land. Finally, Habitat/Sage alleged that a constructive trust should be imposed upon County because it took possession of the land that was the subject of the Agreement knowing that Habitat/Sage had a superior right to it and that the grant deed was invalid because the grantor was mentally incompetent at the time it was executed.

With respect to Henderson’s cross-complaint, “[i]f the consideration for the obligation of the rescinding party, before it is rendered to him, fails in a material respect from any cause” a party may rescind a contract. (Civ. Code, § 1689, subd. (b)(4).) A contract may also be rescinded if the consent of the rescinding party was given by mistake. (Civ. Code, § 1689, subd. (b)(1).) The party attempting to void the contract as a result of mistake must also show that it would suffer material harm if the agreement were enforced, though that need not be a pecuniary loss. (Guthrie v. Times-Mirror Co. (1975) 51 Cal.App.3d 879, 886.) Henderson alleged that it sought to develop unimproved real property that it owned and a condition for approval of that development was the mitigation of the loss of habitat incident to the development through the conveyance of land to be set aside as open space in perpetuity. Habitat/Sage represented that they were appropriate organizations to receive and manage mitigation land to satisfy the mitigation condition so Henderson entered into the Agreement with them. However, Habitat/Sage were determined not to be acceptable owner/managers of the mitigation land so that consideration to Henderson in entering the Agreement failed in a material respect. Henderson also alleged that at the time the Agreement was entered, both it and Habitat/Sage mistakenly believed and expected that Habitat would be found to be an acceptable owner/manager of the mitigation land.

3. Defendants’/Cross-Complainant’s Showing

Henderson/SPS moved for summary judgment of the first cause of action of the second amended complaint on the grounds that Habitat/Sage could not establish that the Agreement was breached because there was an implied condition that was not fulfilled, and based upon the affirmative defenses of commercial frustration and impossibility, failure of consideration and mistake. They moved for summary judgment of the second cause of action on the ground that there was no evidence that they influenced City to find that Habitat/Sage was not qualified to obtain the BIO-1 mitigation land. Henderson also moved for summary judgment on its cross-complaint for rescission on the grounds of failure of consideration and mistake.

Granite’s motion for summary judgment was based on the same grounds as Henderson/SPS’s. However, Granite Homes of California, Inc., Granite Homes, Inc., and Granite Construction Services, LP also moved for summary judgment on the ground that they were never parties to the Agreement and therefore could not be liable for breach of contract or breach of the covenant of good faith and fair dealing. The trial court granted summary judgment to those entities on that basis. On appeal, Habitat/Sage do not challenge the trial court’s determination that these entities were not parties to the Agreement. Consequently any contention that the trial court erred in making that determination is abandoned and judgment is affirmed in favor of Granite Homes of California, Inc., Granite Homes, Inc., and Granite Construction Services, LP on this separate and independent basis. (Bossert v. Stokes (1960) 179 Cal.App.2d 457, 462.) The only Granite entity with which this appeal is concerned is Rancho 2004, LLC (“Rancho”).

County moved for summary judgment on the grounds that Habitat/Sage could not establish their right to the land in question for the same reasons argued by Henderson/SPS and Rancho in their motions, that section 405.61 gave County a superior right to the land, and that there was no evidence that the grantor was mentally incompetent at the time the deed was executed. The trial court granted summary judgment on each of these grounds.

The land was to be conveyed to Habitat for “habitat conservation purposes.” Mitigation condition BIO-1 originally required transfer of mitigation property to County. Habitat/Sage objected to the amount of land to be set aside and to it being transferred to County. They threatened to sue Henderson unless it agreed to transfer a larger parcel of mitigation land to Habitat and to pay it in excess of $570,000. In response, and prior to execution of the Agreement, Henderson representatives met with Planner and asked to have mitigation condition BIO-1 altered to allow transfer of the mitigation land to Habitat. At that time Planner indicated that “approval of the conservation entity was within his discretion and that he perceived no problem with designating Habitat . . . as a recipient of the mitigation property in satisfaction of Condition BIO-1.” Planner voiced no objection to Henderson’s plan to transfer the BIO-1 mitigation land to Habitat.

The final EIR, issued on April 30, 2004, prior to the execution of the Agreement, allowed the transfer of the mitigation land under mitigation measure BIO-1 to County “or other qualified conservation entity approved by the City.” In response to the final EIR, and prior to executing the Agreement, Sage’s executive director, Leona Klippstein (“Klippstein”) wrote to City indicating that Sage and Henderson had agreed that the mitigation land would be transferred to Habitat “rather than the County.” She also stated that while the final EIR changed the language regarding the entity that would receive the mitigation land, Sage was “concerned that it is not specific enough” and requested that it be more specific as to which conservation entity would receive the lands prior to the vote of the planning commission to approve the final EIR. Habitat/Sage urged at oral argument that their objection to the terminology proposed for BIO-1 proves that it did not believe satisfaction of BIO-1 was the essential purpose of the agreement. On the contrary, if it did not matter to Habitat/Sage whether or not BIO-1 was satisfied, they would never have needed to be involved in City’s approval process at all and Klippstein’s comments would have been unnecessary. Klippstein was aware of the BIO-1 mitigation condition prior to signing the Agreement.

The purchase agreement between Johnson and Henderson, entered prior to the Agreement, and by which Henderson obtained the right to purchase the mitigation property, stated in its recitals that the purpose of that contract was to convey the property to Sage to fulfill the mitigation requirement imposed as a condition of approval of the tentative tract map for the development. The Johnson/Henderson agreement was attached as an exhibit to Habitat/Sage’s second amended complaint.

After the Agreement was entered counsel for Habitat/Sage confirmed that the purpose of the Agreement was to satisfy mitigation condition BIO-1 when he wrote that certain specific language for conservation/open space deed restrictions should be attached to the grant deed(s) and if Henderson or City required different language, Habitat/Sage would have to approve it. Once again, if compliance with City’s BIO-1 mitigation condition was not contemplated, there would be no reason for Habitat/Sage to be concerned with City requesting different language in the deed. Counsel for Habitat/Sage also sent a letter dated January 31, 2005, to City complaining that City’s decision that Habitat was not qualified to hold mitigation land was made with the knowledge that Habitat/Sage had a contract to hold that land in connection with the Henderson development. The letter continued stating that City knew that Habitat and Henderson had entered an agreement to transfer “the subject mitigation land” to Habitat and that City had amended the development agreement with Henderson for that purpose. Finally, the letter accused City of taking intentional action to impair the contract between Habitat/Sage and Henderson. Again, if compliance with City’s BIO-1 mitigation condition was not contemplated then Habitat/Sage would not have cared what action City took.

Since approval of Habitat as an entity qualified to receive the transfer was necessary to fulfill the purpose of the Agreement to satisfy mitigation condition BIO-1 through the transfer of mitigation land to Habitat, approval of Habitat was an implied condition of the contract. Because the implied condition did not come to pass when City determined that Habitat was not a proper entity to receive the mitigation land, Henderson/SPS and Rancho had no duty to perform under the Agreement. (Platt Pacific, Inc. v. Andelson (1993) 6 Cal.4th 307, 313; Civ. Code, § 1436.) Based upon this showing we must conclude that Henderson/SPS and Rancho met their burden of demonstrating that the first cause of action had no merit because one or more of its elements could not be established to the degree of proof that would be required at trial.

As to the second cause of action for breach of the implied covenant of good faith and fair dealing, Henderson/SPS and Rancho demonstrated that Habitat/Sage had not produced any evidence to support their theory that Henderson/SPS or Rancho had any influence in City’s decision that Habitat had failed to demonstrate its qualification to hold the mitigation land. Henderson/SPS’s attorney averred that they learned of City’s change in procedure to approve Habitat long after the Agreement was entered and were otherwise unaware of and had no part in City’s change of procedure. Planner testified that he made the decision regarding the change in procedure at a meeting on June 29, 2004. Henderson/SPS’s representatives were unaware of anyone associated with those entities attending any meeting with Supervisor Biane on June 29, 2004, or any date other than June 14, 2004. Supervisor Biane’s representative who attended the June 29, 2004, meeting did not identify Henderson/SPS or Rancho as having anyone present at the meeting. Henderson/SPS and Rancho argued that Habitat’s response to discovery requesting all facts upon which it based its contention that they attempted to influence City’s decision had yet to produce any evidence but merely counsel’s argument, assumptions and speculation. Based upon this showing we again conclude that Henderson/SPS and Rancho met their burden of demonstrating that the second cause of action has no merit because one or more of its elements could not be established to the degree of proof that would be required at trial.

Henderson/SPS and Rancho also argued that there were no triable issues of material fact as to their affirmative defenses of impossibility and frustration of purpose. “‘A thing is impossible in legal contemplation when it is not practicable; and a thing is impracticable when it can only be done at an excessive and unreasonable cost.’ [Citation.]” (Mineral Park Land Co. v. Howard (1916) 172 Cal. 289, 293.) This does not mean that a party can avoid performance simply because it is more costly than anticipated or results in a loss. (Ibid.) Impracticability does not require literal impossibility but applies when performance would require excessive and unreasonable expense. (City of Vernon v. City of Los Angeles (1955) 45 Cal.2d 710, 717.) Similarly, where performance remains possible, but the reason the parties entered the agreement has been frustrated by a supervening circumstance that was not anticipated, such that the value of performance by the party standing on the contract is substantially destroyed, the doctrine of commercial frustration applies to excuse performance. (Lloyd v. Murphy (1944) 25 Cal.2d 48, 53.) Henderson/SPS and Rancho argued that it was impracticable to require their performance because they would be required to convey 86 acres of land and over $570,000 to Habitat, without complying with City’s conditions to build the development. They also argued that since the essential purpose of the Agreement was to satisfy mitigation condition BIO-1 by transferring mitigation land to Habitat, as demonstrated above, and that purpose could not be fulfilled as a result of the unanticipated circumstance that City determined Habitat did not qualify to hold the mitigation land, their performance was excused under the doctrine of commercial frustration. Henderson/SPS and Rancho’s showing was sufficient to shift the burden to Habitat/Sage to show a triable issue of material fact on these defenses.

Next, Henderson/SPS and Rancho argued that there was a failure of consideration which is a sufficient ground to cancel a contract. (Civ. Code, § 1689, subd. (b)(4).) They urged, for the reasons stated above, that under the terms of the Agreement, Henderson’s consideration was, in part, to satisfy mitigation condition BIO-1 though conveyance of the property to Habitat. Consequently, City’s failure to approve Habitat as a QCE to receive that land resulted in the failure of material consideration to Henderson. Henderson also argued these facts as grounds for summary adjudication of the first cause of action on its complaint for rescission.

Finally, Henderson/SPS and Rancho also claimed that there was a mistake of fact in that both parties to the agreement believed, at the time of contracting that Habitat was a QCE and would be approved by City. Further because performance would require Henderson/SPS and/or Rancho to convey 86 acres of land and over $570,000 to Habitat without complying with City’s conditions to build the development, enforcement of the agreement would be materially harmful and more onerous than had the facts been as believed by the parties at the time of contracting. Again Henderson argued these facts as grounds for summary adjudication of the second cause of action on its complaint for rescission. In both instances defendants’ and cross-complaint’s showing was adequate to shift the burden to Habitat/Sage to demonstrate the existence of a triable issue of material fact.

4. Habitat/Sage’s Response

Preliminarily we note that the apparent failure of appellants to recognize the function of the appellate court or the nature of our review of a judgment based upon a summary judgment order, and the reflection of that failure in the effectively disorganized briefing has made our job infinitely more difficult. Nevertheless, we have done our very best to comprehend appellants’ arguments and to apply them to the appropriate causes of action and/or affirmative defenses.

We will first address Habitat/Sage’s assertion on appeal that the trial court wrongfully sustained objections to its evidence posed by Henderson/SPS and Rancho since those rulings bear on Habitat/Sage’s ability to meet their burden. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139 [review of summary judgment does not consider evidence to which objections have been sustained].) Specifically, Habitat/Sage argue that the trial court abused its discretion in sustaining objections to the declarations of Klippstein, Craig Sherman and David Gribin (“Gribin”). However, they elaborate on only three instances where the trial court’s rulings were allegedly in error. The balance of their challenged rulings are merely cited without explanation, other than to state that they reflect the trial court’s pattern of arbitrary, capricious and one-sided rulings. Appellants bear the burden of establishing an abuse of discretion occurred such that had the evidence not been wrongfully disallowed a different result more favorable to them would have been reached. (County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 944-945 [appellant’s burden to spell out exactly how error caused miscarriage of justice].) Because they have not even attempted to meet this burden as to the rulings other than those discussed below, we consider as waived any such arguments they may have had. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)

Habitat/Sage claim that the trial court improperly sustained defendants’ objections Nos. 36 and 41. The trial court does not state the grounds for sustaining the objections; therefore, as Habitat/Sage concede, it is presumed that they were sustained on the grounds stated. We arrive at this conclusion by analogy to the well known rule that when a specific ruling is not requested from the trial court, a challenge to that ruling is waived. (See, e.g., City of Long Beach v. Farmers & Merchs. Bank (2000) 81 Cal.App.4th 780, 783-784.) Had Habitat/Sage wanted specific rulings as to each objection posed, they should have requested them.

Henderson/SPS’s objection No. 36 (Rancho joined in Henderson/SPS’s objections) challenged paragraph 37, lines 17-25 of Klippstein’s declaration on the grounds that (1) the statements lacked foundation, (2) the statements were mere legal conclusions or conclusions without factual support, (3) the statements were improper opinion, (4) the statements were nothing more than argument, (5) the declarant failed to establish personal knowledge of the matters stated, and (6) the statements are irrelevant given the essential purpose of the Agreement and the fact that Habitat/Sage’s qualifications were not an issue in the case. On appeal Habitat/Sage fail to address the objections that the challenged statements were conclusions and simple argument. Because argument and conclusory statements are the proper subject of objections, (Winnaman v. Cambria Community Services Dist. (1989) 208 Cal.App.3d 49, 54 [argument is not evidence]; Pacific Architects Collaborative v. State of California (1979) 100 Cal.App.3d 110, 119-120; Colby v. Schwartz (1978) 78 Cal.App.3d 885, 889) and given that Habitat/Sage concede that the trial court sustained the objections on all grounds stated, in the absence of any specific challenge, we must conclude that the trial court properly sustained the objections on these grounds. Because there were independent, unchallenged grounds for the trial court’s order, Habitat/Sage’s argument with respect to this objection fails.

Henderson/SPS’s objection No. 41 challenged paragraph 43, lines 1-7 of Klippstein’s declaration on the grounds that the statement was irrelevant given the essential purpose of the Agreement, and because it was contrary to admissions made during the course of discovery. The excluded statement is: “I on behalf of Sage Council and Habitat Trust contemplated that the contract purpose of the Settlement Release Agreement (Exhibit 41) was to increase the amount of mitigation lands being set aside from the Henderson Creek project for permanent habitat conservation above and beyond the 54-acres required by the terms of approval of the Henderson Creek Project EIR; and to have the increased mitigation lands transferred to Habitat Trust instead of the County of San Bernardino.” Habitat/Sage argue that the evidence was relevant to the issue of the parties’ intent at the time of contracting, a central issue in the summary judgment motion. However, evidence of the undisclosed subjective intent of the parties is irrelevant to determining the meaning of contractual language. (Winet v. Price (1992) 4 Cal.App.4th 1159, 1166, fn. 3.) The courts will not enforce a party’s unexpressed intention. (Id. at p. 1166.) Rather, “[t]he law imputes to a person the intention corresponding to the reasonable meaning of his language, acts, and conduct. [Citation.]” (H. S. Crocker Co. v. McFaddin (1957) 148 Cal.App.2d 639, 643.) Klippstein does not indicate that she expressed her asserted intention to anyone before or at the time of contracting. In addition, her prior language, acts and conduct evidence a contrary intention. Therefore, the trial court properly sustained the objection on the grounds of relevance. Because Habitat/Sage have failed to demonstrate that the evidence was improperly excluded on the grounds of relevance, we need not discuss their remaining grounds for arguing error as to this bit of evidence.

Habitat/Sage also argue that the trial court wrongfully struck paragraph No. 6 of Gribin’s declaration. The objections were based upon, and presumably sustained for, lack of foundation, speculation, improper conclusion without factual support and being argument rather than evidence. The only argument raised by the appellants as to the trial court’s alleged error in striking this testimony is that it was plausibly relevant to certain issues. The objection was not based upon the relevance of the testimony and appellants have failed to address the grounds upon which the objection was sustained. Therefore, their argument fails.

Having determined what evidence we are constrained to consider, we now turn to the balance of Habitat/Sage’s contentions on appeal. They first assert that the trial court erred in determining that the contract was not an integrated agreement, but was instead ambiguous and subject to interpretation through parole evidence. They also argue that Henderson/SPS and Rancho cannot use parole evidence to interpret the Agreement in a manner inconsistent with its terms and that the trial court improperly inserted into the contract “a term that had been omitted” that resulted in voiding the Agreement, contrary to rules of interpretation. (§ 1858; Civ. Code, § 1643.) However, these arguments are raised for the first time on appeal. As discussed above, we therefore decline to consider them. (Richmond v. Dart Industries, Inc., supra, 196 Cal.App.3d at p. 874.)

Habitat/Sage next assert that Henderson/SPS and Rancho cannot establish the existence of an enforceable implied condition. They argue that implied conditions are not favored and require the following elements: “(1) the implication must arise from the language used or it must be indispensable to effectuate the intention of the parties; (2) it must appear from the language used that it was so clearly within the contemplation of the parties that they deemed it unnecessary to express it; (3) implied covenants can only be justified on the grounds of legal necessity; (4) a promise can be implied only where it can be rightfully assumed that it would have been made if attention had been called to it; (5) there can be no implied covenant where the subject is completely covered by the contract.” (Cousins Inv. Co. v. Hastings Clothing Co. (1941) 45 Cal.App.2d 141, 149.)

Habitat/Sage argue the defendants cannot establish that the parties would have agreed to the implied condition if attention had been called to it because Klippstein averred that she would have rejected any proposal that Henderson/SPS’s or Rancho’s obligation was based upon City’s approval of Habitat as a QCE. Habitat/Sage cannot properly make this argument because the evidence to which it cites was excluded as incompetent.

They next argue that the subject of conditions to the transfer of land and payment to Habitat was completely covered by the contract and there can be no implied covenant purporting to state additional conditions. As Henderson/SPS point out, this argument misperceives the issue. Habitat/Sage are correct that the Agreement lists six items as “the only conditions to the [close of escrow].” The implied term required by the purpose of the Agreement as discussed above, to wit, that Habitat had to be approved to have the mitigation land transferred to it, is not a condition to the close of escrow, but a condition to the very existence of an enforceable contract. Unlike the facts in the cases cited by Habitat/Sage (Agosta v. Astor (2004) 120 Cal.App.4th 596, 604; Tomlinson v. Qualcomm, Inc. (2002) 97 Cal.App.4th 934, 945; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 340, fn. 10; Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1419; Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 374) the implied condition found by the trial court here does not contradict any of the conditions for the close of escrow. On the contrary, the Agreement is silent as to the parties’ belief regarding Habitat’s qualification to hold the mitigation land. Once the trial court determined that the evidence demonstrated the primary purpose of the Agreement was to satisfy mitigation condition BIO-1 by transferring conservation land to Habitat, it properly concluded that Habitat’s qualification to receive and hold the mitigation land was an implied condition to the formation of the Agreement.

Habitat/Sage complain that in determining the parties’ contractual intent, the trial court improperly gave deference to the evidence presented by Henderson/SPS and Rancho in violation of section 437c, which requires that affidavits in opposition to summary judgment be broadly construed while those in support of summary judgment should be narrowly construed. They complain that the trial court accepted Henderson/SPS’s and Rancho’s evidence regarding all parties’ contractual intent and ignored the contrary evidence Habitat/Sage gave regarding their own intent. They cite Hoover Cmty. Hotel Dev. Corp. v. Thomson (1985) 167 Cal.App.3d 1130, 1136 (Hoover) for the proposition that a statement of someone else’s intent is a mere conclusion of law and is not competent evidence. However, they do not cite to any evidence in the record that they contend reflects someone else stating what their intent was at the time of contracting. This failure is sufficient in itself to reject the argument. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.) In addition, the evidence of Habitat/Sage’s intent at the time of contracting does not consist solely of statements by others, but upon statements and actions taken by Habitat/Sage themselves. The trial court did not have to rely on evidence that was improper according to Hoover, supra. Lastly, while the trial court is required to broadly construe evidence in opposition to a motion for summary judgment (§ 437c), appellants have failed to cite any authority for the proposition that it must consider evidence to which it has sustained an objection. To the extent that appellants assert that the requirement for broad construction should affect whether or not the trial court sustains an otherwise proper objection, they cite no authority for the point, and we consequently reject it. (Roden, supra, 155 Cal.App.4th at pp. 1575-1576.)

Habitat/Sage assert that there exist triable issues of material fact regarding the purpose and intent of the contracting parties because the evidence supports inferences that support their point of view. However, “‘[i]t is solely a judicial function to interpret a written contract unless the interpretation turns upon the credibility of extrinsic evidence, even when conflicting inferences may be drawn from [the] uncontroverted evidence.’ [Citation.]” (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 527.) Appellants seem to assert that because the evidence could indicate different possible outcomes, summary judgment was not appropriate. They argue that the parties have a conflicting view of the intent and purpose of the agreement. However, they do not cite to any competent evidence in the record that supports their implied assertion that interpretation of the agreement rests upon a credibility dispute. Rather, our review of the evidence indicates that there are no factual issues that remain for resolution, rather only the legal effect of the undisputed facts. Therefore, summary judgment was not improper. (National Auto. & Cas. Ins. Co. v. Underwood (1992) 9 Cal.App.4th 31, 36-37.) In addition, the court in Aguilar, supra, 25 Cal.4th at pages 856-857, stated that a trial court must consider whether the inferences to be drawn from the evidence in opposition to a motion for summary judgment would be sufficient to convince the trier of fact that the burden of proof could be met. Based upon that holding, Habitat/Sage’s premise on appeal, that the mere existence of conflicting inferences defeat summary judgment, is without legal support.

Habitat/Sage next argue that the trial court erred in finding that the Agreement could be rescinded on the ground of unilateral mistake because the evidence does not support the trial court’s finding that performance of the Agreement would have been unconscionable. Although the trial court did list the factors for rescission of a contract based on unilateral mistake, we are not convinced that its analysis was based solely upon those factors. In the first instance, neither the cross-complaint nor the motion for summary judgment was based upon a claim of unilateral mistake. Rather, they both alleged mutual mistake. Consequently the trial court had no authority to decide the case based upon unilateral mistake principles. (City of Morgan Hill v. Brown, supra, 71 Cal.App.4th at p. 1121 [the pleadings govern the issues to be addressed].) Further, the trial court found that “all parties assumed that Habitat would be approved as a qualified conservation entity because it had been so designated in the past.” This demonstrates a finding of mutual mistake was reached.

Habitat/Sage argue that the trial court’s determination that enforcement of the Agreement would be unconscionable is not supported by the facts because there is no evidence in the record that the additional mitigation land would have been carved out of the land the defendants intended to develop. However, they have not shown that unconscionability is a necessary finding for the existence of mutual mistake and therefore have not demonstrated the existence of prejudicial error. In addition, we note that the trial court’s conclusion regarding unconscionability as cited by Habitat/Sage was not part of its analysis regarding mistake.

Appellants next assert that the alleged mistake of fact involved a foreseeable prospective occurrence, not the past existence of a thing that has not existed or the present existence of a thing that does not exist as required by Civil Code section 1577, subdivision (2). They do this by altering the nature of the fact upon which the parties were mistaken. They claim the mistake was that City did not approve Habitat as a QCE to receive the mitigation land, an event that occurred months after the Agreement was entered. However, that was not the mistake alleged, nor the mistake found by the trial court. That mistake was that Henderson/SPS and Habitat/Sage, at the time of contracting, believed that Habitat would qualify as a QCE to receive the mitigation land. Unlike the Mosher v. Mayacamas Corp. (1989) 215 Cal.App.3d 1, case cited by Habitat/Sage, where the facts showed not that both parties were mistaken at the time of contracting, but that one party simply failed to consider the possibility of a future event (id. at p. 5), the parties here were mistaken, at the time they entered the Agreement, as to the present fact that Habitat would qualify as a QCE. This fact was an assumption of the Agreement, a circumstance that the Mosher court recognized would have altered its analysis of the risks in favor of finding mistake. (Ibid.) “‘Where from the nature of the contract it is evident that the parties contracted on the basis of the continued existence of the person or thing, condition or state of things, to which it relates, the subsequent perishing of the person or thing, or cessation of existence of the condition, will excuse the performance, a condition to such effect being implied, in spite of the fact that the promise may have been unqualified.’” (Johnson v. Atkins (1942) 53 Cal.App.2d 430, 434.) Habitat/Sage have failed to demonstrate the existence of a triable issue of material fact as to the affirmative defense or the cause of action for rescission based upon mistake.

Next, Habitat/Sage argue that the affirmative defense and cause of action for rescission based upon failure of consideration were not properly adjudicated because the issue of the materiality of the failed consideration is a question of fact, and not appropriate for resolution on summary judgment. They also assert that the consideration that allegedly failed was not within the power of Habitat/Sage to provide. And finally, they assert that there was no complete failure of consideration because Henderson/SPS received the contracted-for benefit of Habitat/Sage’s forbearance from suit and that complete rescission was therefore improper. None of these points were raised below as grounds for challenging the defendants’/cross-complainant’s showing. Although counsel for Habitat/Sage spoke to certain of these assertions regarding rescission at oral argument, he failed to address this fact and did not explain why this court should ignore it. Consequently, as before, we decline to consider these arguments for the first time on appeal. (Richmond v. Dart Industries, Inc., supra, 196 Cal.App.3d at p. 874.)

Habitat/Sage also complain that the trial court failed to give effect to the savings clause of the Agreement to sever those contractual terms that could not be enforced and to give effect to the remainder. The cases Habitat/Sage cite are inapt since they refer to illegal or legally unenforceable contract terms. That is not what we have here. Rather, the contract has been rescinded. The savings clause is simply a part of the contract, and since the effect of rescission is the extinguishment of the contract (Civ. Code, § 1688), the savings clause is of no effect. (Tippett v. Terich (1995) 37 Cal.App.4th 1517, 1535 (disapproved on another ground in Cortez v. Purolator Air Filtration Products Co. (2000) 23 Cal.4th 163, 171, 175-178); 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 926, p. 1023 [rescission terminates further liability and demands restoration of parties to former positions as though contract never entered].)

Habitat/Sage’s only argument concerning the second cause of action for breach of the covenant of good faith and fair dealing comes in a footnote, where they assert that the evidence supports an inference that that Henderson/SPS’s and Rancho’s failure to convince City to find Habitat qualified was the result of a concerted effort to avoid their duties under the Agreement. Breach of the covenant of good faith and fair dealing is nothing more than a cause of action for breach of contract. (Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49.) In light of our discussion above, and appellants’ failure to demonstrate that the trial court erred when it made the challenged orders, there is no contract to breach and this cause of action must fail.

Finally, the third appeal argues only that if the summary judgment in favor of defendants were reversed, then the order for attorney fees and costs should also be reversed. In light of the fact that appellants have failed to demonstrate that they are entitled to reversal of the judgment, the order for attorney fees and costs is affirmed.

DISPOSITION

The judgments and orders in each of the three consolidated appeals are affirmed. Respondents are awarded their costs on appeal.

CERTIFIED FOR PUBLICATION

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ McKINSTER

J.

Filed 7/21/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

CITY OF IRVINE,

Plaintiff and Appellant,

v.

SOUTHERN CALIFORNIA ASSOCIATION OF GOVERNMENTS,

Defendant and Respondent.

G040513

(Super. Ct. No. 07CC8301)

ORDER MODIFYING OPINION

AND DENYING REHEARING; NO

CHANGE IN JUDGMENT

It is ordered that the opinion filed herein on June 30, 2009, be modified as follows:

On page 12, in the first full paragraph beginning with “The trial court reached the correct result,” delete the second sentence, which states “There is no dispute defendant followed the statutorily-mandated procedure described above in determining the RHNA allocation for its region.”

There is no change in the judgment.

Appellant’s petition for rehearing is DENIED.

CERTIFIED FOR PUBLICATION

RYLAARSDAM, ACTING P. J.

WE CONCUR:

MOORE, J.

IKOLA, J.

Filed 6/26/09 (pub. order 7/21/09; see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RAINING DATA CORPORATION,

Plaintiff and Respondent,

v.

MARIO BARRENECHEA,

Defendant and Appellant.

G040902

(Super. Ct. No. 06CC12770)

O P I N I O N

Appeal from orders of the Superior Court of Orange County, Corey S. Cramin, Judge. Affirmed.

The Walker Law Firm, Joseph A. Walker and Jason Matthew Lamb for Defendant and Appellant.

Wilson, Sonsini, Goodrich & Rosati, Ulrico S. Rosales and Michael J. Nader for Plaintiff and Respondent.

* * *

INTRODUCTION

Raining Data Corporation sued Mario Barrenechea, Soheil Raissi, and Adevnet, LLC (collectively referred to as defendants), for misappropriation of trade secrets. Defendants responded with a cross complaint against Raining Data Corporation and its president and chief executive officer, Carlton Baab. (For simplicity, Raining Data Corporation and Baab will be referred to collectively as Raining Data. ) Raining Data filed a motion to strike all causes of action in the cross complaint, pursuant to Code of Civil Procedure section 425.16 (the anti SLAPP [strategic lawsuit against public participation] motion). (All further statutory references are to the Code of Civil Procedure, unless otherwise specified.) The trial court granted the anti SLAPP motion, and struck the entirety of the cross complaint. All three defendants appealed from the order. The appeals of Raissi and Adevnet have been dismissed.

Having reviewed de novo the pleadings and the declarations filed in support of and in opposition to the anti SLAPP motion, we conclude as follows: (1) Raining Data met its burden of demonstrating the acts underlying the cross complaint arose from protected activity; any unprotected activity alleged in the cross complaint was merely incidental to the principal thrust of the cross complaint, which was that defendants were harmed by the filing of Raining Data’s complaint; (2) Barrenechea failed to meet his burden of establishing a probability he would prevail on the cross complaint, a finding which is not challenged on appeal; and (3) Barrenechea’s argument that a cross complaint cannot be challenged by means of an anti SLAPP motion, which is raised for the first time on appeal, has been waived; in any event, the argument is meritless. We affirm the order granting the anti SLAPP motion.

Barrenechea also appeals from an order granting a motion for attorney fees, filed by Raining Data, pursuant to section 425.16, subdivision (c). We conclude the trial court did not abuse its discretion in granting the motion. The declarations of Raining Data’s counsel were sufficient to meet the burden of establishing the reasonableness of the fees incurred, without the need to produce copies of counsel’s detailed billing statements. Barrenechea’s contention that the case was overstaffed with two law firms, making the fees incurred unreasonable and duplicative, was unsupported. We affirm the award of attorney fees to Raining Data.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On December 8, 2006, Raining Data Corporation sued defendants for injunctive relief for misappropriation of trade secrets. The complaint alleged Barrenechea and Raissi were former employees of Raining Data Corporation, and Adevnet was a consulting company owned by Barrenechea and Raissi. The complaint further alleged Barrenechea and Raissi, individually and acting as Adevnet, had used, disclosed, or threatened to use or disclose Raining Data Corporation’s trade secrets.

Defendants filed an answer and a cross complaint on January 10, 2007. In the cross complaint, defendants asserted claims against Raining Data for unfair business practices, violation of civil rights, intentional and negligent interference with prospective economic advantage, malicious prosecution, abuse of process, negligence, and conspiracy, and requested injunctive relief.

Raining Data filed an anti SLAPP motion on March 16, 2007. The trial court granted defendants’ request for limited discovery. After a series of continuances, the anti SLAPP motion was finally heard on June 27, 2008. Following the hearing, the court granted the anti-SLAPP motion. Raining Data filed a motion for attorney fees. After briefing and a hearing, the trial court granted Raining Data’s motion, awarding it $112,353.75. Defendants timely filed notices of appeal of both orders.

During the pendency of the appeal, Adevnet was cancelled by its members, and its appeal has been dismissed. Raissi voluntarily dismissed his appeal, leaving only Barrenechea as an appellant.

DISCUSSION

I.

ANTI-SLAPP ORDER

We review the trial court’s order granting the anti SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.) “‘We consider “the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.” [Citation.] However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” [Citation.]’ [Citation.]” (Id. at p. 326.)

“Section 425.16, subdivision (b)(1) requires the court to engage in a two step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)

A. Raining Data met its burden of demonstrating the acts underlying the cross-complaint arose from protected activity.

The claims in the cross complaint were based on Raining Data’s acts of (1) filing the complaint, and (2) communicating with Adevnet’s customers and potential customers. Raining Data’s “act of filing the complaint in the underlying action squarely falls within section 425.16, subdivision (e)(1).” (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1055.) To the extent Raining Data’s communications with Adevnet’s customers constituted a litigation update, describing the parties’ contentions and court rulings, and were directed toward those persons with some involvement in the litigation, they would be protected activity under section 425.16, subdivision (e)(2). (Contemporary Services Corp. v. Staff Pro Inc., supra, 152 Cal.App.4th at p. 1055.) Neither the cross complaint nor the parties’ submissions in connection with the anti SLAPP motion clearly define when the communications occurred, or what their nature was.

Two of the causes of action in the cross complaint—for malicious prosecution and abuse of process—by definition arise from the protected activity of Raining Data’s filing of its complaint. The remaining causes of action present a classic case of mixed claims of protected and nonprotected activity. “[W]here a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is ‘merely incidental’ to the unprotected conduct [citations].” (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103.) “[I]t is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAP[P] statute applies.” (Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 414.) “‘[A] plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one “cause of action.”’ [Citation.] Conversely, a defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant. [Citation.] We conclude it is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.)

Next, we examine what the cross complaint alleged Raining Data actually did (or failed to do) in order to determine the gravamen of the cross claims. In each of the cross claims, defendants alleged that “in doing the acts herein alleged,” Raining Data caused damage and harm to them. Defendants alleged Raining Data caused them damage and harm by making false statements, committing trade libel, engaging in predatory tactics, harassment, intimidation, interfering with prospective economic advantage, filing frivolous lawsuits, intercepting confidential communications, invading their privacy, attempting to discredit defendants’ reputations, committing business sabotage, and interfering with defendants’ rights of free speech and association. But the cross complaint alleged very little in terms of specific acts on the part of Raining Data that could form a basis for any cause of action. We set forth here all the specific allegations of Raining Data’s conduct or statements causing harm to defendants.

“19. Cross Defendant RAINING DATA CORPORATION’s allegations against these Cross Complainants of theft of Trade Secrets and improper disclosure of their PDP source code is made all the more interesting because: [] – RAINING DATA CORPORATION is not in the business of creating business application software using PDP.NET. This was strictly a marketing effort to show case the capabilities of the PDP.NET product. [] – The RAINING DATA CORPORATION PDP.NET source code was not required to accomplish any of these tasks. [] . . . []

“33. In essence, the Complaint filed by Plaintiff and Cross-Defendants is a frivolous attempt to find an excuse not to continue support of this particular product and cut down costs in the PDP.NET development and promotion efforts. [] . . . []

“42. The claims brought by RAINING DATA that Cross Complainants somehow benefitted from access to PDP.NET Source in order to provide a solution to Intrametrics’ problems or benefitted directly are unrealistic and false and are designed to thwart Cross Complainants’ [startup] business (ADEVNET). [] . . . []

“46. The claims the Plaintiff makes in [its] Complaint, including but not limited to, misappropriation of the PDP.NET source code is blatantly false.

“47. The claim that Plaintiff makes that PDP.NET source code knowledge and/or accessibility gives an advantage to develop .NET business applications is also false. [] . . . []

“50. Cross Complainants allege that the Complaint filed against them is an excuse to extradicate [sic] RAINING DATA from a contractual obligation with Intrametrics by blaming BARRENECHEA and RAISSI for RAINING DATA’s poor business return on investment on the PDP.NET contractual negotiations with Intrametrics.

“51. Cross Defendant RAINING DATA terminated BARRENECHEA without just cause on or about November 2005. RAINING DATA failed to pay BARRENECHEA money owed to him and he was forced to settle his wage and hour claims against RAINING DATA. Thus, [Raining Data]’s allegations[ ] against him are a retaliatory action designed to interfere with business relationships. [] . . . []

“53. Cross-Defendants, and each of them, used threats, intimidation and other illegal conduct, as herein alleged, in order to interfere with the civil rights of Cross Complainants and prevent lawful trade practices and cause injuries to Cross Complainants in an amount to be determined.

“54. That said conduct included, but was not limited to, creating false and negative statements about Cross Complainants to current and prospective clients of said Cross Complainants. [] . . . []

“57. On January 7, 2007, John Parent, President of Wilson Technologies (one of Intrametrics customers) spoke with Cross Complainants and informed them that Raining Data attorneys told Wilson that Wilson cannot and should not work with ADEVNET LLC, BARRENECHEA or RAISSI and that if Wilson Technologies were interested in any licensing of RAINING DATA products they (Wilson Technologies) must agree not to use/hire/retain Cross Complainants for any matter.

“58. RAINING DATA is also contacting other companies within the industry to intentionally interfere with Cross Complainants business opportunities in an unlawful and wrongful manner. [] . . . []

“62. That said conduct includes, but was [not] limited to, discriminating and engaging in an attempt to have the industry within which both Cross Complainants and Cross Defendants engage in business . . . boycott against Cross Complainants.”

The cross complaint includes a single specific allegation of Raining Data’s conduct causing harm to defendants that is not directly tied to Raining Data’s filing of the complaint – the allegation of a communication with Wilson Technologies in paragraph 57. That communication, however, occurred after the filing of Raining Data’s complaint, and may or may not be a protected communication. (Contemporary Services Corp. v. Staff Pro Inc., supra, 152 Cal.App.4th at p. 1055.) The other allegations that do not specifically reference the filing of the complaint are so vague that we cannot determine whether they refer to the same communication alleged in paragraph 57, or to the filing of the complaint, or both, or to something else that is not specifically mentioned in the cross complaint.

In support of the anti SLAPP motion, Raining Data submitted declarations from Baab and Thomas Lim, its chief financial officer, in which they declared they had not undertaken, nor were they aware of any other Raining Data employee ever undertaking, the activities alleged by defendants, detailed ante. Raining Data also offered the declarations of its counsel, stating the allegations in paragraph 57 of the cross complaint were false.

Defendants submitted the declarations of Barrenechea and Raissi, as well as the declarations of Adevnet customers James Roach, Mark H. Allen, and Chris Ruhling. The trial court determined these declarations were inadmissible, because they contained hearsay (Evid. Code, § 1200), lacked proper foundation (Evid. Code, § 702), and, in the case of Roach’s and Ruhling’s declarations, were not properly executed (Code Civ. Proc., § 2015.5). On appeal, Barrenchea does not challenge the trial court’s evidentiary rulings.

We conclude the trial court correctly found the gravamen of the cross complaint was directed at Raining Data’s filing of the complaint – a protected activity – and the incidental reference to one potentially nonprotected activity could not save the entire cross complaint from the anti SLAPP motion.

B. In the trial court, defendants did not establish the probability they would prevail on the cross complaint; on appeal, Barrenechea has waived the issue.

Once the trial court determined the acts underlying the cross complaint arose from protected activity, the burden shifted to defendants to show a probability of prevailing on the cross claims. They failed to do so.

Defendants’ opposition to the anti SLAPP motion did not directly address the probability of prevailing. Rather, it referred to declarations by Barrenechea, Raissi, and Adevnet’s actual and potential customers, and to a separate statement of material facts and evidence which, defendants claimed, showed they had met their burden of producing competent evidence supporting the primary allegations of each cause of action in the cross complaint. The trial court ruled two of the declarations were inadmissible pursuant to section 2015.5, because they were not executed under the laws of the State of California; four other declarations contained matters without proper foundation and hearsay; and the separate statement of material facts and evidence offered in opposition to the anti SLAPP motion was an unauthorized attempt to circumvent the page limits on defendants’ opposition brief. The court therefore found defendants had failed to meet their burden of showing a probability of prevailing on the merits of the cross complaint.

In his appellate briefs, Barrenechea did not argue that he had established a probability of prevailing on the merits of any of the cross claims. Indeed, on appeal, Barrenechea asserts, “[s]imply stated, Respondent [Raining Data Corporation] and Respondent Baab did not meet their initial burden, and, as such, the burden never shifted to Appellants to prove [a] probability that they will prevail on the causes of action.” (Italics added.) If an appellant fails to raise a point in an appellate brief, we may treat the issue as waived; we do so here. (Nelson v. Avondale Homeowners Assn., supra, 172 Cal.App.4th at p. 862; Badie v. Bank of America, supra, 67 Cal.App.4th at pp. 784-785.)

C. Compulsory/Permissive cross-claims

For the first time on appeal, Barrenechea contends his causes of action against Raining Data Corporation were compulsory cross claims, and his causes of action against Baab were permissive cross claims. Barrenechea argues separately that a compulsory cross claim may not be stricken by an anti SLAPP motion, and that a permissive cross claim may not be stricken by an anti SLAPP motion. If we were to accept Barrenechea’s arguments, we would be forced to reach the conclusion that a cross complaint, unlike a complaint, can never be subject to an anti SLAPP motion, because all the cross claims must be either compulsory or permissive.

In addition to contradicting the clear legislative intent behind the anti SLAPP statute, such a conclusion would be against the weight of clear authority permitting cross complaints and cross claims to be stricken by means of anti SLAPP motions. (See, e.g., Lien v. Lucky United Properties Investment, Inc. (2008) 163 Cal.App.4th 620 [affirming order granting motion to strike cross complaint for malicious prosecution]; Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 [cross complaint for, inter alia, retaliatory eviction, breach of contract, and breach of the implied covenant of quiet enjoyment in response to complaint for unlawful detainer; anti SLAPP motion properly granted]; Neville v. Chudacoff (2008) 160 Cal.App.4th 1255 [affirming order granting motion to strike cross complaint for defamation]; Philipson & Simon v. Gulsvig (2007) 154 Cal.App.4th 347 [reversing order denying motion to strike cross complaint].)

Some, but not all, cross complaints are subject to anti SLAPP motions. “Although a cross-complaint may be subject to a section 425.16 motion, not all cross complaints would qualify as SLAPP suits. A defendant may file a cross complaint against the plaintiff for any existing cause of action regardless of its nature and origins. [Citation.] Only those cross-complaints alleging a cause of action arising from the plaintiff’s act of filing the complaint against the defendant and the subsequent litigation would potentially qualify as a SLAPP action. [Citation.] For example, a person may attempt to bring a SLAPP suit alleging that libelous allegations or statements were contained in the complaint itself. However, because defendant’s allegations are privileged communications under Civil Code section 47, the suit would be meritless. [Citation.] [] A compulsory cross-complaint on a ‘related cause of action’ against the plaintiff [citation] would rarely, if ever, qualify as a SLAPP suit arising from petition activity. By definition, a ‘related cause of action’ is ‘a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.’ [Citation.] The SLAPP suit is not ‘related’ to the transaction or occurrence which is the subject of the plaintiff’s complaint, but arises out of the litigation process itself.” (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 651.)

In Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 924-925, Kajima Engineering and Construction, Inc., sued the city for breach of contract, alleging the city had failed to pay it for work on a construction project. The city cross claimed, alleging breach of contract and breach of the implied covenant of good faith and fair dealing in connection with Kajima’s bidding and work on the project. (Id. at p. 925.) The city later amended its cross complaint to add 19 additional causes of action against Kajima and its two parent companies. (Ibid.) Kajima filed an anti SLAPP motion against the entire cross complaint; the trial court ultimately granted the motion as to one cause of action. (Id. at pp. 925-926.) The appellate court concluded the trial court did not err in denying the motion as to the other causes of action, which alleged Kajima’s fraudulent acts in the bidding, billing, and work processes. (Id. at pp. 929-930.) The appellate court noted, “[i]t is only the 12th cause of action struck by the trial court that mentions Kajima’s specific act in filing the underlying complaint in this action.” (Id. at p. 930.) The court concluded that because the majority of the acts alleged in the cross complaint occurred while Kajima was “seeking to secure and working on a construction project,” not while it was “exercising its right of petition,” Kajima’s anti SLAPP motion was properly denied as to all but one cause of action because “Kajima’s concessions . . . demonstrate the alleged improper conduct does not arise from Kajima’s petitioning activities but rather from its bidding and contracting practices.” (Ibid.)

As explained in detail, ante, the conduct and statements of Raining Data alleged in the cross complaint arose from protected activity, or were incidental thereto. The gravamen of the entire cross complaint was based on Raining Data Corporation’s filing of the complaint. Therefore, applying the analysis of Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th 628 and Kajima Engineering & Construction, Inc. v. City of Los Angeles, supra, 95 Cal.App.4th 921, the cross complaint was subject to an anti SLAPP motion.

II.

ATTORNEY FEES ORDER

Section 425.16, subdivision (c) makes an award of attorney fees to a defendant, who prevails on an anti SLAPP motion, mandatory. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) We review the amount of attorney fees awarded for abuse of discretion. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1322.) A trial court’s attorney fee award will not be set aside “absent a showing that it is manifestly excessive in the circumstances.” (Children’s Hospital & Medical Center v. Bontá (2002) 97 Cal.App.4th 740, 782.)

On appeal, Barrenechea makes two arguments to support his claim that the attorney fees awarded by the trial court were manifestly excessive under the circumstances. First, Barrenechea contends Raining Data failed to meet its initial burden to establish the reasonableness of the fees incurred because it did not submit its attorneys’ billing statements. Barrenechea claims the declarations from Raining Data’s attorneys “do not provide any basis for determining how much time was spent by any one attorney on any particular claims. Rather, the declarations give broad descriptions to the work provided by each attorney. The declarations are devoid of any information to allow the trial court to determine whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended.” The law is clear, however, that an award of attorney fees may be based on counsel’s declarations, without production of detailed time records. (See Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1398; Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587.) Raining Data’s attorneys provided declarations detailing their experience and expertise supporting their billing rates, and explained the work provided to Raining Data. Barrenechea did not offer any evidence to challenge any statement in Raining Data’s counsel’s declarations.

Second, Barrenechea contends the case was overstaffed with attorneys from two law firms, and the entirety of the fees incurred by the attorneys from one firm should have been stricken by the trial court. (The trial court did strike the fees incurred by one attorney from that firm as duplicative and unnecessary.) Inefficient or duplicative efforts by counsel may not be compensated. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) Raining Data’s counsel’s declarations explained how the two law firms collaborated on the anti SLAPP motion, by allocating different legal issues between the firms and assigning different tasks to each. An “assertion [that] is unaccompanied by any citation to the record or any explanation of which fees were unreasonable or duplicative” is insufficient to disturb the trial court’s discretionary award of attorney fees. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1248.)

DISPOSITION

The orders are affirmed. Respondent to recover costs and attorney fees on appeal, the amount of which shall be determined by the trial court.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

ARONSON, J.

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RAINING DATA CORPORATION,

Plaintiff and Respondent,

v.

MARIO BARRENECHEA,

Defendant and Appellant.

G040902

(Super. Ct. No. 06CC12770)

ORDER GRANTING REQUEST
FOR PUBLICATION

Respondent has requested that our opinion, filed on June 26, 2009, be certified for publication. It appears that our opinion meets the standards set forth in California Rules of Court, rule 8.1105(c). The request is GRANTED.

The opinion is ordered published in the Official Reports.

FYBEL, J.

I CONCUR:

ARONSON, ACTING P. J.

Filed 7/20/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

AMANDA LAABS,

Plaintiff and Appellant,

v.

SOUTHERN CALIFORNIA EDISON COMPANY et al.,

Defendants and Respondents.

E044917

(Super.Ct.No. VCVVS032374)

O P I N I O N

APPEAL from the Superior Court of San Bernardino County. Kurt J. Lewin (retired judge of the L.A. Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Tom Garza, Judges. Affirmed in part and reversed in part.

Lascher & Lascher, Wendy Lascher, Aris Karakalos; Richard Harris Law Firm and Richard Harris for Plaintiff and Appellant.

Brian A. Cardoza for Defendants and Respondents.

I. INTRODUCTION

Plaintiff Amanda Laabs was a passenger in a car that collided with another car in an intersection and then struck a light pole installed and owned by defendant Southern California Edison Company (SCE). Laabs sued various parties, including SCE and Edison International (Edison), for damages. Relative to SCE and Edison, Laabs alleged that these defendants were negligent and proximately caused her injuries by placing and maintaining the light pole too close to the curb. SCE and Edison moved for summary judgment on the ground that they owed no duty of care to Laabs as a matter of law. The court granted the motion and entered judgment in their favor. Laabs appealed. Because Laabs presented no argument against summary judgment in favor of Edison, we affirm the judgment as to that party. For reasons explained below, we reverse the judgment in favor of SCE.

II. FACTUAL AND PROCEDURAL BACKGROUND

Laabs was a passenger in a car driven by James Dimeo. Dimeo was driving northbound on Ridgecrest Road, which has a posted speed limit of 55 miles per hour. He was driving at an excessive rate of speed. Dimeo’s car was struck by another car at an intersection with Pebble Beach Drive. The impact caused Dimeo’s car to travel across the two southbound lanes of Ridgecrest Road, jump the curb, slide along the sidewalk for some distance, and hit a concrete light pole erected 18 inches away from the curb. Laabs was injured. The light pole was owned and maintained by SCE. Laabs sued SCE and Edison on the theory that these defendants acted negligently by installing and maintaining the light pole so close to the curb.

SCE and Edison moved for summary judgment on the ground that “they owed no duty of care” to Laabs. The facts recited above regarding the collision are essentially undisputed. Defendants also rely upon the following undisputed facts: SCE provides electrical service to the City of Victorville pursuant to a written agreement; SCE, not Edison, owned and maintained the subject light pole; the light poles are installed for the benefit of the city; the subject light pole was installed in 1993 and was made of concrete; the side of the light pole facing the street is 18 inches from the curb; at the light pole’s location, the paved sidewalk is six feet two inches wide; Dimeo’s car slid on the sidewalk “and came to rest with its front end extended well beyond the paved sidewalk”; and the light pole was designed to provide light for traffic traveling southbound, not northbound, on Ridgecrest Road.

In support of the motion, SCE and Edison relied primarily upon the declarations of Robert Binns and Y.M. Nahabedian. Binns is a supervisor in SCE’s Street and Outdoor Lighting Department. He authenticated a “Master Agreement for Service and Street Lighting” entered into between SCE and the City of Victorville in 1977. Under this agreement, light poles are to be installed by SCE at locations shown on a map, which, according to the agreement, is on file with the city clerk. A copy of the map is also purportedly attached as an exhibit to the agreement. However, the copy of the agreement included in our record does not include the map exhibit, and a copy of the map is not otherwise included in our record. The agreement further provides that “[a]ll poles, wires, lights, and electrical apparatus installed by [SCE] . . . shall be so placed as to work the least possible public and private inconvenience, and [the City of Victorville] may at any time order the location of any part of the system changed by [SCE] at the expense of [the City of Victorville] to conform to the above requirements.”

Binns further declared that light poles installed by SCE in the City of Victorville are for the benefit of the City. Binns explained that SCE “defers to the appropriate governmental agency for all decisions related to street design and/or traffic engineering,” and that the decision regarding the location of the light pole was made by “the City [of Victorville] and/or the developer of the area.” The subject concrete light pole was erected in 1993. Although the installation work order for the light pole was not available, Binns stated that he has “seen no evidence to suggest that SCE deviated from its custom and practice with regards to street lighting design and installation with regards to the subject Electrolier.” He described such custom and practice as follows: “Typically, the City or developer requesting new street light facilities hires its own engineers, including street lighting engineers, to design the type of system required for the project. Once the plans and permits are secured, SCE’s planning department is contacted to co-ordinate the installation of the desired lighting as consistent with the pre-designed plans.”

The other declarant in support of the motion, Nahabedian, is a retained civil and traffic engineering expert. According to Nahabedian, the center of the subject light pole was 22 inches from the top of the curb and the curbside edge of the light pole was 18 inches from the top of the curb. The paved sidewalk at the point where the light pole was installed is six feet two inches wide. Nahabedian opined that “the location and the placement of the subject Luminaire was reasonable and was in conformity with the luminaire construction industry’s practice in California.” Nahabedian relied, in part, upon “‘A Policy on Geometric Design of Highways and Streets’” published by the American Association of State Highway and Transportation Officials. This document states: “Where there are curbed sections, utilities should be located in the border areas between the curb and sidewalk, at least 0.5 [meters] [1.5 ft] behind the face of the curb, and where practical, behind the sidewalk.” The placement of the subject light pole, he states, conforms to these requirements. Nahabedian also relied upon his experience while employed with the California Department of Transportation. He stated that “the standard practice in California . . . is to place luminaire poles along roadways with pedestrian sidewalks behind concrete curbs from 18 inches to 30 inches, depending upon the width of the paved sidewalk. In general, a set-back of 18-24 inches is common placement in paved sidewalks less than 7 feet in width and set-backs of 24-30 inches on paved sidewalks 8 feet or wider.” He concludes that the placement of the subject light pole was consistent with this practice.

In her opposition separate statement, Laabs disputes the following conclusions of defendants’ experts: the location of the light pole was within “common industry practice and is consistent with industry standards for road construction of the type at issue”; and, “[f]rom a roadside design standpoint, it is unreasonable to require that the Electrolier on the west side of Ridgecrest Road (in the Direction of Southbound traffic) [be] designed to avoid contact by out of control vehicles traveling northbound in excess of 100 miles per hour, which cross four lanes of travel, enter on coming traffic, jump the curb on th[e] opposite side of the street and slide into it.”

Laabs also asserted the following “undisputed facts”: the intersection of Ridgecrest Road and Pebble Beach Drive has been the site of numerous accidents; the intersection became more dangerous following the widening of Ridgecrest Road in 1996; the installation of the subject light pole was in direct contravention of highway safety standards; 12 feet of space is available for the installation of light poles along Ridgecrest Road; under Caltrans standards, the light poles should have been set back as far as practical from the roadway to prevent the least possible hazards to out-of-control vehicles; the location of the light pole “constituted a dangerous condition”; and the City of Victorville does not design, specify, suggest or approve any specification of a design, manufacture, or process of the light poles provided by SCE. Defendants objected to some of these additional facts as irrelevant and others as lacking foundation or constituting improper expert opinion evidence. The court overruled these objections.

In support of her opposition, Laabs relied primarily upon declarations by John McGlade and Howard Anderson. John McGlade is the City Engineer of the City of Victorville. McGlade declared that the light poles on Ridgecrest Road “are owned, installed, maintained, and controlled by [SCE].” He further stated that the “City of Victorville does not design, specify, suggest or approve any specification of a design, manufacture or process for the [luminaires] or the structures on which the [luminaires] are attached, installed or otherwise provided by [SCE].”

Howard Anderson is an expert in the design and construction of safe highways and roadways. According to Anderson, the average speed of northbound traffic on Ridgecrest Road near the point of the collision was 56 miles per hour, and “the 85th percentile of drivers . . . were traveling at 62 [miles per hour].” Anderson opined that the design of the Ridgecrest Road/Pebble Beach Drive intersection created a dangerous condition. Anderson also made the following statements: “[M]y examination of the subject intersection revealed the installation of lighting and luminaires supports, such as the one struck by the Porsche in the subject accident, in direct contravention of highway safety standards”; “California regulations for traffic highway safety and construction require that any such lights and their luminaires supports must be constructed to present the least possible hazards to out of control vehicles”; “The subject luminaires supports have been installed along the southbound side of Ridgecrest Road leading up to and away from the subject intersection”; “Where lights are installed, lumina[ires] supports are required to be placed as far as possible from the roadway”; “The subject lumina[ires] supports have been placed approximately eighteen (18) inches from the curb line and actually on a pedestrian sidewalk in direct violation of the clear roadside policy”; “It is my expert opinion that the installation of light supports along the southbound travel lanes of Ridgecrest Road created a dangerous condition”; and, “It is my expert opinion that the approval of the design and installation of light supports along the southbound travel lanes of Ridgecrest Road was unreasonable.”

At Anderson’s deposition, he was asked to explain his statement that the installation of the light pole contravenes highway safety standards. He explained that “it is the State of California’s practice, and all other practices, that you get the objects as far back from the travel lane as possible.” At the area where the collision occurred, Anderson explained further, the light pole could have been placed as much as 12 feet away from the curb. Anderson also pointed to a statistic that 60 percent of the people in an accident that involves hitting a light pole die as a result; thus, “anybody that is setting them out against the curb should have a real good reason to do it[,] and why not use the right-of-way that is available to lessen that chance of that severe accident.”

When Anderson was asked whether the light pole would still be a hazard if it was placed three feet from the curb, he responded: “It could, but it would be less likely, and four feet less likely and five feet and certainly nothing to prevent it from being installed at ten feet because that is still within the right-of-way . . . .” Later, he added: “The closer any hazard gets to the road, the more hazardous it is, and if it was set back the ten feet, your chances of being hit are considerably less than they are if they’re 18 inches.”

Laabs also submitted the declarations of Keith Friedman and Robert Crommelin. Friedman is a retained accident reconstruction expert. He declared that, based upon his preliminary analysis, Dimeo was driving at approximately 74 miles per hour at the time of impact.

Robert Crommelin is a retained traffic engineering expert. Crommelin opined that the intersection of Ridgecrest Road and Pebble Beach Drive was in a dangerous condition based upon the “negligent design” of the intersection. He based this opinion, in part, upon evidence of 12 crashes with similar patterns involving a northbound through vehicle and a westbound left-turning vehicle occurring in the 11 years preceding the subject collision.

III. STANDARD OF REVIEW

A trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).)

A moving party defendant is entitled to summary judgment if it establishes a complete defense to the plaintiff’s causes of action, or shows that one or more elements of each cause of action cannot be established. The defendant must support its motion with affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. (Code Civ. Proc., § 437c, subds. (b) & (o)(2); Aguilar, supra, 25 Cal.4th at p. 849.)

A moving party defendant bears the initial burden of production to make a prima facie showing that no triable issue of material fact exists. Once the initial burden of production is met, the burden shifts to the responding party plaintiff to demonstrate the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at pp. 850-851.) The plaintiff may not rely upon the mere allegations in its complaint, but must set forth “specific facts” showing that a triable issue exists. (Code Civ. Proc., § 437c, subd. (p)(2).)

From commencement to conclusion, the moving party defendant bears the burden of persuasion that there is no triable issue of material fact and that the defendant is entitled to judgment as a matter of law. (Aguilar, supra, 25 Cal.4th at p. 850.) “In determining the propriety of a summary judgment, the trial court is limited to facts shown by the evidentiary materials submitted . . . . [Citations.] The court must consider all evidence set forth in the parties’ papers, and summary judgment is to be granted if all the papers submitted show there is no triable issue of material fact in the action, thereby entitling the moving party to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)” (Committee to Save the Beverly Highlands Homes Assn. v. Beverly Highlands Homes Assn. (2001) 92 Cal.App.4th 1247, 1261.)

“On appeal, we exercise ‘an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.’ [Citation.] ‘. . . Moreover, we construe the moving party’s affidavits strictly, construe the opponent’s affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’ [Citations.]” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202.)

IV. ANALYSIS

A. Introduction

Summary judgment was granted in favor of SCE on the ground that it owed no duty of care to Laabs as a matter of law. As we explain, we will reverse. We note, however, that we do not hold that SCE owed Laabs a duty of care as a matter of law; rather, we hold that triable issues of fact exist as to the relevant considerations underlying duty in this case, and that SCE failed to establish that it was entitled to judgment as a matter of law. While we recognize that the issue of duty is a matter for the trial court, it is nonetheless a factually oriented inquiry. As stated in Burger v. Pond (1990) 224 Cal.App.3d 597, 603, “‘Foreseeability’ and ‘policy considerations’ are not determined in a vacuum, but rather depend . . . upon the particular circumstances in which the purported wrongful conduct occurred.”

B. General Duty of Public Utilities to Use Reasonable Care in the Placement of Light Poles

We begin by noting that the concept that a public utility may owe a general duty to motorists to use reasonable care when placing light poles adjacent to roadways is not novel. In Gerberich v. Southern Calif. Edison Co. (1935) 5 Cal.2d 46, our Supreme Court stated a “general rule that where a pole is located in too close proximity to the traveled portion of the highway, . . . recovery [by a plaintiff injured in a collision with the pole] may be justified.” (Id. at p. 53; accord, Norton v. City of Pomona (1935) 5 Cal.2d 54, 60-61; George v. City of Los Angeles (1938) 11 Cal.2d 303, 310-313.) The Gerberich court explained that a public utility’s light pole “may by reason of its location or maintenance without warning signs, lights, guards or other precautions, constitute a danger to traffic; and if the danger is sufficiently great, and it can be avoided by the exercise of reasonable care, either in relocation or the placing of effective warning devices or guards, then the jury might find negligence in the failure to take such steps.” (Gerberich v. Southern Calif. Edison Co., supra, at pp. 51-52, italics added.) More recently, a Court of Appeal noted the continuing validity of these authorities in White v. Southern Cal. Edison Co. (1994) 25 Cal.App.4th 442, which stated that a “public utility, which negligently places a power pole too close to the road, may be liable to the occupants of a motor vehicle injured when their vehicle collides with the pole.” (Id. at pp. 447-448 [dictum].)

Indeed, SCE acknowledges that as the owner of property it has a duty to exercise ordinary care in the management of such property in order to avoid exposing others to an unreasonable risk of harm. (See Rowland v. Christian (1968) 69 Cal.2d 108, 119; Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) Nevertheless, SCE argues that it did not owe a duty of care to Laabs under the circumstances presented here based upon the application of traditional factors used to find a duty of care. We now turn to an examination of these factors.

C. Considerations in Evaluating the Issue of Duty

“The threshold element of a cause of action for negligence is the existence of a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion. [Citations.]” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) As a general rule, each person has a duty to use ordinary care and “is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . .” (Rowland v. Christian, supra, 69 Cal.2d at p. 112; Civ. Code, § 1714.) This applies to public utilities, which have “a general duty to exercise reasonable care in the management of [their] personal and real property.” (White v. Southern Cal. Edison Co., supra, 25 Cal.App.4th at p. 447.)

“‘Courts, however, have invoked the concept of duty to limit generally “the otherwise potentially infinite liability which would follow from every negligent act . . . .”’ [Citations.]” (Bily v. Arthur Young & Co., supra, 3 Cal.4th at p. 397.) “A judicial conclusion that a duty is present or absent is merely ‘“a shorthand statement . . . rather than an aid to analysis . . . . ‘[D]uty,’ is not sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.”’ [Citations.]” (Ibid.) “Whether a given case falls within an exception to [the] general rule, or whether a duty of care exists in a given circumstance, ‘is a question of law to be determined [by the court] on a case-by-case basis.’ [Citation.]” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.) This determination involves the balancing of various factors, including “‘[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 675, fn. 5, quoting Rowland v. Christian, supra, 69 Cal.2d at p. 113.)

D. Forseeability of Harm

“The foreseeability of the harm, though not determinative, has become the chief factor in duty analysis.” (Scott v. Chevron U.S.A. (1992) 5 Cal.App.4th 510, 515 (Scott).) Indeed, SCE places heavy emphasis on this factor. Our state Supreme Court discussed the foreseeability analysis in Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49. In that case, the plaintiff was inside a telephone booth located in a parking lot 15 feet away from the curb when an intoxicated driver veered off the street and crashed into the booth, injuring plaintiff. (Id. at pp. 52-54.) The plaintiff sued the entities that installed and maintained the telephone booth, alleging that the booth was negligently located too close to the street. (Id. at p. 53.) The defendants moved for summary judgment, which the trial court granted. The Supreme Court reversed. Regarding the issue of foreseeability, the court explained: “In pursuing this inquiry, it is well to remember that ‘foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.’ [Citation.] One may be held accountable for creating even ‘“the risk of a slight possibility of injury if a reasonably prudent [person] would not do so.”’ [Citations.] Moreover, it is settled that what is required to be foreseeable is the general character of the event or harm—e.g., being struck by a car while standing in a phone booth—not its precise nature or manner of occurrence.” (Id. at pp. 57-58.)

Foreseeability with respect to the analysis of duty must be distinguished from forseeability in the context of determining negligence (i.e., breach of duty) or causation. The failure to distinguish the variety of roles played by the concept of foreseeability in tort has caused confusion. (Scott, supra, 5 Cal.App.4th at pp. 515-516; Weissich v. County of Marin (1990) 224 Cal.App.3d 1069, 1076; see also Lopez v. McDonald’s Corp. (1987) 193 Cal.App.3d 495, 507, fn. 6.) As the Scott court explained, in analyzing duty, the court’s task “‘“is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” [Citation.] Viewed in this light, the question of foreseeability in a “duty” context is a limited one for the court, and readily contrasted with the fact-specific foreseeability questions bearing on negligence (breach of duty) and proximate causation posed to the jury or trier of fact. [Citation.]’ [Citation.]” (Scott, supra, at p. 516.) Thus, while foreseeability with respect to duty is determined by focusing on the general character of the event and inquiring whether such event is “‘likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct’” (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 57), foreseeability in evaluating negligence and causation requires a “more focused, fact-specific” inquiry that takes into account a particular plaintiff’s injuries and the particular defendant’s conduct (see Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, fn. 6; Scott, supra, at p. 516). Because SCE sought summary judgment solely on the ground that it “owed no duty” as a matter of law, we are not concerned with these “more focused, fact-specific” inquiries suggested by both respondents and the dissent.

The “general character of the event” with which we are concerned in this case is a vehicle leaving a roadway where vehicle speeds commonly reach 62 miles per hour or more and striking a fixed concrete light pole placed 18 inches away from the curb. This could occur in a number of ways: a front tire blowout could cause a driver to lose control of his car; a driver could take evasive action to avoid a hazard and lose control of his car; a car could careen out of control following a collision with another vehicle. All of these events are, of course, easily foreseeable for purposes of an analysis of duty; that is, a vehicle involved in an intersection collision being propelled by the impact over a curb is “‘likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.’ [Citation.]” (Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal.3d at p. 57.) We thus find no difficulty in concluding that triable issues exist as to the foreseeability of the general character of the event.

Both SCE and the dissent rely heavily upon the decision in Scott to support the argument that the foreseeablity of harm is lacking in the present case In Scott, a drunk driver drifted off a highway and hit a guardrail, then veered back across the highway into opposing lanes of traffic where he collided with another car, killing the driver and injuring passengers of that car. (Scott, supra, 5 Cal.App.4th at pp. 513-514.) The State of California placed the guardrail to protect cars from hitting an above-ground gas valve, or “rectifier,” that was connected to an underground pipeline maintained by Chevron U.S.A. (Id. at p. 514.) Chevron was not consulted about the guardrail and was not involved in the design or installation of it. (Ibid.) The family of the driver who was killed sued Chevron on the theory that its location of the rectifier caused the state to erect the guardrail, which in turn created a substantial risk of cross-median accidents. (Ibid.)

The Scott court affirmed summary judgment for Chevron. The court set forth the applicable rules regarding an analysis of duty, which are substantively identical to those set forth above. (Scott, supra, 5 Cal.App.4th at pp. 515-516.) In analyzing foreseeability, the court acknowledged that “certainly it is foreseeable that a vehicle might leave a highway and strike a fixed object located on adjacent property.” (Id. at p. 516.) The court continued: “However, foreseeability is not commensurate with duty, and the mere placing of a fixed object next to a highway does not necessarily create an unreasonable risk of harm. [Citations.] The only evidence here that the rectifier presented any danger was the state’s decision to install a guardrail. [] While an argument could possibly be made that Chevron has a duty to protect the public from striking its rectifier, we see no justification for imposing a duty on Chevron to protect the public from cross-median accidents on a highway adjacent to their property.” (Ibid., fn. omitted.) Chevron’s connection to the accident, the court explained, was “too attenuated,” and the “motorist injured by the drunk driver is not the foreseeable victim of the actions of the property owner.” (Id. at pp. 516-517.) Finally, the court concluded that other factors bearing upon the issue of duty “weigh heavily in favor of finding no duty in this case.” (Id. at p. 517.)

Scott is inapposite. The Scott court did not hold that Chevron could not be held liable for injuries suffered by someone who hit its rectifier. Indeed, the court noted that “any concern Chevron might have had regarding persons striking the rectifier was probably alleviated when the state installed the guardrail. Once the guardrail was installed, it was not reasonably foreseeable that the rectifier would cause harm to the motoring public.” (Scott, supra, 5 Cal.App.4th at p. 517.) Here, of course, there was no guardrail placed in front of the light pole that would have rendered a collision with the pole unforeseeable.

Moreover, the Scott court determined, in essence, that although Chevron arguably had a duty to protect people from hitting the rectifier, the subsequent events of the state’s placement of the guardrail and a drunk driver hitting the guardrail then veering off into opposing traffic rendered the collision too attenuated from Chevron’s actions. (Scott, supra, 5 Cal.App.4th at pp. 516-517.) Here, the injured plaintiff, Laabs, was in the car that crashed into the light pole located immediately adjacent to the traveling lanes of the roadway. Her injuries are far more closely connected to the location of the light pole than is the death of the victim in Scott.

The Scott court itself made clear that its holding should not be read too broadly. In a footnote that is particularly instructive here, the court stated: “We do not mean to imply that a property owner is free to place an object next to a highway with no thought to the possible consequences. For example, property owners may be held liable if they . . . place a fixed object where it is reasonably foreseeable that persons traveling with reasonable care would deviate from the highway in the ordinary course of travel [citation].” (Scott, supra, 5 Cal.App.4th at p. 517, fn. 3.) Reading Scott in its entirety, it is clear that the unique circumstances presented in that case called for an exception to the general rule that a property owner placing a fixed object near a roadway owes a duty of care to persons traveling on the roadway. The present case does not call for a similar exception. As explained above, it is reasonably foreseeable (for purposes of the analysis of duty) that a vehicle involved in a collision with another car would “deviate from the highway” and collide with a light pole placed 18 inches from the curb.

E. The Closeness of the Connection Between SCE’s Conduct and the Injury Suffered

SCE further argues that it cannot be held liable because the locations of the light poles were chosen by the City of Victorville; thus there is no connection between their conduct and the injury suffered. Courts have repeatedly rejected similar arguments. In Norton v. City of Pomona, supra, 5 Cal.2d 54, SCE was sued when a motorist hit one of its light poles that was placed flush with the curb. The light pole was placed pursuant to a city ordinance that gave SCE “the right to select the place of location of its poles along the property side of curb lines and flush with said curb.” (Id. at p. 59.) SCE argued in that case that it could not be held liable because the pole was placed and “maintained under governmental authorization.” (Id. at p. 58.) The Supreme Court disagreed. “‘That the maintenance of the pole in the place and under the circumstances shown herein cannot be deemed a nuisance . . . for nothing which is done or maintained under the express authority of law can be deemed a nuisance. [Citations.] But while the erection and maintenance of the pole herein appear to have been authorized by ordinance, there still exists a liability on the part of [SCE] for any consequential injuries arising from its negligence in exercising its right and power granted to erect and maintain poles within the City of Pomona.’” (Id. at pp. 60-61.) In Gerberich v. Southern Calif. Edison Co., supra, 5 Cal.2d at page 52, the court rejected a similar argument, stating: “‘“If the company has a license from a city to construct its poles in the streets, they will not be declared a nuisance, but if they clearly appear to be improperly located thereon, and injury results therefrom, the company will be liable, notwithstanding that it has a license from the city to construct its poles in such places.” [Citation.]’” These authorities were followed in Schauf v. Southern Cal. Edison Co. (1966) 243 Cal.App.2d 450, which held: “The fact that a utility company may have lawfully installed a structure in a public right-of-way pursuant to a permit or a franchise does not excuse it from tort liability for injuries caused by the negligent exercise of the right and power to erect and maintain the structure.” (Id. at pp. 459-460.) SCE does not attempt to distinguish these authorities on this point and offers no authority in support of its position.

To the extent SCE’s control over the initial placement of the luminaire is of relevance, SCE did not demonstrate that no triable issue of fact exists as to its lack of control. It was undisputed that the luminaire was owned and maintained by SCE. Pursuant to the franchise agreement entered into between SCE and the City of Victorville, it was further undisputed that “[a]ll poles, wires, lights, and electrical apparatus installed by Company in furnishing service under [the franchise agreement], shall be placed as to work the least possible public and private inconvenience . . . .” (Italics added.) In achieving this end, there is nothing in the agreement indicating that SCE does not have input and control over the luminaire’s placement. And although a map showing the locations of light poles is purportedly attached to the agreement, no map has been provided to us. Nor is it clear from the agreement that, if such a map exists, it prescribes a certain distance from the curb beyond which poles may not be placed. Even if the final decision for placement of the luminaire was made by the City of Victorville and/or developer, it does not put to rest the issue of SCE’s input into the decision or establish that SCE was precluded from installing luminaires at other, safer locations within or outside of the street right of way. Thus, even if a public utility can avoid liability for a negligently placed light pole by claiming a government agency required a precise placement, there is insufficient evidence presented here to establish such a requirement. Simply stated, SCE failed to establish that no triable issue of fact exists as to its role and its exercise of control in determining the placement of the luminaire.

F. Remaining Factors

Of the remaining factors relevant to the question of duty, SCE briefly discusses only the factor concerning the burden to SCE of placing the light poles farther from the street. SCE states: “[T]he added costs and inconvenience of engineering poles to be placed a great distance from [the] curb itself becomes unreasonable. With distant placement of poles comes added costs for materials and engineering of longer mast arms to project light to the street they are designed to illuminate.” SCE does not, however, refer us to any evidence in the record regarding such added costs. Instead, they rely upon the deposition testimony of Laabs’s highway design expert, Anderson, for the assertion that Anderson “recognizes that more is involved with placing a pole farther from the curb.” In the referenced deposition testimony, Anderson merely acknowledges the obvious—that if light poles are placed so the base is farther from the curb, they would need to have a longer arm length to place the luminaires in the same position above the street. This evidence is insufficient to establish any meaningful additional burden to SCE of installing safer light poles.

On balance, and based on the evidence submitted, other factors relevant to the duty inquiry generally weigh in favor of finding a duty on the part of SCE. The high degree of certainty of serious injury or death resulting when a vehicle collides with a fixed concrete light pole cannot be reasonably disputed. This is especially true when the adjacent roadway is a thoroughfare where motorists commonly drive in excess of 62 miles per hour. According to Anderson, 60 percent of the people in an accident that involves hitting a light pole die as a result. He states the obvious: “The closer any hazard gets to the road, the more hazardous it is, and if [a light pole] was set back the ten feet, your chances of being hit are considerably less than they are if they’re [set back] 18 inches.” Here, there was 12 feet of space within which to place light poles. Thus, SCE was not as constrained as it would be in the typical urban setting where there may be only three or four feet of sidewalk within which to place a light pole. The same reasoning supports the policy of preventing future harm—the farther away light poles are placed, the less that vehicles will collide with them. There would also appear to us to be no negative consequence to the community of imposing such a duty; streets will be just as well lit because the arm that holds the luminaires above the street can be extended to compensate for the additional distance at the pole’s base. The factor of “moral blame” tilts in favor of finding a duty; although there is nothing inherently wrong with installing and maintaining street lights, some moral blame may be found in placing street lights attached to concrete poles close to the street when they could be placed up to 12 feet away from the traveling portion of the roadway. Finally, our record includes no evidence regarding the availability, cost, or prevalence of insurance arising from this duty. We cannot, therefore, evaluate this factor one way or the other.

G. Conclusion

We note that the present matter is on appeal following the grant of summary judgment in favor of SCE. The sole issue is whether the evidence submitted in support of and in opposition to the motion for summary judgment establishes that SCE did not owe a duty to Laabs as a matter of law. We believe that the evidence has not established the absence of a duty. At trial, there may be additional evidence bearing on the issue of duty. Our discussion is not intended to lay the issue of duty to rest as it relates to this matter. We merely hold that, based on the evidence presented, SCE has not established under these circumstances the absence of a duty of care to plaintiff as a matter of law.

V. DISPOSITION

The judgment is affirmed as to Edison and reversed as to SCE. The parties shall bear their own costs on appeal.

/s/ King

J.

I concur:

/s/ Miller

J.
Concurring and Dissenting Opinion by Hollenhorst, J.

I concur with the majority opinion affirming the trial court’s grant of summary judgment in favor of Edison International (Edison), but disagree with the majority opinion reversing the grant of summary judgment in favor of Southern California Edison Company (SCE). As SCE so eloquently observed, “This is a case in search of a viable defendant.”

I. FACTS AND PROCEDURAL BACKGROUND

On October 24, 2002, at approximately 2:00 p.m., Amanda Laabs (Plaintiff) suffered injuries resulting from a car accident on Ridgecrest Road where it intersects with Pebble Beach Drive. Ridgecrest Road is a four-lane north/south roadway. The southbound lanes are owned and controlled by the City of Victorville (City), while the northbound lanes are owned and controlled by the County of San Bernardino (County). Plaintiff was one of three passengers in a northbound car (1999 Porsche Carrera) driven by James Dimeo. Dimeo took the Porsche (his parents’ car) without permission to show his friends how fast the car could go. He reached a speed of 100 to 110 miles per hour.

The accident occurred when Dimeo’s car hit a westbound, left-turning car driven by Dorothy Specter. As a result of hitting Specter’s car, Dimeo’s car was forced across Ridgecrest Road’s southbound lanes, jumped the curb, slid along the sidewalk for some distance, and then hit a concrete light pole, causing the pole to break at the base. Dimeo was cited for driving under the influence of alcohol or drugs, unsafe speed, and failure to yield the right of way. Plaintiff lost both of her legs. The light pole was owned and maintained by SCE. Plaintiff sued SCE and Edison, among other parties, as a result of the injuries she incurred from the accident. Plaintiff alleged that her injuries were caused by the negligent installation and maintenance of the light pole close to the curb.

SCE and Edison moved for summary judgment on the grounds that “they owed no duty of care to [P]laintiff.” They argued that “although SCE owns and maintains the subject electrolier, it was installed per the [City’s] engineering specifications and the decisions regarding placement [were] left solely to that body.” Edison “had nothing to do with the installation of the pole and has no ownership interests in it.”

In support of the motion, SCE and Edison offered the declaration of Robert Binns (Binns), a supervisor in SCE’s street and outdoor lighting department. Binns stated that “SCE provides electrical service to the streetlights in the area where the incident occurred pursuant to a Master Agreement for Service and Street Lighting as between SCE and [City].” He further stated: “Although SCE owned and maintained the Electrolier it was the City and/or the developer of the area which made the decision with regards to the: 1) location of installation; 2) type of equipment to use; 3) mounting height; 4) type of light fixture; and 5) wattage (light output) required. SCE does not make the final decision with regards to placement of Electroliers [or] the type of facilities to be used. Typically, the City or developer requesting new street light facilities hires its own engineers, including street lighting engineers, to design the type of system required for the project. Once the plans and permits are secured, SCE’s planning department is contacted to co-ordinate the installation of the desired lighting as consistent with the pre-designed plans.” Attached to the declaration of Binns was a copy of “Agreement for Service for Street Lighting” (Agreement). In relevant part, the Agreement provides: “All installations shall be made at locations as shown on Map No. R-121 on file in the office of the City Clerk, which said plan was filed on October 20, 1966, in proceedings for the establishment of said street lighting, pursuant to Resolution of Intention No. 77-26.” No Map No. R-121 was attached.

Additionally, SCE and Edison offered the declaration of Y. M. “Ed” Nahabedian (Nahabedian), an independent consulting civil and traffic engineer. Between 1970 and 1985, Nahabedian was an area traffic engineer who was “responsible for overseeing traffic operational and safety issues on numerous freeways, expressways, conventional highways and local streets in Los Angeles, Orange and Ventura Counties.” His responsibilities included supervising and initiating investigations for, inter alia, street and safety lighting. He was retained by SCE and Edison as an expert. In that capacity, he opined that “the location and the placement of the subject Luminaire was reasonable and was in conformity with the luminaire construction industry’s practice in California.” Nahabedian further opined that because the placement of the luminaire conformed “with the requirements set forth in the State’s Traffic Manual and AASHTO[ ] Manual,” it “did not present a risk of injury to foreseeable motorists using due care, let alone a substantial risk.”

In formulating his opinion, Nahabedian reviewed many documents, including “sections of the Department of Transportation’s (CalTrans) Highway Design and Traffic Manuals and Standard Plans, ASSHTO . . . 2004 Edition of ‘A Policy on Geometric Design of Highways and Streets’ and ‘Roadside Design Guide.’” Based on his review of the CalTrans traffic manual, there was no horizontal setback placement of luminaire poles placed on paved sidewalks behind concrete curbs. Also, “review of AASHTO ‘A Policy on Geometric Design of Highways and Streets,’ 2004 edition . . . relative to placement of luminaire poles and utility poles states, ‘Where there are curbed sections, utilities should be located in the border areas between the curb and sidewalk at least 0.5 meters (1.5 feet) behind the face of the curb, and where practical, behind the sidewalk.’”

Nahabedian further stated: “During the time when I was employed by the Department of Transportation (CalTrans) in Traffic Operation Branch, I have designed and reviewed many intersection signal designs and safety lighting on State’s expressways and conventional highways. As a result of this experience I have become familiar with the operation and safety features of placement and location of signal standard poles, safety lighting poles and luminaire poles. [] Statewide, the standard practice in California (both on State level and local jurisdictions) is to place luminaire poles along roadways with pedestrian sidewalks behind concrete curbs from 18 inches to 30 inches, depending upon the width of the paved sidewalk. In general, a set-back of 18–24 inches is common placement in paved sidewalks less than 7 feet in width and set-back of 24–30 inches on paved sidewalks 8 feet or wider.”

In opposition to the motion for summary judgment of SCE and Edison, Plaintiff offered the declarations of John A. McGlade, the City’s engineer, Keith Friedman, an expert in reconstruction and occupant protection, Robert W. Crommelin, a professional traffic operations engineer, and Howard Anderson, a retired engineer. Plaintiff argued that “SCE was negligent in the placement of its light posts . . . .” According to Plaintiff, there was a conflict between the City and SCE with regards to “who placed the light post in a dangerous position . . . .” Plaintiff cited to the City’s claim that it “does not design, specify, suggest or approve any specification of a design, manufacture or process for the [luminaires] or the structures on which the [luminaires] are attached, installed or otherwise provided by [SCE].” However, this claim did not address the decision of where the luminaires are placed. The City did not claim that SCE was responsible for determining the location of the luminaires. Nonetheless, Plaintiff argued that SCE owed her a duty, which was breached, because “SCE should have known that placing light posts so close to the sidewalk could aggravate injuries resulting from car accidents on Ridgecrest . . . .”

In support of Plaintiff’s argument, McGlade noted the Agreement between SCE and the City and stated that the City “does not design, specify, suggest or approve any specification of a design, manufacture or process for the [luminaires] or the structures on which the [luminaires] are attached, installed or otherwise provided by [SCE].” However, McGlade did not claim that SCE was responsible for the location of the luminaires. Further, he did not deny that the City was responsible for the location of the luminaires.

Anderson stated that “the installation of lighting and luminaires supports, such as the one struck by [Dimeo] . . . [is] in direct contravention of highway safety standards.” He declared that “California regulations for traffic highway safety and construction require that any such lights and their lumina[ires] supports must be constructed to present the least possible hazards to out of control vehicles.” Furthermore, without any reference to any authority, he claimed that “[w]here lights are installed, lumina[ires] supports are required to be placed as far as possible from the roadway.” Thus, Anderson opined, “the approval of the design and installation of light supports along the southbound travel lanes of Ridgecrest Road was unreasonable.” However, in his deposition, Anderson acknowledged that CalTrans standards requiring placement of luminaires as far back as possible are for California highways. Although he opined that the placement of the luminaires on Ridgecrest violated CalTrans standards, he admitted there was no criminal violation.

After considering the argument of counsel in light of the evidence offered, the trial court granted SCE’s and Edison’s motion for summary judgment and entered judgment in their favor. Plaintiff appealed.

II. MAJORITY’S FLAWED PREMISE

In reversing the summary judgment in favor of SCE, the majority concludes that “triable issues exist as to the foreseeability of the general character of the event” (of a vehicle leaving the roadway and striking a fixed, concrete light pole). (Maj. opn., ante, at p. 18.) Implicit in such conclusion is the assumption that the public utility, in this case SCE, controlled the decision of the location of the light pole. However, there is no evidence in the record before this court that supports such assumption. Instead, both Plaintiff and the majority have misinterpreted the declaration of McGlade. McGlade declared that the light poles on Ridgecrest Road “are owned, installed, maintained, and controlled by [SCE].” He further stated that the City “does not design, specify, suggest or approve any specification of a design, manufacture or process for the [luminaires] or the structures on which the [luminaires] are attached, installed or otherwise provided by [SCE].” While McGlade’s declaration supports a finding that SCE owned, maintained, controlled, and installed the luminaire, it does not support any finding that SCE was responsible for determining the actual place where the luminaire would be located. Rather, the evidence offered in support of SCE’s motion clearly points out that SCE installed the luminaire per the map provided by the City.

Because no map was attached to the Agreement, the majority reasons that it is unclear as to whether the map prescribed a certain distance from the curb beyond which poles may be placed. (Maj. opn., ante, at p. 24.) Moreover, the majority opines that “[e]ven if the final decision for placement of the luminaire was made by the City of Victorville and/or developer, it does not put to rest the issue of SCE’s input into the decision or establish that SCE was precluded from installing luminaires at other, safer locations within or outside of the street right of way.” (Id. at p. 24.)

I disagree.

To begin with, the record before this court (along with common sense) dictates that placement of a light pole is not left to the discretion of a utility company. In order for a developer to develop land with homes, streets, etc., he/she/it must obtain the approval and permits from the local governmental entity (city or county). As Binns stated, “[a]lthough SCE owned and maintained the Electrolier it was the City and/or the developer of the area which made the decision with regards to the . . . location of installation . . . . SCE does not make the final decision with regards to placement of Electroliers [or] the type of facilities to be used. Typically, the City or developer requesting new street light facilities hires its own engineers, including street lighting engineers, to design the type of system required for the project. Once the plans and permits are secured, SCE’s planning department is contacted to co-ordinate the installation of the desired lighting as consistent with the pre-designed plans.” For the majority to assume or speculate that SCE had any control on the placement of the light pole defies the record, common sense, and logic.

Second, the fact that SCE owned, controlled, or maintained the luminaire is irrelevant. As Plaintiff argued at the trial level and on appeal, it was not the luminaire itself that caused her injuries; rather, it was the location of the luminaire at close proximity to the street.

Finally, SCE’s expert, Nahabedian, opined that “the location and the placement of the subject Luminaire was reasonable and was in conformity with the luminaire construction industry’s practice in California.” He further opined that because the placement of the luminaire conformed “with the requirements set forth in the State’s Traffic Manual and AASHTO Manual,” it “did not present a risk of injury to foreseeable motorists using due care, let alone a substantial risk.” Nahabedian further declared that the CalTrans traffic manual does not establish a horizontal setback placement of luminaire poles placed on paved sidewalks behind concrete curbs. Furthermore, review of AASHTO’s “‘A Policy on Geometric Design of Highways and Streets,’ 2004 edition, . . .” showed that, as for placement of luminaire poles “‘[w]here there are curbed sections, utilities should be located in the border areas between the curb and sidewalk at least 0.5 meters (1.5 feet) behind the face of the curb, and where practical, behind the sidewalk.’” Regarding intersection signal designs and safety lighting, “the standard practice in California (both on State level and local jurisdictions) is to place luminaire poles along roadways with pedestrian sidewalks behind concrete curbs from 18 inches to 30 inches, depending upon the width of the paved sidewalk. In general, a set-back of 18–24 inches is common placement in paved sidewalks less than 7 feet in width and set-back of 24–30 inches on paved sidewalks 8 feet or wider.”

In contrast, Plaintiff’s expert, Anderson, offered no support for his conclusion that the approval of the installation of the light pole was unreasonable. He cited no manuals, guidelines, etc. Instead, he merely asserted that “lumina[ires] supports are required to be placed as far as possible from the roadway.” He further asserted that placement of the light poles 18 inches from the curb line and on pedestrian sidewalk are “in direct violation of the clear roadside policy.” However, unsupported assertions are not evidence. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 463, fn. 2.)

Given the above, I disagree with the majority’s premise that the issue of SCE’s input into the decision of where to place the luminaire remains open. (Maj. opn., ante, at p. 24.) Clearly, the developer and/or the local government, acting in accordance with the requirements set forth in the state’s traffic manual and AASHTO’s manual, were responsible for such placement.

III. DUTY

From the majority’s flawed premise, it engages in a lengthy discussion of duty, concluding that “SCE has not established . . . the absence of a duty of care to plaintiff as a matter of law.” (Maj. opn., ante, at p. 27, fn. omitted.)

Under the facts in this case, I disagree. By failing to conclude that SCE owed no duty to Plaintiff as a matter of law, the majority leaves open the door for a finding that SCE’s legal duty to Plaintiff included a duty to disregard the direction of the City’s engineers, the state’s traffic manual or AASHTO’s manual, when placing its light poles. Moreover, SCE may now be under a legal duty to provide a “safe landing” for an intoxicated, speeding driver who is not using the road in accordance with the purpose for which it was designed. The circumstances of this case do not warrant leaving such door open. Accordingly, I would affirm the trial court’s grant of summary judgment for SCE.

The majority cites case law which states that a public utility owes a general duty to motorists to use reasonable care when placing light poles adjacent to roadways, namely, Gerberich v. Southern Calif. Edison Co. (1935) 5 Cal.2d 46, 53 (Gerberich), Norton v. City of Pomona (1935) 5 Cal.2d 54, 60-61 (Norton), George v. City of Los Angeles (1938) 11 Cal.2d 303, 310-313 (George), and White v. Southern Cal. Edison Co. (1994) 25 Cal.App.4th 442, 447-448 (White). (Maj opn., ante, at pp. 12-13.) None of these cases involve the same factual scenario presented in this case. More specifically, Gerberich, Norton, and George each involved a dangerous condition in the street. Nonetheless, the majority discredits the distinguishing factors as irrelevant to this court’s determination of whether SCE had a duty to take reasonable precautions to protect against the risk that vehicles traveling on adjacent roadways will collide with its light poles. (Maj. opn., ante, at pp. 18, 20-21, fn. 6.) According to the majority, any distinguishing factors are relevant only to a fact finder’s decision, not ours, because this court is concerned only with the “general character of the event.” (Id. at p. 18.)

I disagree.

“‘An action in negligence requires a showing that the defendant owed the plaintiff a legal duty . . . .’ [Citation.] ‘Whether a “duty” exists in a particular case is a question of law. “Duty” is merely a conclusory expression used when the sum total of policy considerations lead a court to say that the particular plaintiff is entitled to protection.’ [Citation.] Duty is an allocation of risk determined by balancing the foreseeability of harm, in light of all of the circumstances, against the burden to be imposed. [Citation.] In determining the existence of duty, ‘. . . the major [considerations] are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ [Citation.]” (White v. Southern Cal. Edison Co., supra, 25 Cal.App.4th at p. 447; see also Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.); Rowland v. Christian (1968) 69 Cal.2d 108, 112-113 (Rowland).)

Recognizing that this state has found certain situations where a public utility owes a general duty to the public (specifically, as noted by the case law above, placing utility poles adjacent to roadways), I note that this state has also found exceptions to the general duty rule. This case is ripe for such exception. (Scott, supra, 5 Cal.App.4th at p. 518.)

In Scott, a drunk driver struck a guardrail, crossed the center median, and struck the plaintiffs’ car. (Scott, supra, 5 Cal.App.4th at p. 513.) The plaintiffs sued Chevron U.S.A., the owner of the property adjacent to the guardrail, because it had placed a piece of fixed electrical equipment on the property and the state later placed a guardrail between the shoulder of the road and the equipment. (Id. at p. 514.) The issue on appeal was whether Chevron had a “duty to exercise care in the location and maintenance of its [equipment] in order to avoid exposing persons on the adjacent highway to an unreasonable risk of harm.” (Id. at p. 515.)

Regarding duty, the Scott court stated: “Duty is not an immutable fact of nature; it is ‘only a shorthand expression of the sum total of public policy considerations which lead the law to protect a particular plaintiff from harm. [Citations.]’ [Citation.] In order to determine the boundaries of the duty to prevent injury to others in any given case, we consider several factors, including the foreseeability of the harm, the degree of certainty of injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with the resulting liability for breach, and the availability, cost, and prevalence of insurance. [Citations.]” (Scott, supra, 5 Cal.App.4th at p. 515.)

Recognizing that the foreseeability of harm has become the chief factor in duty analysis, the Scott court applied the Rowland factors and concluded that Chevron owed no duty to the plaintiffs as a matter of law. (Scott, supra, 5 Cal.App.4th at p. 518.) Acknowledging it is foreseeable that a vehicle might leave the road and strike a fixed object placed on adjacent property, the Scott court stated that “forseeability is not commensurate with duty, and the mere placing of a fixed object next to a highway does not necessarily create an unreasonable risk of harm. [Citations.]” (Id. at p. 516, fn. omitted.) The court went on to say that “other Rowland factors similarly weigh heavily in favor of finding no duty in this case.” (Id. at p. 517.) Specifically, the court noted that “there is nothing inherently wrong with placing a fixed object on one’s property. While future harm might be prevented by holding property owners responsible whenever a fixed object on their property contributes to injuries suffered on adjacent highways, we doubt that society is willing to so restrict property rights. Imposing liability in these circumstances would effectively require landowners to dedicate a portion of their property as a safety zone to protect errant drivers. [Citation.]” (Id. at p. 517, fn. omitted.) Our colleagues in the First District, Division One, aptly noted that such decision should be left to the Legislature. (Ibid.)

Reading Scott in its entirety, the majority concludes “it is clear that the unique circumstances presented in that case called for an exception to the general rule that a property owner placing a fixed object near a roadway owes a duty of care to persons traveling on the roadway. The present case does not call for a similar exception.” (Maj opn., ante, at pp. 21-22.)

I disagree.

As noted in a footnote in the majority opinion, numerous cases have discussed the issue of a utility company’s liability when a vehicle leaves the roadway and hits one of its utility poles. Of those cases cited, the following are most significant: Bernier v. Boston Edison Co. (1980) 380 Mass. 372 [403 N.E.2d 391] (Bernier); Oram v. New Jersey Bell Telephone Company (1975) 132 N.J.Super. 491 [334 A.2d 343] (Oram); Coates v. Southern Md. Electric (1999) 354 Md. 499 [731 A.2d 931] (Coates); and Rothwell v. West Cent. Elec. Co-op, Inc. (Mo.Ct.App. 1992) 845 S.W.2d 42 (Rothwell).)

In Bernier, supra, 403 N.E.2d 391, two pedestrians were injured when a car ran into a light pole, causing it to fall. (Id. at pp. 393-394.) In considering the utility company’s possible liability, the appellate court noted that the company was the primary designer of the utility pole, the company required that the pole be placed 12 inches from the curbing, and the company did not have the poles tested to determine impact resistance. (Id. at pp. 395-396.) Accordingly, the court concluded that a jury could find negligence of design and maintenance. (Id. at p. 398.) In contrast, here, SCE installed its light poles at the location determined by engineers employed by the City or developer in compliance with the state’s traffic manual and the AASHTO manual.

In Oram, supra, 334 A.2d 343, passengers were injured when their car collided with a telephone pole located two feet from the travelled portion of a road. (Id. at p. 344.) The car was on a four-lane highway when another vehicle forced it off the road. The plaintiffs claimed the utility company was negligent in placing its pole two feet from the traveled portion of the road where there was no shoulder or curb. (Ibid.) The trial court disagreed and the appellate court affirmed. The court concluded that the placement of the pole was not the proximate cause of the injury. (Id. at p. 345.) Furthermore, the court stated that “[n]o telegraph or telephone company may erect utility poles upon, along, over or under any public road, . . . without first obtaining permission . . . from the governing body of the municipality in which it is to be located (citation).” (Ibid.) Thus, the court concluded that a utility company is not a “free agent in the placement of its . . . poles, . . . but must conform to the dictates of a local governing body . . . .” (Ibid.) Such is the case before this court. SCE is not a free agent in placement of its light pole. The location of light poles along roadways is an important decision which, according to the record before this court, is determined by engineers employed by the City or developer in compliance with the accepted guidelines such as CalTrans Highway Design and Traffic Manuals and Standard Plans, and ASSHTO manuals, including the 2004 edition of “A Policy on Geometric Design of Highways and Streets” and the “Roadside Design Guide.” According to expert testimony, the light pole in question here conformed with the requirements stated in these manuals.

In Coates, supra, 731 A.2d 931, the plaintiffs were injured when their vehicle slid out of control and hit a utility pole. (Id, at p. 933.) Reviewing Maryland’s case law regarding the issue of a utility company’s liability when a pole is hit, the court noted that liability was found “only when (1) the utility chose the location of the pole, free from governmental direction, and (2) the pole created a danger to persons while on the traveled portion of the road.” (Id. at p. 938.) As for outside of Maryland, the court observed: “Although some of the cases take somewhat doctrinaire positions, either as to foreseeability, proximate cause, or, as in New York and New Jersey, on strict public policy grounds, most of the courts, in their recent decision, have adopted a more flexible approach.” (Id. at p. 943.) The court agreed with that approach, concluding: (1) a utility company has a duty not to endanger those traveling on the roadway set aside for lawful travel; (2) if a governmental body approved the placement of a utility pole, the company has complied with any duty owed to those on the road; (3) a utility company may anticipate that those using the road will do so in a lawful and reasonable manner; and (4) a utility company has no duty to make any massive engineering inspection of all of its existing poles. (Id. at pp. 944-945.) Thus, summary judgment was affirmed in favor of the utility company on the grounds that the company “had no duty to anticipate that a vehicle traveling in a posted 35 mile per hour zone would go so out of control as to spin across the oncoming lane and strike a pole that was at least 14 feet from the edge of the lane in which the vehicle was traveling.” (Id. at p. 945.)

In Rothwell, supra, 845 S.W.2d 42, a driver was killed after he lost control of his car, crossed to the other side of the road, hit an electrical pole, and a fallen line electrocuted him. (Id. at pp. 42-43.) Summary judgment for the utility company was affirmed on the grounds that it was “not reasonably foreseeable that someone would veer across the center lane, into an embankment and then hit a pole some 8 to 11 feet away from the other side of the road.” (Id. at p. 44.)

Moreover, in Armand v. Louisiana Power & Light Co. (1986) 482 So.2d 802 (Armand), a driver was rendered a quadriplegic after her car went into a spin and hit a utility pole. The driver had a blood alcohol content of .30 percent. (Id. at p. 803.) Judgment against the utility company was reversed with the appellate court holding that the “location and design of defendant’s transmission pole was not the cause-in-fact of the accident.” (Id. at p. 804.) The court found that the utility company had “no obligation to guard against rare exigencies such as an out of control vehicle leaving a traveled roadway.” (Ibid.) The same reasoning used in Coates, Rothwell, and Armand applies to the facts of this case.

Again, I note “[t]he existence and scope of a defendant’s duty is a question of law for the court’s resolution. [Citations.]” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 412.) Foreseeability is a significant factor in determining the existence of a legal duty, as well as its scope. (Id. at p. 415.) “[T]he scope of the duty is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed. [Citation.] “‘“[I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.” [Citation.]’ [Citation.]” (Ann M., supra, 6 Cal.4th at pp. 678-679.)

Did SCE owe Plaintiff a duty to take advance precautions to protect her from the harm she suffered as a result of the car accident caused by Dimeo? The answer is “no,” because the accident could not have been reasonably foreseen.

As the above cases demonstrate, car accidents involving utility poles located along roadways are a possibility. However, this fact does not create a “duty” on the part of a defendant to ensure a “safe landing.” If it did, the defendant would be required to eliminate all possibilities of risk. This is simply not possible. “All possibilities of risk even if ‘foreseeable’ in the abstract as possibilities cannot be eliminated.” (Whitton v. State of California (1979) 98 Cal.App.3d 235, 244 (Whitton).) All that a defendant is required to do is to protect a plaintiff from all reasonably foreseeable risks. (Bryant v. Glastetter (1995) 32 Cal.App.4th 770, 778 [“‘In order to limit the otherwise potentially infinite liability which would follow every negligent act, the law of torts holds defendant amenable only for injuries to others which to defendant at the time were reasonably foreseeable.’”].) To expect that most people will drive properly is not negligence. Thus, the chance that an unusual accident will occur is not the test of foreseeability.

As SCE points out, “[t]he general scenarios in which an errant northbound vehicle could leave Ridgecrest Road, cross all opposing lanes of travel and strike a stationary object on the other side of the road are virtually endless. It would be impossible to guard against all such eventualities. Consider the random speeds, trajectories and chain of events (including ricocheting off of other vehicles and structures) that would make planning against these situations impossible. It is enough that in planning the streetlights on the south side of Ridgecrest to be safe for adjacent southbound travelers the designers considered that relation of the poles to southbound traffic. In this regard, the planners (City of Victorville) apparently did a good job as there is no evidence that placement of the Streetlight caused any injuries to southbound traffic at any time since its installation in 1993.” Clearly, there are some risks that are not reasonably foreseeable. Thus, there is no duty. Such is the case before this court.

Nonetheless, the majority maintains that a “vehicle leaving a roadway where vehicle speeds commonly reach 62 miles per hour or more and striking a fixed concrete light pole placed 18 inches away from the curb” is “easily foreseeable for purposes of an analysis of duty . . . .” (Maj opn., ante, at p. 18.) However, “[t]his is not the foreseeability upon which the law of negligence is based. The conduct of [SCE] was not the cause-in-fact or the substantial factor in law in bringing about the harm to [P]laintiff. When the law says a person substantially contributes to the injury, the law is dealing with responsibility based on reasonable expectations and a common-sense approach to fault not physics. [Citations.] Therefore, even if the likelihood of [a speeding car losing control and hitting a light pole] . . . can be calculated in terms of mathematical probabilities, such mathematic computation is immaterial.” (Whitton, supra, 98 Cal.App.3d at p. 243.)

More importantly, the facts of this case do not warrant treating it as simply a “vehicle leaving a roadway . . . and striking a fixed concrete light pole placed 18 inches away from the curb.” (Maj opn., ante, at p. 18.) Dimeo’s conduct was criminal. He was under the influence of drugs or alcohol and he was driving in excess of 100 miles per hour. He was using the road as a racetrack to test the speed of his parents’ Porsche. When he hit another car, the Porsche was forced across three 12-foot-wide lanes (36 feet) and over the eight-inch high curb, where the car continued to skid along the curb until it hit the light pole. Although Dimeo was driving northbound, his vehicle hit a light pole located on the southbound side of the road. Such conduct was not a natural or typical consequence of the placement of a light pole on the side of the road nor was the foreseeability of the likelihood of that conduct one of the factors contributing to the negligent character of SCE’s conduct.

Although Plaintiff’s expert claimed the light pole should have been placed as far away from the road as possible (in this case, 12 feet), the evidence shows that Dimeo was traveling at approximately 74 miles per hour at the point of impact. Even if the light pole had been placed 11 feet further away from the road, as suggested by Plaintiff’s expert, given the speed of Dimeo’s car the added distance would have only delayed the inevitable crash by less than one second. Moreover, Dimeo’s car traveled across all lanes of traffic before hitting a light pole on the west side of the road. As SCE posits, “How do we then account for southbound driver[s] who become involved in similar accidents which veer off the roadway, jump the west curb and travel the same distance as the Plaintiff? Wouldn’t the so-called twelve-foot safe distance now be unsafe given the fact a southbound traveler, traveling the same distance as the Plaintiff, would have struck the very pole Plaintiff’s expert now opines was a safe distance?”

To impose the duty on SCE, or any other entity, to ensure a “safe landing” for all, would create a heavy burden. While the majority finds the evidence “insufficient to establish any meaningful additional burden to SCE of installing safer light poles” (Maj. opn., ante, at p. 25), I find the testimony of Plaintiff’s expert, Anderson, coupled with common sense, sufficient evidence of such burden. Anderson testified that the light pole should have been placed as far back (here, 12 feet) as possible. Furthermore, he testified that the arm of the light pole in this case looked to be about eight to 10 feet. If the pole is placed further back, Anderson testified that the arm would need to be 12 feet plus the additional width of the lane, or “20, 25–20 feet mainly is common.” Common sense dictates that if the arm must be 12 feet longer than it currently is, the cost will increase. Furthermore, SCE will not have to relocate just this light pole, it will have to relocate all of the light poles. Such task would be quite burdensome when considering the number of light poles in the City, the County, and throughout the state. (Coates, supra, 731 A.2d 931, 944 [“To make liability in every accident a jury question would, we expect (1) quickly remove the availability of affordable liability insurance for utilities, and (2) effectively force them to move hundreds, if not thousands, of poles, at enormous cost and inconvenience to them and to their customers and, even then, without absolute assurance of safety.”].)

What the majority is proposing is a nightmare. SCE is not in the business of researching and studying the best placement of utility poles. Such business is left to the proper governmental agencies. However, according to the majority opinion, no longer will a utility company be able to rely on City and County engineers working on behalf of the governmental agencies, in compliance with government sanctioned highway and safety engineering studies and manuals, to direct the location of utility poles. Rather, the utility company will have to hire its own engineers. However, even if the company bears the burden and expense of hiring its own engineers, there is no assurance that it will avoid liability because clearly the use of the accepted standards (CalTrans Highway Design and Traffic Manuals and Standard Plans, and ASSHTO manuals, including the 2004 edition of “A Policy on Geometric Design of Highways and Streets” and the “Roadside Design Guide” fail to provide a “safe landing” for all!

IV. PUBLIC POLICY

Foreseeability is not the only test in our determination of whether SCE owed a duty to Plaintiff. We also employ public policy considerations. If, as the majority proposes, we cannot state that SCE had no duty, as a matter of law, “to . . . install[] safer light poles” (Maj. opn., ante, at p. 25), and if it is a question of fact for the jury to decide, then we must consider the implications of such proposition. Should there be a “safe landing” on the side of every road? If so, what will it cost?

Beginning with the instant case, was the fact that the light pole was placed in the exact pathway of Dimeo’s car the cause-in-fact of the accident? Considering the distance Dimeo’s vehicle had already traveled before hitting the light pole, there is no evidence to suggest that placing the light pole further back would have made a difference. What if there had been a tree in the same place as the light pole? What about a parked car, or, a brick mailbox, or, a fire hydrant? “Carried to its logical conclusion, [the majority’s proposition] would require a landowner to remove every tree, fence, post, mailbox or name sign located on his property in the vicinity of the highway, or permit them to remain, subject to possible liability. . . . [] Moreover, such a rule would result in limiting the owner’s use of that portion of his property which abuts the road, and would be equivalent to a taking of private property for a public use without just compensation, in violation of our State Constitution (art. I, § 7, subd. [a]).” (Hayes v. Malkan (1970) 26 N.Y.2d 295 [258 N.E.2d 695, 696].)

What would it cost to relocate every light pole, utility pole, or stop light pole to as far away from the road as possible? Who should bear this cost? Are accidents like the one before this court so common that the benefit of imposing a duty to protect motorists involved in such accidents outweighs the burden of relocating all fixed objects along the road? More importantly, at what point should we prohibit the placement of any fixed object on the side of the road?

Again, recognizing that accidents involving fixed objects on the sides of roads are a possibility, we must consider what common sense dictates. Ideally, if a road is designed to attain optimal roadside safety, it would look like the landing strip at an airport. However, this is not practical. Our roads are, and must be, designed to accommodate the needs of the community (including motorists) while considering the rights of adjacent landowners. As such, guidelines have been established (AASHTO Roadside Design Guide, etc., ante) so that necessary fixed objects (lights, warning signs, etc.) can be placed in close proximity to the traveled portion of the road without hindering motorists who are using the road. Nonetheless, even with the use of these guidelines, there is no way to ensure a “safe landing” for all. Therefore, it is unreasonable for a motorist to expect that upon the loss of control over his or her vehicle, whatever lies on the other side of the curb will provide a safe landing.

For the above reasons, I conclude the trial court properly granted summary judgment in favor of SCE. Dimeo’s conduct (test driving his parents’ Porsche at a speed in excess of 100 miles per hour, hitting another vehicle, losing control, crossing over three 12-foot-wide lanes of traffic, jumping the eight-inch concrete curb, skidding down the sidewalk, and hitting a light pole several feet from the lane in which the motorist was traveling) was not a natural or typical consequence of the placement of a light pole on the side of the road. Nor was the foreseeability of the likelihood of his conduct one of the factors contributing to the negligent character of SCE’s conduct. Accordingly, I would hold that, as a matter of law, SCE owed no duty to Plaintiff.

V. CONCLUSION

Here, I do not begin with the assumption that SCE controlled the decision on where to place the light pole. More importantly, I conclude there is no duty to provide a

“safe landing” for all motorists. It is unreasonable to expect SCE to anticipate and guard

against the accident that occurred in this case. Accordingly, I would affirm the judgment in its entirety.

For the above reasons, I concur only with the majority opinion affirming the trial court’s grant of summary judgment in favor of Edison.

HOLLENHORST

Acting P. J.

Filed 7/20/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

EDUVIGIS DIAZ,

Plaintiff and Appellant,

v.

LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY et al.,

Defendants and Respondents.

B206259

(Los Angeles County

Super. Ct. No. LC075998)

APPEAL from a judgment of the Superior Court of Los Angeles County, Stanley M. Weisberg, Judge. Reversed and remanded.

Marlon M. Alo for Plaintiff and Appellant.

O’Reilly & McDermott and Paul O’Reilly; Greines, Martin, Stein & Richland, Martin Stein and Carolyn Oill for Defendants and Respondents Los Angeles County Metropolitan Transportation Authority and Omar Forero.

_________________________

Eduvigis Diaz appeals from the judgment entered in this personal injury action after a jury found the Los Angeles County Metropolitan Transportation Authority (MTA) and its employee, Omar Forero, were not negligent in connection with injuries Diaz sustained when an MTA bus in which she was a passenger collided with a car stopped in front of it. Diaz contends the court erred in refusing to instruct the jury on principles of res ipsa loquitur. Because MTA is a common carrier and substantial evidence supported the conclusion Diaz’s injury was the result of MTA’s operation of the bus, a res ipsa loquitur instruction should have been given. Accordingly, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On November 21, 2005 Diaz was a passenger on an MTA bus driven by Forero. As the bus approached the intersection of Van Nuys Boulevard and Roscoe Boulevard, it braked suddenly, but still crashed into the back of the car driven by Cindy Artero. In the accident Diaz, then 79 years old, fell off her seat and hit her head, sustaining injuries.

Diaz sued MTA and Forero claiming her injuries were caused by Forero’s negligence. She alleged Forero had intended to proceed through the intersection and was not prepared to stop when Artero stopped in front of him. MTA and Forero’s theory at trial was that Artero had moved from the right-turn lane into his lane just before the intersection and then had stopped suddenly when the traffic light turned yellow, forcing Forero to brake. MTA and Forero asserted at trial Forero had acted reasonably and done everything right but was unable to avoid hitting Artero’s car under the circumstances.

The trial court refused Diaz’s request to instruct the jury the accident itself created a presumption of Forero’s negligence, shifting the burden to MTA and Forero to demonstrate they were not negligent. In a special verdict form the jury found MTA and Forero not negligent. The trial court denied Diaz’s motions for a new trial and for judgment notwithstanding the verdict.

DISCUSSION

1. The Trial Court Erred in Refusing To Instruct the Jury on Principles of Res Ipsa Loquitur

A res ipsa loquitur instruction, which allows the jury to presume negligence and shifts the burden to the defendant to show he or she was not negligent, is warranted only when, among other things, there is substantial evidence from which a jury could reasonably conclude the accident could not have happened at all but for the defendant’s negligence. (Zentz v. Coca Cola Bottling Co. (1952) 39 Cal.2d 436, 442-443 [“[a]ll of the cases hold, in effect, that it must appear, either as a matter of common experience or from the evidence in the case, that the accident is of a type which probably would not happen unless someone was negligent”]; accord, Gradus v. Hanson Aviation, Inc. (1984) 158 Cal.App.3d 1038, 1055-1056.) “Stated less mechanically, a plaintiff suing in a personal injury action is entitled to the benefit of res ipsa loquitur when: ‘the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.’” (Rimmele v. Northridge Hospital Foundation (1975) 46 Cal.App.3d 123, 129.)

In Hardin v. San Jose City Lines, Inc. (1953) 41 Cal.2d 432 (Hardin) the Supreme Court held the doctrine of res ipsa loquitur applies when a passenger on a common carrier, through no fault of his or her own, is injured in connection with the operation of the carrier’s vehicle. (See id. at p. 436 [it is “well settled” that “an inference of negligence based on res ipsa loquitur arises in cases where a passenger on a common carrier is injured as the result of the operation of the vehicle”]; accord, Irwin v. Pacific Southwest Airlines (1982) 133 Cal.App.3d 709, 716; Bezera v. Associated Oil Co. (1931) 117 Cal.App. 139, 142.) Twenty years earlier, in Smith v. O’Donnell (1932) 215 Cal. 714, the Court observed the doctrine of res ipsa loquitur “has been most frequently applied in common carrier cases where injury has occurred to a passenger.” (Id. at p. 723.) The Court explained, “‘The reason for the application of the doctrine in such cases appears to be practically as stated in this quotation, viz.: that in view of the very high degree of care essential under the law on the part of a carrier of persons toward those who are its passengers, such a collision would not happen in the ordinary course of events if the carrier exercised such care, and that ordinarily when such an accident occurs, it is due to failure on the part of the person operating the car to use the proper degree of care in so operating it, or in other words, to “‘the manner in which the defendant used or directed the instrumentality under its control.”’” (Ibid.; see generally Rest.2d Torts, § 328D, com. b., pp. 157-158 [res ipsa loquitur doctrine most frequently applied “in actions by passengers against carriers” when injury results from carrier’s operation of vehicle].)

MTA and Forero contend, although it is well established that common carriers are held to the highest standard of care in operating their vehicles (see, e.g., Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785 [common carriers are held to a standard of care requiring them “to do all that human care, vigilance, and foresight reasonably can do under the circumstances”]; Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1507), it is equally well established they are not insurers of their passengers’ safety. (Lopez, at p. 785; Squaw Valley, at p. 1507.) Contrary to MTA and Forero’s suggestion, an instruction on res ipsa loquitur is not tantamount to making the common carrier an insurer. The presumption created by res ipsa loquitur is an evidentiary one; it may be rebutted by the defendant with evidence the accident was the fault of a third party, not the defendant. (See Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 825 [describing evidentiary presumption of res ipsa loquitur doctrine].) Application of res ipsa loquitur under circumstances involving the operation of a common carrier is simply an acknowledgment “the carrier is in a better position to explain the cause of the movement” of the vehicle than the passenger for hire. (Middleton v. California St. Cable Ry. Co. (1946) 73 Cal.App.2d 641, 645.)

MTA and Forero also argue the instruction was not warranted in this case because, unlike the circumstances in Hardin, supra, 41 Cal.2d 432, which involved the sudden stop of a city bus for “no apparent reason,” a collision with a third party is not the type of accident that, more probably than not, does not occur absent the common carrier’s negligence. However, appellate courts have long held the doctrine applicable to actions involving collisions between a common carrier and a third party in which the carrier claims the accident is the result of the third party’s negligence, provided there is substantial evidence to support the passenger’s position the accident resulted from the carrier’s operation of its vehicle. (See, e.g., Rogers v. Los Angeles Transit Lines (1955) 45 Cal.2d 414, 418 [res ipsa loquitur doctrine “clearly applicable” to bus passenger who was injured when bus collided with truck]; St. Clair v. McAlister (1932) 216 Cal. 95, 98 [plaintiff who was injured when bus in which she was passenger collided with motor vehicle entitled to invoke doctrine of res ipsa loquitur]; Irwin v. Pacific Southwest Airlines, supra, 133 Cal.App.3d at p. 716 [res ipsa loquitur instruction proper in case involving collision of common carrier airplane with private airplane]; Bezera v. Associated Oil Co., supra, 117 Cal.App. at p. 142 [res ipsa loquitur instruction proper in wrongful death case involving passenger in taxi cab who died when the taxi cab collided with an oil truck]; cf. Mercer v. Perez (1968) 68 Cal.2d 104, 126 [plaintiff in vehicle that was stationary when hit from behind entitled to res ipsa loquitur instruction].)

In sum, that MTA and Forero blame a third party for the accident does not negate the applicability of the res ipsa loquitur instruction in this case involving injuries sustained by a passenger of a common carrier in connection with the operation of the carrier’s vehicle. The court erred in refusing to give a res ipsa loquitur instruction.

2. The Court’s Instructional Error Was Prejudicial

A judgment is not subject to reversible for instructional error unless it can be shown the error resulted in a miscarriage of justice. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580 [judgment reversible for instructional error when error results in miscarriage of justice]; Viner v. Sweet (2004) 117 Cal.App.4th 1218, 1226 [instructional error not reversible unless appellant shows a reasonable probability he or she would have received a more favorable result in absence of error].)

Here, the question of negligence was a close one. Artero and Forero offered markedly different accounts of the accident and who was at fault. The party benefitting from the presumption of negligence thus enjoyed a critical advantage at trial. Under such circumstances, it cannot be said the failure to give a res ipsa loquitur instruction was harmless. (See Bedford v. Re (1973) 9 Cal.3d 593, 601 [when question of negligence is close and res ipsa loquitur instruction is warranted,“it cannot be said that the trial court’s failure to give a res ipsa loquitur instruction was harmless”]; Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 432 [where it is reasonably probable that, had res ipsa loquitur instruction been given, plaintiff would have prevailed on the question of negligence, failure to give the instruction is reversible error].)

DISPOSITION

The judgment is reversed, and the matter is remanded for further proceedings not inconsistent with this opinion. Diaz is to recover her costs on appeal.

PERLUSS, P. J.

We concur:

ZELON, J. JACKSON, J.

Filed 7/20/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )

)

Plaintiff and Respondent, )

) S027264

v. )

)

JACK WAYNE FRIEND, )

) Alameda County

Defendant and Appellant. ) Super. Ct. No. 81254 A

)

On January 12, 1989, an Alameda County jury found defendant Jack Wayne Friend guilty of first degree murder and robbery. (Pen. Code, §§ 187, 189, 211.) The jury also found true that he had inflicted great bodily injury in connection with the robbery and that he had personally used a knife in committing both crimes. (§§ 12022.7, subd. (a), 12022, subd. (b).) The jury was unable to reach a verdict on the robbery-murder special-circumstance allegation. (§ 190.2, subd. (A)(17)(i).) After a retrial on the robbery-murder special-circumstance allegation, a new jury found it true on March 20, 1992. After the penalty phase, the jury returned a verdict of death on April 17, 1992. The trial court denied defendant’s motion for new trial and modification of the penalty (§ 190.4, subd. (e)), and sentenced him to death. This appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).) We will affirm the judgment in full.

Introduction

Around midnight on Labor Day 1984, Herbert Pierucci, a bartender at the Golden West Bar in downtown Oakland, was fatally stabbed and cash was stolen from the bar. Defendant acknowledged at trial that he and an acquaintance, Gene Hollowhornbear, were the last two people in the bar that night, and the last ones to see the victim before the robbery.

The prosecution’s main witness was Kevin Kelley, who had been with defendant and Hollowhornbear at the bar earlier in the evening but who left before the crime. Kelley testified that he saw defendant and Hollowhornbear emerge from the bar with defendant holding a knife, and that defendant later admitted to Kelley that he had committed the robbery murder. Another prosecution witness, Thomas Moody, also testified that defendant had admitted he committed the robbery murder.

The defense contested Kelley’s credibility, especially whether Kelley could have seen defendant from the distance at which he claimed to be standing. Defendant took the stand in his own defense and testified that Hollowhornbear and the victim had gotten into a fight, that defendant had tried to break it up, but Hollowhornbear pulled a knife and fatally stabbed the victim.

I. Facts

A. First Trial: Guilt Phase

1. The Prosecution’s Case

a. Discovery of the Victim and Nature of the Wounds

The victim, Herbert Pierucci, worked as a bartender at the Golden West Bar, which was located at 368 12th Street between Franklin and Webster Streets in downtown Oakland. Around midnight on Labor Day, September 3, 1984, two acquaintances of the victim discovered him alone, lying in a pool of blood at the back of the bar. The front cash register was open, the cash drawer was pulled out, and its contents, later estimated to be approximately $300, were missing. Four bottles of liquor were also gone.

A police officer summoned to the scene found the victim semiconscious with a four-inch gash to his neck and a three-inch gash to his wrist. Asked what had happened, Pierucci answered that he had been stabbed. The officer asked, “how many people were there?” and Pierucci held up two fingers in response.

Pierucci was taken to the hospital, where emergency surgery was performed, but he died four days later from loss of blood. The surgeon who operated on Pierucci testified that, in one of the front wounds, the knife completely severed the sternomastoid muscle in the neck and came to rest on the cervical spine. Three wounds at the back of the neck completely severed the trapezius muscle. The surgeon testified that a fair amount of pressure was required to inflict such wounds. The pathologist testified that there were at least six distinct sharp cutting wounds to the victim’s neck and defensive wounds to his left arm and right and left hands.

b. Testimony of Kevin Kelley

On September 3, 1984, Kevin Kelley, defendant, and Thomas Moody were among a group of homeless alcoholics who were allowed by owner Dina Mladinich to stay at the Thomas Janitorial Supply Warehouse (the warehouse) on the corner of Ninth and Alice Streets. About 10 p.m., Kelley and defendant left the warehouse and headed towards downtown Oakland. Defendant wore a black nylon “security-type” jacket, blue jeans, and black shoes. They went in search of Mladinich’s van, which Moody had borrowed. On the way, they met Gene Hollowhornbear, who was carrying a black nylon gym bag that was half full of clothes. The group discussed getting a six-pack of beer at a nearby convenience store, the Oasis, but defendant did not want to go there because he had gotten into trouble there in the past. Instead, they decided to go to the Golden West Bar, where they initially sat in the front section of the bar and defendant ordered a round of beers.

The group moved to the rear of the bar and played pool. Kelley and Hollowhornbear drank two more beers, and defendant drank three more. Kelley went to the bathroom and defendant followed him in. Defendant proposed to Kelley that they rob the bar by hitting the bartender with a bottle, stating it would be an easy three-on-one robbery. Defendant also mentioned using one of defendant’s knives for the robbery. Earlier at the bar, Kelley had noticed that defendant had two knife sheaths on the back of his belt. Kelley recognized one of the knives as a Buck-type knife that Kelley had sold to defendant about three weeks earlier. Defendant’s other knife looked like a Benchmark-type knife and had the word “raccoon” engraved on it.

Kelley said he did not want to have anything to do with a robbery. He went back to finish his drink, and then headed out of the bar. As Kelley was stepping out the door, defendant again tried to convince him to join in the robbery, but Kelley reiterated that he wanted no part in it. At the time Kelley left the bar, defendant and Hollowhornbear were the only ones there besides the bartender.

After leaving, Kelley walked eastbound on 12th Street towards Webster Street. He crossed this intersection and continued east on the south side of 12th Street towards the next cross-street, which was Harrison. He passed the Cochran and Celli automobile dealership, and was about three-quarters of the way down this block of 12th Street between Webster and Harrison when he stopped to look back. He saw that defendant and Hollowhornbear were on the sidewalk in front of the Golden West Bar. The street was well-lit by several street lights. Defendant was holding a shiny object in his hand, which Kelley thought was a knife. Hollowhornbear was holding his black nylon gym bag. They proceeded to the nearby corner of 12th and Webster. Defendant wiped the knife on his pants and on a bag he took from the gutter.

Kelley started walking towards them, but then decided he wanted to get away, and turned the corner and began walking down Webster Street toward 13th Street. After turning right on 13th Street, he reached Harrison Street and crossed a parking lot. Defendant and Hollowhornbear followed and caught up with him in the parking lot, where Hollowhornbear handed Kelley a bottle with a pour spout on it, and asked him to hold it for a second. Kelley held it for a while and then threw the bottle into some nearby bushes. Kelley noticed that Hollowhornbear’s gym bag contained between four and six bottles, some of which had spouts on them and appeared to be bar bottles. After tossing the bottle, Kelley jogged back to the warehouse on his own.

Five to 10 minutes after Kelley returned to the warehouse, defendant arrived. Someone else was using the bathroom sink, so defendant started washing his hands in the toilet bowl. Defendant began changing clothes, and asked where his glove was. Kelley later saw a clear surgical glove lying on the floor near the toilet. The lights were on in the warehouse and Kelley noticed some dark splotches on defendant’s jeans, between his waist and his knees, which had not been there before they went to the Golden West Bar.

Five minutes after defendant, Hollowhornbear also arrived at the warehouse. Kelley did not notice any stains or splotches on Hollowhornbear. Hollowhornbear had his black gym bag, which was still full of bottles. He removed approximately six bottles from the bag, three of which had spouts on them, and began drinking from one. Defendant told Hollowhornbear to change his clothes, but Kelley never saw Hollowhornbear change.

After defendant changed his clothes, he said he wanted to get rid of his old clothes by dumping them in “the deep, deep water.” Defendant made a bundle of the clothes by tying the arms of the black security-type jacket around them. With defendant carrying the bundle, defendant and Kelley went outside. Defendant said he wanted to stash his knife, threw the bundle of clothes to Kelley, and then departed for five minutes. Defendant returned and retrieved the bundle, and they went to the estuary. They came to a large restaurant located on the water at Jack London Square. Kelley waited at one corner of the building while defendant went around the building the other way carrying the bundle. Kelley could not see where defendant went. Three to five minutes later, defendant returned without the bundle.

They went to another restaurant in Jack London Square, the Jack London Inn, where defendant ordered a round of beers. A man was singing and playing piano at the bar. Defendant went to the restroom, and Kelley followed a few minutes later. Kelley used the urinal and saw that defendant was in the stall. Kelley returned to the bar, but eventually came back to use the restroom a second time. Although the toilet had overflowed, Defendant was still in the stall and was counting his money. Kelley saw bills of different denominations, $1’s and $5’s, in the water on the floor. There was also a broken roll of quarters on the floor. Kelley heard defendant say, “I killed him for a measly hundred and something dollars.” Defendant said he had left “the big bills” in the black security-type jacket he had thrown in the estuary.

Defendant gave Kelley some quarters from the broken roll (amounting to about $7 or $8), which Kelley used to buy a beer. They then went to the restaurant area to eat, and defendant ordered two steak dinners. Kelley could not eat very much. After they left the restaurant, they returned in a zigzag manner to the warehouse. Kelley recalled looking up and seeing a building clock indicating 1:45. While they were walking back, defendant said he had to kill the bartender because the bartender knew him and defendant didn’t want any witnesses. When they returned to the warehouse, Hollowhornbear was still there but left shortly thereafter. Kelley slept until about 6:00 a.m., and then took BART to his brother’s house in Fremont and stayed there. Kelley did not talk again with either defendant or Hollowhornbear.

A littler over a month later, on October 15, 1984, police officers took Kelley from his brother’s house to the police station for questioning. Kelley agreed to talk to the police and the district attorney. The Alameda County District Attorney’s Office provided Kelley with a place to stay, some food, and $110 a week in cash for six weeks, from February 14, 1985, to March 31, 1985.

c. Testimony of Thomas Moody

Thomas Moody was a longtime resident of the warehouse, and was living there, along with defendant and Kelley, on the day of the murder. During the early evening, Moody had taken Mladinich’s van to be serviced at the gas station around the corner. Moody then visited a friend, had something to drink, and returned to the warehouse around 10:30 p.m., in an inebriated condition. Defendant and Mladinich were there when he returned. Mladinich yelled at Moody for taking the van and, about half an hour after that, he went to sleep.

On either the day after the murder, or the day after that, Moody talked to defendant about the knife that Kelley had sold to defendant. Moody asked defendant to sell him the knife (an offer that Moody had first raised a week or two earlier). But defendant now told him that he had gotten rid of the knife.

After the murder, police began coming to the warehouse to investigate. After these police visits, Moody saw defendant talk to Dennis French, another resident of the warehouse, and then saw defendant pack up his clothes and leave. About two weeks later, Moody saw defendant back at the warehouse and Moody asked him what he had done. Defendant said that he had robbed the Golden West Bar, sliced the bartender’s neck, and stabbed him. Defendant said he used the knife he bought from Kelley, which he then ditched. Defendant said that he took all the money, around $280 from the cash register, and that Hollowhornbear had been with him at the bar. After the crime, they stole a station wagon from downtown Oakland and “partied the money off.” Asked why he had done it, defendant replied, “You got to do what you got to do.”

A few weeks after his conversation with defendant, on October 4, 1984, Moody was taken into custody by police outside the warehouse based on outstanding warrants unrelated to the murder. At first, Moody denied any knowledge of the murder, but eventually he told the police about defendant’s admissions. Moody stated he had not initially told police about defendant because he was afraid of defendant’s brother, Jerry, who he knew was out of jail and who had stabbed someone before. The day after he talked with police, the district attorney’s office made arrangements to house Moody at a motel in Hayward. Moody stayed there approximately five months. The district attorney’s office made weekly payments of $70 for rent and $40 for food for 22 weeks, for a total of $2,420.

d. Testimony of Leonard Ray McCurry

For the first two or three months of 1985, Leonard Ray McCurry was in the protective custody unit of the Oakland North County Jail, in Alameda County, serving a five-year sentence for felony robbery. He was housed in the cell next to defendant, and the two talked. Defendant told McCurry that he had been in a bar with two other individuals and that they had gone into the bathroom and discussed robbing the bar. One of the two said he did not want to participate and left. Defendant and the other one, an “Indian named ‘Hornblower’ ”[sic], robbed the bartender. Defendant realized the bartender would recognize him, so he cut the victim’s throat using his left hand, even though he is right-handed. In early April 1985, McCurry talked to the authorities about defendant’s statements. McCurry sought, but did not receive, a lesser sentence in exchange for this information about defendant.

At the time McCurry testified at defendant’s trial, he was in custody on a parole violation. The prosecutor had promised McCurry that, if he testified, he would be removed from his current prison (Deuel Vocational Institute in Tracy), put in protective custody in Santa Rita Jail, and allowed to serve the remaining 32 days of his time there. He was also allowed to have a contact visit with his wife and his newborn daughter.

On cross-examination, McCurry stated that defendant gave him information knowing McCurry was going to take it to the authorities in order to seek a better sentence. Defendant and McCurry worked together in figuring out which information might interest the authorities, and defendant wrote a letter to give McCurry something tangible to present. The letter was addressed to fictitious persons asking them to establish an alibi for defendant on the night of the murder. Defendant also shared with McCurry the contents of defendant’s legal papers, including police reports that may have contained the statements of Kelley and Moody. Defendant came up with the idea of giving McCurry information about defendant’s case so that McCurry could take it to the authorities.

e. Defendant’s Statements to the Police

After defendant was arrested for the murder, he was informed of his Miranda rights, and agreed to talk to police investigators. (Miranda v. Arizona (1966) 384 U.S. 436.) Defendant initially denied any knowledge of or involvement in the robbery murder. But the officers told him a witness had placed him at the bar, and they asked him how he would explain it if his fingerprints were found on the cash register. Defendant admitted he had been at the bar and said he had previously denied it because he was afraid of Hollowhornbear and Hollowhornbear’s brother.

Defendant’s initial statements denying any involvement in the murder were not tape-recorded. After he admitted being at the bar and gave his version of the events the night of the murder, the officers questioned him on tape. The tape was played to the jury, and defendant’s extensive taped interview included the following statements. Defendant, Hollowhornbear, and Kelley were the last ones in the Golden West Bar the night of the murder. Kelley left to buy some marijuana and defendant never saw him again that night. The bartender refused to serve Hollowhornbear, who had become drunk and belligerent, and told him and defendant to leave. Hollowhornbear went behind the bar and grabbed a bottle. The bartender went to stop him and the two began scuffling. Defendant tried to pull Hollowhornbear off the bartender, but let go when he saw that Hollowhornbear had a knife in his hand. Defendant panicked and ran out of the bar. When he was out on the street, defendant noticed that there was blood on his pants and shoes. The next day defendant discarded his bloody clothes in a trash can in the park. In the park, he encountered Hollowhornbear, who gave him $16, and expressed anger at defendant for running out on him at the bar.

2. Defense Case

a. Defendant’s Testimony

Defendant testified in his own defense. On September 3, 1984, defendant was living at the warehouse. At 7 a.m. that day, defendant was picked up by his employer, and he worked until about 9:00 or 9:30 p.m. that evening doing foundation work on a house. While working that day, he injured his hand, and, as a result, he wore a white gauze pad held on with an Ace bandage and a green rubber glove with the fingers cut off. After finishing work, he was paid his usual daily wage of $25 to $30. His employer dropped him back at the warehouse and defendant went to the liquor store to buy two or three small bottles of mixed drinks, four cans of beer, and cigarettes. He returned to the warehouse and drank.

Around 10:30 p.m. he left the warehouse with Kelley. Kelley asked defendant to lend him some money to buy marijuana, offering to split the bag with him. They met up with Hollowhornbear. Hollowhornbear was about six feet six inches tall and lived on the streets. He had his possessions in a bag he always carried with him. He was drinking from a bottle of wine in a paper bag and appeared to be under the influence.

Kelley went off to buy the marijuana, and defendant talked to Hollowhornbear. Hollowhornbear’s mother had just died. She had lived on a reservation in South Dakota and Hollowhornbear had been trying to raise money to travel to her funeral. He was angry because no one would give him any money. Defendant was carrying two knives with him that evening; one had his nickname, Raccoon, on it, and the other was the knife he had bought from Kelley. Defendant traded this latter knife to Hollowhornbear for a beaded Indian wristband and a Bic lighter. Kelley returned after about 10 minutes, but had been unable to procure any marijuana.

The three then went to the Golden West Bar to get a drink. Defendant put $20 on the bar and bought several rounds of drinks. Defendant tried to play pool but had problems because he was blind in the left eye, and his other eye was light sensitive, and, as a result, he wore dark glasses. Kelley eventually left the bar, indicating that he was going to look for marijuana. After Kelley left, Hollowhornbear began to act belligerently and tried to order the bartender around. The bartender refused to serve Hollowhornbear any more drinks. Defendant urged the bartender to serve Hollowhornbear another beer because that would “mellow” him out, but the bartender refused and asked Hollowhornbear to leave, threatening to call the police if he did not. The bartender began walking toward a cab phone at the other end of the bar that had a direct line to the police station. Hollowhornbear headed for the door, but then got behind the bar and reached for one of the bottles. The bartender ran toward Hollowhornbear and they started wrestling. Defendant got behind Hollowhornbear and tried to pull him off the bartender. Hollowhornbear’s arm flew back and knocked defendant to the floor. Defendant got up and once again tried to pull Hollowhornbear away. Hollowhornbear was holding the bartender by the hair and hitting him. As defendant tried to grab Hollowhornbear’s arm, defendant saw a knife in Hollowhornbear’s hand, which defendant believed was the one he had traded to him earlier in the evening. Defendant panicked and ran, initially running the wrong way towards the rear of the bar, and then turning around and running out the front door. Defendant grabbed a long-necked beer bottle on the way out, which he took back to the warehouse and remembered seeing the next morning.

After defendant left the bar he began running back to the warehouse. Pausing to catch his breath at one point, he noticed that there were dots of blood on the cuff of his pants and on his boots. When he returned to the warehouse he changed his clothing because it had blood on it, and also because he had urinated in his pants. Defendant had worn a denim jacket to the bar, which he kept (and was wearing when he was arrested about a month later). But he threw away his pants, socks, and boots in a Dumpster in Estuary Park the day after the killing. Defendant did not see either Kelley or Hollowhornbear at the warehouse that night.

The next day, defendant encountered Hollowhornbear at a park near the warehouse. Hollowhornbear gave defendant about $16. As they talked, Hollowhornbear indicated he was angry that defendant had “run out on him” at the bar. Hollowhornbear’s hand was hurt and he had a bandanna on it. Hollowhornbear threatened that if anything happened to him, he or his brother, Seth, would kill defendant. Following his encounter with Hollowhornbear, defendant stopped staying at the warehouse and lived for four or five days in a hole under the sidewalk that was the remains of the basement of a demolished building. Defendant then went back to staying at the warehouse, where he was arrested on October 5, 1984. At the time of his arrest, defendant was on probation for two second degree burglaries to which he had pleaded guilty the year before.

After his arrest, defendant initially denied any knowledge of the killing at the Golden West Bar or knowing Hollowhornbear because he did not want to get involved and because he was afraid of Hollowhornbear’s brother. After the police told him that Hollowhornbear had been arrested, he told the police what had happened.

Defendant denied the substance of Kelley’s testimony. He denied that he ever suggested to Kelley that the three of them should rob the bar, denied ever robbing the bar, and denied taking any money or liquor bottles from the bar. He denied running with Kelley and Hollowhornbear back to the warehouse, hiding the knife, or going with Kelley to throw his clothes into the water at Jack London Square. He denied having a steak dinner with Kelley at the Jack London Inn the night of the murder. He denied cutting the throat of the victim or telling Kelley that he had done so. He acknowledged owning a black security-type jacked but stated it had been destroyed in a house fire prior to the night of the killing.

Defendant also denied the substance of Moody’s testimony. Defendant denied telling Moody he had killed the bartender, robbed the Golden West Bar, stolen a car, and spent all the money from the robbery “partying.” Defendant said he once told Moody that he had killed someone in Los Angeles in order to frighten Moody, but he had never actually killed anyone. He confirmed that Moody approached him about buying the knife that defendant had obtained from Kelley, but claimed Moody never had enough money to complete the deal.

Defendant acknowledged he had given information about his case to jailhouse informant McCurry, but denied telling McCurry that he robbed the Golden West Bar and cut the bartender’s throat. Rather, defendant told McCurry those were statements that McCurry could tell the authorities defendant had made in order to obtain a deal from them. Defendant said he wrote a letter to a fictitious person asking for an alibi as part of the scheme to provide McCurry with material to obtain a deal. Defendant said he came up with the story about killing the bartender with his left hand in order to account for the fact that defendant’s right hand was injured at the time.

b. Physical and Circumstantial Evidence

A police officer testified that the day after the stabbing he searched streets surrounding the bar but did not find any bottles with bar spouts or any other evidence that might have come from the bar.

The hair found in the victim’s hand matched the victim, not defendant.

The parties stipulated that the victim had a blood-alcohol concentration of .222 at the time of his injury. Dr. Thomas Rogers, a forensic pathologist, gave his opinion as to the effects of alcohol on the human body. He testified that alcohol can impair a person’s perception, coordination, and memory. Given the victim’s blood-alcohol concentration, Rogers estimated the victim had drunk at least the equivalent of nine cans of beer. At that concentration, the victim was under the influence of alcohol in both a legal and medical sense, and his intoxication could have affected the reliability of his response to the question of how many people were involved in his stabbing.

Two investigators from the Alameda County Public Defender’s Office testified that they measured the distances in the area of the Golden West Bar. One investigator stood in front of the bar waving some shiny objects (keys and a metal soda can), while the second walked down 12th Street noting their visibility from various distances. The second investigator testified that she could not see the shiny objects when she got as far as the intersection with Harrison Street.

The parties stipulated that Hollowhornbear’s mother, Elizabeth Hollowhornbear, died on August 22, 1984 in South Dakota.

c. Impeachment of Prosecution Witnesses

(1) Kelley

To contradict Kelley’s testimony that he had left Oakland for his brother’s house in Fremont the morning after the murder, the defense called Sharon McBride, a fellow alcoholic who knew defendant and Kelley. She testified that, a couple of days after Labor Day 1984, she saw Kelley drinking in a park in Oakland. A police officer testified that she had arrested McBride for public drunkenness in the park on September 6, 1984.

Bill Gregg, the general manager of the Jack London Inn, testified that (contrary to Kelley’s testimony) in September 1984 no musicians or singers were employed at the Jack London Inn. The Inn began to employ musicians in January 1985.

Robert Gannon, an inspector for the Alameda County District Attorney’s Office, stated that, in February and March 1985, Gannon paid Kelley $110 a week for six weeks. Gannon testified that neither he nor any member of the district attorney’s office promised Kelley immunity from prosecution in exchange for his testimony. However, Harold Boscovich, director of the victim/witness assistance program, acknowledged that his office’s application to the state for additional funds indicated that Kelley had been given immunity for conspiracy to kill a bartender in a local bar. Boscovich stated that his office typically would have received the information it used for the application from the district attorney’s investigator.

(2) Moody

Inspector Gannon stated that from October 1984 to March 1985, the district attorney’s office paid Moody $110 a week, for a total of a little over $2,400. Gannon paid $70 to Moody’s landlord and gave the remaining $40 directly to Moody. The district attorney’s office relocated Moody from the warehouse and paid his rent because Moody feared harm from defendant’s brother, who was out on parole.

When police brought Moody in for questioning, they were aware there was a warrant for his arrest, but they did not arrest him after they finished questioning him. The officer who checked Moody’s warrant recalled it as being for a minor traffic violation.

Lothar Eissel testified that between 1985 and 1987 his daughter, Lola Eissel (also known as Lola Powers), lived with Moody. Lothar said Moody told him that he was a witness in a murder trial and that it made him “immuned [sic] to the law.” At one point, Moody broke into the apartment he shared with Lola and got into a scuffle with Lothar. Moody was arrested, but then released two hours later.

Patrick Fitzgerald Robello testified that he had worked with Moody at a gas station and, in his opinion, Moody did not tell the truth.

3. Prosecution Rebuttal Case

a. Kelley’s Prior Consistent Statements about the Murder

Kim Kelley, Kelley’s sister-in-law, testified that Kelley came to her house in Fremont around Labor Day, September 3, 1984, or the day after. Kelley told her he had a problem in Oakland where he was living. He said he had been in a bar with a White male and a Native American male, and the White male asked him to help rob the bar. Kelley said he refused to rob the bar and left. He was walking away from the bar when he heard some noise and turned around to see people running out of the bar. The White male came running up to him; his clothes were full of blood and he had some money sticking out of his pockets. Kelley said that he went to the river with the White male, who dumped the money and the clothes into the water. The White male gave Kelley some money and told him to get out of town and not to talk to the police. Kelley rode BART to his sister-in-law’s house with the money the White male gave him.

b. Kelley’s Dealings with the Authorities

Jerry Curtis was a deputy district attorney in October 1984, and filed the complaint against defendant in the case. Curtis advised the investigating officers that he was not going to charge Kelley. Curtis made no promises to Kelley concerning immunity from prosecution.

Retired Justice of the First District Court of Appeal Joanne Parrilli, then an Alameda County Superior Court judge, testified that, on October 15, 1984, when she was a deputy district attorney, she took a statement from Kelley. In her opinion, Kelley was a witness rather than a participant in the robbery murder. She never made any promises of immunity to Kelley.

Albert W. Meloling was assistant district attorney in charge of northern Alameda County, including Berkeley, Oakland, and Alameda. One of his responsibilities was reviewing all capital matters. He had no discussions with anyone regarding immunity from prosecution for Kelley.

Angela Backers was the prosecutor who was assigned to the preliminary hearing of defendant and Hollowhornbear. Kelley and Moody were among the witnesses she called. Backers never discussed immunity with Kelley. The district attorney’s office never considered charging Kelley with any offense.

Recalled on rebuttal by the prosecutor, Inspector Gannon stated he never told Inspector Boscovich (of the victim/witness program) that Kelley was involved in a conspiracy to rob and murder a bartender at a local bar, nor did he ever tell Boscovich that Kelley had been granted immunity. Gannon reiterated that he had not made any promises or representations to Kelley that he would be given immunity.

c. Moody’s Dealings with the Authorities

Richard Humphrey, an attorney who represented Moody in a number of misdemeanors and traffic matters, testified he never made any representations to the court or to the district attorney’s office that Moody was a witness in a homicide case and was seeking some leniency or consideration by virtue of that fact. Humphrey did not even know that Moody was a witness in a homicide case when he represented him.

Deputy District Attorney Backers testified she was aware that Moody was in custody for misdemeanor driving on a suspended license. She asked that he be released from custody on his own recognizance because his life was endangered due to the testimony he was going to give in defendant’s case. She asked that his misdemeanor traffic case be continued to a later date so that he could appear as a witness at the preliminary hearing. Backers was also involved in securing Moody’s release on his own recognizance in another case. She never asked for any leniency for Moody, and he was convicted in the misdemeanor traffic case.

B. Second Trial: Special Circumstance Retrial

After the court declared a mistrial at the first trial on the robbery-murder special-circumstance allegation, a second jury was impaneled to retry it.

1. The Prosecution’s Case

The prosecution presented a substantially similar but more compact version of its case at the first trial, calling the same major witnesses to establish the facts surrounding the discovery of the victim at the Golden West Bar and the nature of the fatal injuries. Kevin Kelley was called and gave substantially the same testimony. However, Leonard McCurry was not called to testify.

Thomas Moody could not be located, and the prosecution moved to have him declared an unavailable witness. The court held a hearing in which the prosecutor and his inspector presented evidence of their unsuccessful efforts to locate Moody. The court ruled that the prosecution had exercised due diligence in attempting to locate Moody for trial, and that Moody was unavailable. Over defense objection, his prior testimony was read to the jury.

2. Defense Case

Defendant did not testify at the special circumstance retrial.

The defense called the first police officer who arrived at the Golden West Bar and questioned him about the victim’s final words and gestures. The defense also called a police officer and an inspector from the District Attorney’s office who had interviewed Kelley and questioned them about Kelley’s pretrial statements to them. As in the first trial, the defense called Dr. Rogers to testify about the amount of alcohol the victim had ingested.

C. Second Trial: Penalty Phase

The jury found the robbery-murder special-circumstance allegation to be true, and the trial proceeded to the penalty phase. The prosecutor listed 29 matters in aggravation in his section 190.3 notice, including prior felony convictions and unadjudicated crimes.

1. Prosecution Case in Aggravation

a. Prior Felony Convictions

The prosecutor presented evidence that defendant had suffered five felony convictions from 1976 to 1984: three for second degree burglary, one for attempted first degree burglary, and one for being an inmate in possession of a deadly weapon.

b. Unadjudicated Criminal Activity

(1) Rape of Amanda V. M.; Assault on Patrick Ryan

Amanda V. M. testified that in April 1977, defendant, who lived in the same apartment complex in North Hollywood, approached her in the hallway of the building and forced her into the laundry room by threatening to stab her with a knife. Defendant removed some of her clothing by cutting it away with his knife, and then raped her. Defendant wanted her to come stay at his apartment because he disapproved of her living with a Black man. A week later, defendant threatened to rape her again if she did not leave the Black man’s apartment. She told two male friends, who confronted defendant in his apartment. Defendant stabbed one of the men, Patrick Ryan, during the confrontation. The police officer who responded to the disturbance testified that Ryan suffered two stab wounds, one to his hand and one to his groin. After his arrest, defendant told the officer he was trying to defend himself when he stabbed Ryan, and that Ryan had accused him of raping a woman. Defendant was not charged in connection with either the Amanda V. M. or Ryan incidents.

(2) Assault on Jose Jacobo

Jose Jacobo testified that in 1976, defendant, part of a group of four or five people, pulled a gun on him and demanded money. Jacobo grabbed the barrel of the gun and pushed it away, and then was hit in the head and beaten with a stick by someone in the group.

(3) May Company Theft

A security guard for the May Company department store in North Hollywood testified that, in 1980, defendant struck him a glancing blow when he attempted to prevent defendant and an accomplice from stealing clothing from the store. Defendant acknowledged to his parole officer at the time that he had participated in the theft and swung at the security guard.

(4) Possession of weapons while an inmate

In 1978, a guard found an inmate-manufactured weapon made out of bedspring material in defendant’s cell in Chino State Prison. In 1983, defendant was found with a small handmade knife while incarcerated at the Santa Rita Jail.

c. Incidents During Custody

The prosecutor presented evidence of four unadjudicated incidents between 1984 and 1992 that occurred while defendant was incarcerated in the county jail before and during his trials for his capital offense. Defendant threatened to stab an inmate named Mario Holland in the neck with a pair of fingernail clippers. Defendant was involved in a fight with another inmate, George Calderon, and bloodied his nose. After guards responded to a disturbance in which defendant threatened another inmate, Lynch, defendant threatened a guard with a broom.

Finally, the prosecutor presented testimony that defendant had planned to escape. Roger Rosenberg, an inmate incarcerated in the North County Jail in Oakland, testified that on October 25, 1985, he overheard defendant tell another inmate that defendant and his brother were planning defendant’s escape from Highland Hospital. The plan involved defendant’s brother being armed with a gun. Defendant also mentioned an alternate plan, by which his brother would bring a gun to court and effect his escape.

2. Defense Case in Mitigation

a. Defendant’s Testimony

Defendant testified about his childhood and early adult years. Defendant was born in Portland, Oregon, and his parents settled in the San Fernando Valley area of Southern California when he was 11 or 12 years old. Defendant’s parents were both heavy drinkers who frequently fought physically and injured each other. Defendant’s father declared he had never wanted to have defendant and his brother Jerry, and beat them at least once a week. Defendant’s father was a neglectful parent who never took defendant anywhere except bars, where he and his brother would play in the parking lot. Although defendant’s mother was also a drinker, she provided some degree of care and support to defendant and his brother.

At age nine or 10, defendant felt he did not fit in at school because of his clothes, and because some of the parents told their children not to play with him. He was ridiculed as being “White trash” by the other kids. By this time, defendant was drinking alcohol, which he stole from a bar. By age 13 or 14, he was drinking heavily. He also sniffed spot remover and smoked marijuana. He was arrested several times for burglary. When he was 14 or 15, he was involved in juvenile court proceedings and was sent to an institution for six months. He attempted suicide around this time. When he was 15 or 16, his mother died. At various times between the ages of 15 and 27 (when he was arrested for the capital crime) defendant was incarcerated at several county jails and state prisons for periods ranging from six months to a year.

On cross-examination, defendant admitted that he possessed books on Satanism, and that, at one point, he had been a member of the Ku Klux Klan. He admitted that when he was 13 years old, he and his brother laid chains on a railroad track, but he denied trying to derail the train. He admitted that, when he was 21 years old, he had broken into a sporting goods store, stolen between 30 and 40 guns, and been sent to state prison for this crime.

b. Other Testimony on Defendant’s Social History

The owner of the apartment that defendant lived in when he was around 14 years old testified that defendant’s father “just wasn’t much of a parent,” and that he could smell alcohol in the apartment. A neighbor, Deborah Thielen, testified that every time she saw defendant’s father he was intoxicated. Defendant fought with his father, and sometimes ran away for periods of weeks or a month.

Dr. Karen Gudiksen, a psychiatrist, interviewed defendant for approximately 10 hours over five sessions, interviewed defendant’s brother for one and a half hours, and reviewed medical, school, and probation records provided by defense counsel. She concluded that defendant suffered from chronic alcoholism with some mild organic brain impairment. His organic brain impairment was probably caused by his excessive consumption of alcohol, his many head injuries, and his use of inhalants, such as sniffing gasoline.

Dr. Gudiksen’s social history of defendant paralleled defendant’s testimony. Defendant’s father was an abusive alcoholic who fought frequently with defendant’s mother and beat the children. Defendant’s mother was also a drinker. The family was transient, sometimes with no permanent place to stay. Defendant and his brother raised themselves from a very early age, scrounging and shoplifting to obtain clothes. School records indicated that by the fourth grade defendant was working below grade level. A junior high school evaluation stated he was getting little or no help at home, and that he needed a lot of help because he was heading for “real problems” otherwise.

Defendant was drinking and using marijuana by the time he was 12 or 13. He went on to use barbiturates and a wide variety of inhalants. At 16, he was placed in a juvenile facility for some months, but eventually was returned to his home environment, which remained neglectful and abusive. Around this time, he contemplated suicide after a girlfriend broke up with him. Defendant was not religious as a youth, but as a young adult he converted to Catholicism in custody after taking counseling from a priest.

c. Expert Witnesses

Dr. Richard L. Basford, a physician whose practice included the treatment of alcoholism, treated defendant for about three years, beginning in 1980. Dr. Basford made a diagnosis of chronic alcoholism and chronic brain syndrome, which is nerve loss in the brain as a result of chronic alcoholism. Basford reexamined defendant in 1992 in the county jail, and diagnosed him with chronic brain syndrome, secondary to multiple head traumas and alcoholism.

Dr. Joseph Izzo, a licensed neurosurgeon, testified that he performed a neurological examination of defendant in 1992 that revealed no evidence of organic brain injury. Defendant’s electroencephalogram (EEG) was minimally abnormal and was consistent with, but not diagnostic of, a possible seizure disorder, and provided minimal evidence of a possible left temporal abnormality. A minimal abnormality is one that is not readily evident when the patient is awake.

d. Character Witnesses

Ronald Paul Harton, the pastor of the Pacifica Baptist Church, allowed defendant to live in his home on two occasions in 1980 when defendant was between incarcerations. The first time was for a few days, the second time for about two months. Harton and his family never had any problems with defendant; according to Harton, defendant tried hard to change his way of life, particularly his alcoholism.

David Ferguson, director of Open Door Mission, a support center for the homeless, knew defendant before his incarceration for the capital crime, when defendant came to his mission for meals. Ferguson found defendant to be “one of the nicest persons you ever want to meet” when he was sober, but an aggressive “idiot” when he was drunk.

Sue Ochs was an attorney appointed by the federal District Court for the Northern District of California to take over a civil lawsuit originally filed by defendant on behalf of himself and two other inmates in the North County Jail concerning the confiscation of religious objects and the lack of religious services for Catholic inmates. The case was ultimately settled, resulting in the availability of Catholic religious services at the jail. In her interactions with defendant in the course of the lawsuit, she found defendant to be very focused, sincere, and helpful.

Jessie Pettingill corresponded with defendant for seven years as part of her church’s prison ministry program. She testified that she and defendant had become very close, and that defendant had helped her through difficult times in her life, such as the death of her granddaughter.

Carol Johnson, a social worker at Catholic Charities in Oakland, served as a visiting chaplain at the North County Jail, where defendant was incarcerated. She had discussions with defendant on various spiritual and secular topics and considered him a very gentle person who was reaching out for help.

Eugene Stelly was a deacon at a Roman Catholic church in Oakland who performed a Catholic religious service at the North County Jail on Sunday mornings. Over a five-year period, he ministered to defendant on a one-to-one basis and found him to be a serious student with whom he had good rapport.

Susan Sawyer, an Assistant Public Defender for Alameda County and defendant’s lawyer for his first trial, testified that defendant was polite and hard working. She never felt physically threatened by him, even when alone with him.

3. Prosecution Rebuttal

Kathleen Boyovich, a bailiff in the courtroom during part of defendant’s first trial in 1988, testified about physical interactions between defense counsel Susan Sawyer and defendant. Sawyer fixed defendant’s hair, rubbed his head, and put her arms around him. This concerned Boyovich for security reasons, and she personally found it repulsive.

II. Discussion

A. First Trial (Guilt Phase)

1. Asserted Prosecutorial Misconduct

Defendant contends that pervasive prosecutorial misconduct denied him a fair trial, a fair special circumstance finding, and a fair death judgment in violation of his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the California Constitution. The standards governing review of misconduct claims are settled. “A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such ‘ “unfairness as to make the resulting conviction a denial of due process.” ’ (Darden v. Wainwright (1986) 477 U.S. 168, 181; see People v. Cash (2002) 28 Cal.4th 703, 733.) “Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.” (People v. Alfaro (2007) 41 Cal.4th 1277, 1328.) “In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.” (Ibid.) When a claim of misconduct is based on the prosecutor’s comments before the jury, “ ‘the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ ” (People v. Smithey (1999) 20 Cal.4th 936, 960, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841.)

As discussed in detail below, we conclude that defendant forfeited several of the instances of asserted misconduct he now raises because trial counsel failed to object or failed to object adequately. We have stated an exception to the requirement that trial counsel must object to each instance of misconduct to preserve it on appeal when the “misconduct [is] pervasive, defense counsel [has] repeatedly but vainly objected to try to curb the misconduct, and the courtroom atmosphere was so poisonous that further objections would have been futile.” (People v. Hillhouse (2002) 27 Cal.4th 469, 501-502, citing People v. Hill (1998) 17 Cal.4th 800, 821, 836.) But this case did not rise to that level. Defense counsel objected frequently to the prosecutor’s conduct, and the trial court sustained several objections. From our review of the record, we conclude the trial court kept a firm hand on the actions of the attorneys and maintained a fair proceeding.

For all the asserted instances of misconduct, whether forfeited or not, we conclude either that the instance was not misconduct or that any misconduct that occurred could not have contributed to the verdict and was harmless in light of the evidence of defendant’s guilt. (See People v. Hardy (1992) 2 Cal.4th 86, 173.) In concluding that any misconduct that occurred was not prejudicial we again note that the trial court was firmly in charge of the proceeding and kept matters under control by sustaining several defense objections. Furthermore we conclude that none of the asserted instances of misconduct was of such severity, considered alone or together with the other asserted instances of misconduct, that it resulted in an unfair trial in violation of defendant’s state and federal constitutional rights. (See ibid.)

a. Disparagement of Defense Counsel

During trial, the prosecutor, Theodore Landswick, described Defense Counsel Susan Sawyer as being “a true believer” who would “support her belief based only on her belief,” and likened her arguments to “spit[ting] in your face to insult you.” He repeatedly accused her of obscuring the truth and confusing the jury. Defendant also contends the prosecutor implied that trial counsel had stopped playing a taped statement in order to cover something up, even though the court had made a ruling outside the presence of the jury that she could not play the rest of the tape.

Defense counsel frequently objected during the prosecutor’s closing argument and rebuttal, but mainly on the basis that he was misstating the evidence. Defense counsel only specifically objected to three comments as personal attacks: (1) the “true believer” comment, which was sustained and the prosecutor was instructed to “leave personalities out of it” (2) the comment that one of her arguments was “childish,” which was overruled, and (3) the tape-stopping coverup implication, which was sustained to the extent the court instructed the prosecutor, for the second time, to refrain from making personal attacks. Accordingly, defendant’s claims as to the other comments are forfeited. (People v. Alfaro, supra, 41 Cal.4th at p. 1328.)

While we have stated “ ‘[a] prosecutor may vigorously argue his case, marshalling the facts and arguing inferences to be drawn therefrom,’ ” we have also observed that “[p]ersonal attacks on opposing counsel are improper and irrelevant to the issues.” (People v. Sandoval (1992) 4 Cal.4th 155, 184, 183-184.) As to the prosecutor’s comments in closing argument about defense counsel’s playing the tape, we conclude that there was no misconduct. “The prosecutor did not engage in such forbidden tactics as accusing defense counsel of fabricating a defense or factually deceiving the jury.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1154, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The complete transcript of the tape had already been presented to the jury by that point in the trial, so the prosecutor was not insinuating that trial counsel was trying to hide anything. Rather, the focus of the prosecutor’s comments was that trial counsel’s playing only a part of the tape could have left a misleading impression on the jury, which the prosecutor sought to correct by referring to the complete transcript during his closing argument.

As to the other personal comments, both forfeited and unforfeited, even assuming the prosecutor’s behavior was misconduct, we conclude that defendant was not prejudiced. The trial court twice firmly admonished the prosecutor against making personal comments, which insured that the jury understood that such comments were irrelevant to its consideration of the case. From our review of the record, we conclude “ ‘it is not reasonably probable that the prosecutor’s occasional intemperate behavior affected the jury’s evaluation of the evidence or the rendering of its verdict.’ ” (People v. Stewart (2004) 33 Cal.4th 425, 503, quoting People v. Espinoza (1992) 3 Cal.4th 806, 820-21.)

b. Disparagement of Defendant

Defendant contends the prosecutor committed misconduct by laughing during defendant’s testimony on direct examination, and by making disparaging comments about defendant during summation.

(1) Laughing

During a break in the proceedings, defense counsel objected to the prosecutor’s conduct during defendant’s testimony, asserting he had “been kind of sitting there laughing.” The court overruled the objection, noting that it was “not going to tell people they can’t laugh or smile.” Later, during her closing argument, defense counsel stated, “[d]uring Mr. Friend’s testimony on the stand, Mr. Landswick was laughing, rolling his eyes, waving his hands, did a lot of things to give the impression that this testimony was absolutely not worthy of belief.” During his rebuttal argument, the prosecutor referred to his “chortling during the examination of the defendant,” explaining that “what caused [him] to chuckle” was that defense counsel engaged in leading questions to get the testimony she wanted from defendant.

We have stated that “juvenile courtroom behavior by a public prosecutor demeans the office.” (People v. Hill, supra, 17 Cal.4th at p. 834.) Here, how much the prosecutor laughed is unclear, although the prosecutor himself admitted to some chuckling and chortling. Even assuming the prosecutor’s behavior was misconduct, we conclude it was harmless. The trial court, which was in the best position to assess the prosecutor’s behavior, did not find that his actions disrupted the proceedings. Defendant further argues that the laughter provoked defendant to be hostile to the prosecutor during his cross-examination, which redounded to defendant’s detriment in front of the jury. The record, however, indicates that defendant’s hostility during cross-examination was caused by the prosecutor’s rigorous questioning. Any additional hostility accruing from the laughter appears minimal. Given this record, we see no prejudice to defendant.

(2) Disparaging Comments

Defendant complains of various disparaging comments made by the prosecutor, none of which were objected to at trial, and all of which are therefore forfeited on appeal. Furthermore, we reject defendant’s claim on the merits. The prosecutor commented on the fact that defendant had “washed his hands in the toilet bowl” and described defendant’s living beneath the sidewalk as “living like a mole or the rat that he is.” As we have noted, the use of derogatory epithets to describe a defendant is not necessarily misconduct. (People v. Ashmus (1991) 54 Cal.3d 932, 975, disapproved on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117.) The prosecutor’s remarks here were founded on evidence in the record and fell within the permissible bounds of argument. (See People v. Zambrano, supra, 41 Cal.4th at p. 1172 [argument may include opprobrious epithets warranted by the evidence]; People v. Williams (1997) 16 Cal.4th 153, 221 [prosecutors are afforded a wide range of descriptive comment, including epithets].) Defendant also complains that the prosecutor implied or directly stated that defendant had lied in his testimony at various points. But, “[w]hen a defendant’s testimony contradicts the strong evidence of his guilt, it is not improper to call him a liar.” (People v. Zambrano, supra, 41 Cal.4th at p. 1173.) Such was the case here.

c. Elicitation of Evidence on Subject Matters That Had been Ruled Inadmissible

Defendant contends the prosecutor repeatedly elicited prejudicial evidence that previously had been ruled inadmissible.

(1) Dina Mladinich’s hearsay statement

After the murder, Dina Mladinich, the owner of the warehouse, told Moody that defendant had blood on his pants. This caused Moody to engage defendant in a conversation that revealed defendant had discarded the knife used in the murder. In preparation for Moody’s testimony, defense counsel moved to have the prosecutor instruct Moody not to testify as to what Mladinich said, on the grounds it was hearsay. The court instructed the prosecutor that while Moody could testify that a conversation with Mladinich had led him to believe there had been some trouble concerning defendant, which in turn caused him to ask defendant about blood on his clothing, Moody was not to mention what Mladinich had told him. Despite the court’s instruction, on redirect examination the prosecutor began to ask Moody a question on precisely this point. Defense counsel cut off the prosecutor with an objection before Mladinich’s comment could be revealed to the jury. The court admonished the jury to disregard the prosecutor’s question. Defense counsel asked the court to cite the prosecutor for misconduct and later, outside the presence of the jury, moved for a mistrial. The court denied the motion, but severely chastised the prosecutor and warned him against any further misconduct. Later, during closing argument, the prosecutor made a passing reference to the hearsay statement (“Moody had talked to Dina about blood on Friend’s pants”) which was not objected to.

In directly posing a question about Mladinich’s statement, the prosecutor violated the trial court’s prior evidentiary ruling, and, whether done intentionally or not, committed misconduct. (See People v. Hill, supra, 17 Cal.4th at pp. 822, 829 [prosecutorial misconduct does not require a showing of bad faith].) We conclude, however, that the misconduct was harmless. Defense counsel cut off the prosecutor with an objection before the hearsay statement could be revealed to the jury, and the trial court admonished the jury to disregard the question. As to the prosecutor’s reference to the hearsay statement during summation, defendant forfeited this claim by failing to object. Moreover, on the merits, we conclude the comment was harmless because it was brief and ambiguous as to who had mentioned the blood, Moody or Mladinich. Defendant contends that any reference to the Mladinich hearsay statement about blood on defendant’s clothing was particularly damaging because this was the only independent corroboration of Kelley’s account of the evening. Defendant had admitted, however, both in his recorded statement to the police and in his testimony, that there was blood on his clothing that evening. On this record, we see no prejudice to defendant.

(2) Prior Trouble at the Oasis

During his opening statement, the prosecutor described how defendant, Hollowhornbear, and Kelley ended up going to the Golden West Bar the night of the murder. Originally, the group was headed to buy beer at the Oasis, a convenience store in downtown Oakland. But, because defendant had been in trouble at the Oasis before, he did not want to go there that night, so they went to the Golden West Bar instead. The trial court sustained a defense objection to the prosecutor’s comment during opening statement that defendant had been in trouble at the Oasis, and instructed the jury to ignore it. Later, in preparation for Kelley’s testimony, defense counsel made an in limine motion to preclude Kelley from mentioning that the reason defendant did not go the Oasis was because he had stolen something or gotten into trouble there before. The court ruled that the fact defendant stole something there was to be excluded because it was a crime, but also ruled that generally mentioning that defendant had gotten into trouble there would be allowed. During Kelley’s testimony, over the objection of defense counsel, the prosecutor elicited testimony that defendant had said he did not want to go the Oasis because “he had trouble there in the past.”

Defendant contends that the prosecutor engaged in misconduct by mentioning the Oasis incident during his opening statement and later asking Kelley a question about it. We conclude there was no misconduct. Before the prosecutor’s opening statement, the trial court had not ruled that any and all mention of defendant’s past troubles at the Oasis was excluded. When the trial court did rule on the issue, immediately before Kelley’s testimony, it excluded inquiry into prior stealing, but allowed inquiry into the general fact that defendant had gotten into trouble there before, which was what the prosecutor’s question raised.

(3) Defendant’s Prior Jail Time

In preparation for Kelley’s testimony, defense counsel made an in limine motion to exclude any inquiry into the fact that defendant had previously been incarcerated. The court ruled that, in his direct testimony, Kelley should avoid any reference to defendant’s having been jailed, but noted that, if the defense raised the issue on cross-examination, the door would be open to the subject. Later, while cross-examining defendant, the prosecutor asked defendant whether, prior to the murder, he had been released from jail. During a break, outside the presence of the jury, defense counsel objected that the prosecutor had raised defendant’s prior jail time. The court ruled that its prior ruling had only applied to other witnesses, and that, once defendant took the stand, he opened up the issue, especially in light of the fact that on direct examination defendant had testified he had suffered two prior felony convictions.

Defendant acknowledges the court ultimately overruled the defense objection to the prosecutor’s question, but argues that the prosecutor nonetheless engaged in misconduct because the information was inadmissible at the time the prosecutor posed the question. But the trial court’s earlier ruling had not categorically prohibited the subject. Because the defense opened the door to the subject by eliciting defendant’s prior felony convictions in his direct testimony, the prosecutor properly could raise the issue in cross-examination.

d. Misconduct During Closing Argument: Vouching for Kelley’s Testimony

Defendant contends that the prosecutor engaged in improper tactics during closing argument. Defendant’s main contention is that the prosecutor used stricken evidence and engaged in improper vouching for Kelley’s testimony about how far down 12th Street he was when he saw defendant emerge from the bar.

(1) Background

As recounted above, Kelley testified he was about three-quarters of the way down the block of 12th Street (between Webster and Harrison Streets) when he stopped to look back and saw defendant and Hollowhornbear on the sidewalk in front of the Golden West Bar. During cross-examination, defense counsel asked Kelley why, at every previous instance in which he had given a statement or testified, he had stated that he had passed Harrison Street before looking back. Kelley answered, “I retraced my, you know, steps and I just went to the same spot I thought I did that night,” and reasserted that he had not crossed Harrison Street before looking back.

During the prosecutor’s case in rebuttal, he called Michael Pon, an inspector for the district attorney’s office, who testified that, on November 15, 1988, he, Prosecutor Landswick, and Kelley returned to the area of the Golden West Bar, so that Kelley could retrace his steps the night of the murder. Pon testified that Kelley crossed the intersection of Webster and 12th Street, walked east down 12th Street, and then stopped three-quarters of the way down the block at a light pole in front of the Cochran and Celli automotive dealership. There were four light poles on the block equally spaced apart and Kelley stopped at the third one. The distance between the light pole and the front door of the auto dealership was approximately 38 feet. The distance between the light post and corner of 12th and Harrison (the next intersection down) was approximately 112 feet.

Defense counsel successfully moved to strike Pon’s testimony on the grounds that Kelley’s step retracing demonstration constituted hearsay. The prosecutor then asked that Pon’s testimony about the measurements from the door of the auto dealership to the light pole and from the door to the corner be allowed to remain as evidence. Defense counsel had no objection, and the court so ruled.

During his summation, the prosecutor discussed how far down 12th Street Kelly was on the night of the murder when he looked back and saw defendant. The prosecutor stated that Kelley “testified at this trial that he went back on November 15th of 1988 and he walked the scene again for the first time, and he said he got to approximately the light, the streetlight after the front doors of Cochran and Celli.” The prosecutor also returned to the issue in his rebuttal summation. He acknowledged that Kelley had, in his previous statements and testimony, indicated he was further down 12th Street when he saw defendant coming out of the bar. The prosecutor stated that Kelly’s latest account was “after we went with him for a walk to recreate the scene and he testified that he did not cross Harrison, that he stopped beyond the doors of Cochran and Celli, which is in the middle of the block.” Then, apparently referring to a diagram, the prosecutor presented a series of measurements concerning the distances to various points on 12th Street, at one point referring to the Pythagorean theorem to compute one of the distances. In support of his numbers, he stated, “I measured the distance where Kevin Kelley said he was now was [sic] as 124 yards or 371 feet, 124 yards.” He also stated that he had measured the distance to the corner of 12th and Harrison as 616 feet (approximately 200 yards), and that defense counsel had been incorrect in her summation in stating the distance as 559 feet. Holding up a golf ball, he used a golf analogy to dispute the defense argument that Kelley could not have seen defendant because he was too far down the street. He stated that 124 yards (the distance to the light post in front of the auto dealership) or even 200 yards (the approximate distance to the corner of 12th Street and Harrison) were distances from the tee from which golfers can see a one-inch golf flag at the hole.

(2) Analysis

Defendant contends the prosecutor relied on the stricken Pon testimony to misrepresent Kelley’s testimony, and that he also improperly vouched for Kelley’s testimony. We conclude that, in his description of Kelley’s testimony, the prosecutor added details from the stricken Pon testimony and at least one detail from the prosecutor’s own recollection as well. Kelley’s only reference to the reenactment was: “I retraced my, you know, steps and I just went to the same spot I thought I did that night.” The prosecutor added the details (1) that Kelley had gone to the scene with him and Pons, (2) that it was the first time Kelley had been back there, and (3) that Kelley stopped in front of a lamp post in front of the doors of the Cochran and Celli auto dealership.

Defense counsel never objected to the prosecutor’s comments about the reenactment during closing argument. Respondent, however, acknowledges that defense counsel had made several unsuccessful objections to other statements made by the prosecutor in closing argument on the grounds that he was misstating the evidence, and respondent concedes defendant’s point that any further objection as to these specific statements involving the reenactment would have been futile, as the court repeatedly had stated it was to going to adhere to its ruling that the jury had heard the evidence and could make up its own mind about the accuracy of the prosecutor’s statements.

Assuming the claim was preserved for review, we conclude defendant suffered no prejudice from the prosecutor’s comments. As to the first added detail, there was no dispute that the prosecutor and Pon were present at the reenactment, even though Kelley did not describe their presence in his brief reference to the reenactment during his testimony. This detail was not prejudicial to defendant. If anything, the fact the prosecutor was at the reenactment was consistent with the defense argument that the prosecution coached its witnesses.

The second detail (that it was Kelley’s first return to the scene) was implicit in Kelley’s answer in cross-examination about why his testimony at defendant’s trial was now different from his statements on previous occasions about his location, namely that something new had happened since the last time he testified (he had retraced his steps). But even if this detail added new information, any effect on the credibility of Kelley’s testimony was minimal.

As to the third detail about Kelley’s stopping in front of the doors of the dealership by the lamp post, Kelley had stated in his testimony that he had walked “three-quarters of the way down” 12th Street, “where that car dealer is.” Defense investigator Dea had testified that there were four street lights on each side of the blocks of 12th Street between Franklin and Harrison, which includes the block between Webster and Harrison. Thus, the prosecutor could permissibly draw the inference that Kelley had stopped at the third lamp post on the block between Webster and Harrison based on Kelley’s testimony and that of the defense investigator, even though Pon’s testimony had been stricken. As noted, the 38-foot distance from this lamp post to the door of the auto dealership was allowed to remain in evidence.

The prosecutor’s use of the golf analogy in his rebuttal was permissible. As we have held, prosecutors are entitled “ ‘ “during summation [to] state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history, or literature.” ’ ” (People v. Williams, supra, 16 Cal.4th at p. 221.) Furthermore, we see no prejudice from the distance arguments presented by the prosecutor. Defense investigator La Beaux had testified to a series of measurements she had taken using a roller tape from the Golden West Bar to several points down 12th Street. Both the prosecution and defense presented numerous maps and diagrams of the 12th Street area in the course of the trial. Thus, there remained a body of evidence from which the prosecutor could have drawn reasonable inferences about the distances involved, even though most of Pon’s testimony in this area had been stricken. While the exact source for every measurement the prosecutor used in his summation is unclear, defendant does not contest the accuracy of any of the measurements.

Finally defendant contends that the prosecutor’s statements about the distances, together with his assertions that he had personally measured them, had the effect of vouching for Kelley’s testimony about what he had seen on the night of the murder. Admittedly, the prosecutor displayed poor judgment in inserting himself into his closing argument. But, when viewed in context, his statements about personally measuring the distances in effect expressed the permissible argument that he had presented to the jury accurate computations about the distances. He did not make the impermissible argument that, because he had personally visited the scene and measured the distances, Kelley’s testimony must be true.

e. Misconduct During Closing Argument: Misrepresentation of Moody’s Testimony

During cross-examination of Moody, defense counsel introduced evidence of Moody’s numerous criminal violations for driving without a license and several charges of domestic violence and battery. For one series of charges for unauthorized entry and battery, which were pending in 1988, Moody explained that he was inside his own dwelling when someone jumped him from behind. In summation, the prosecutor alluded to this testimony, stating that Moody’s former girlfriend, Lola Power, and her father had attacked him in the house where he lived with Lola. Defense counsel objected that there was no such evidence in the record. The court overruled the objection, noting that when the issue came up of his assaulting or battering his wife, Moody tried to explain away his conduct, and defense counsel had asserted in her closing argument that at the time Moody was taken into custody in 1984 he had a case pending for domestic battery. Defense counsel stated that the pending case she referred to was for battery against his wife, not against his girlfriend Lola Power, an incident that happened later. The court replied that it was unclear as to whom Moody had been referring, and that the jury would have to sort it out.

We see no misconduct. It appears that the prosecutor was correct that the battery charge pending in 1988, which Moody attempted to explain away, related to the Lola Power incident. In overruling the objection, it appears the trial court became confused as to which incident defense counsel had referred to in her summation (which was actually the domestic battery charge pending in 1984). But we see no prejudice to defendant. As the trial court noted, the jury had heard all the evidence, and could draw the appropriate inferences about the arguments of counsel.

f. Other Asserted Misconduct

In addition to the asserted misconduct discussed above, defendant cites numerous other instances of asserted misconduct based on the prosecutor’s asking leading questions, misstating the evidence, and misstating the law. Defendant failed to object to many of the asserted leading questions he cites on appeal, thus forfeiting the claims. The trial court sustained defendant’s objections to some leading questions, thus obviating any prejudice. Regarding any asserted leading question cited on appeal to which the trial court overruled an objection, we see no abuse of discretion in the court’s rulings and no prejudice to defendant. We likewise see no prejudice from any of the leading question claims cited on appeal that were forfeited for failure to object.

As to the prosecutor’s asserted misstatements, defendant contends the prosecutor improperly read passages of Kelley’s prior testimony to the jury under the guise of refreshing Kelley’s recollection. But our review of the record indicates that the prosecutor followed the proper procedure for refreshing recollection by having Kelley first review the material silently and then asking him whether that had refreshed his recollection. (See People v. Parks (1971) 4 Cal.3d 955, 960-961.) There was no misconduct.

Finally, defendant contends the prosecutor misstated the law in two instances during closing argument. In the first instance, the prosecutor appeared to make the improper argument that defendant’s prior felony convictions could be used to support his motive for the robbery murder. But there was no prejudice to defendant, because the court sustained a timely defense objection and admonished the jury that defendant’s prior felony convictions were admitted, and were to be considered, solely for the purpose of impeaching his credibility.

In the second instance, defendant contends the prosecutor improperly argued that the mental state for robbery was the same as that for premeditated murder. Trial counsel did not object to the prosecutor’s argument and the claim is forfeited on appeal. It also fails on the merits. The prosecutor described defendant’s intentional act of opening the knife within the context of defendant’s plan to both commit a robbery and to eliminate the bartender as a witness by killing him. The prosecutor focused on defendant’s intent to use the knife in relation to the evidence of the nearly decapitated state of the victim in order to argue the inference that defendant had planned to use the knife not just to rob, but also to kill the victim.

2. Asserted Unreliability of the Testimony of Kevin Kelley

Defendant contends the testimony of Kevin Kelley was inherently unreliable and therefore constitutionally insufficient to support defendant’s conviction, special circumstance finding, and death sentence. Instead of presenting a traditional sufficiency of the evidence claim, however, defendant contends that the trial court should have excluded Kelley’s testimony as being inherently improbable. (See People v. Mayfield (1997) 14 Cal.4th 668, 735 [rejecting claim].) Defendant repeats at length the defense impeachment arguments made at trial that Kelley’s testimony was unreliable because it differed in some details from Kelley’s previous statements and prior testimony at other proceedings, and because Kelley received food and lodging money as a protected prosecution witness.

The impeachment arguments that defendant repeats against Kelley involve simple conflicts in the evidence that were for the jury to resolve. (See People v. Mayfield, supra, 14 Cal.4th at p. 736.) Of course, “it is not a proper appellate function to reassess the credibility of the witnesses.” (People v. Jones (1990) 51 Cal.3d 294, 314-315.) To the extent defendant also argues that Kelley’s testimony was inherently incredible, we reject that too. “ ‘ “To warrant the rejection of statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.” ’ ” (People v. Barnes (1986) 42 Cal.3d 284, 306.) Defendant fails to make such a showing.

3. Other Asserted Errors Related to Kelley’s Testimony

a. Instructional Errors

(1) CALJIC No. 2.13

Defendant contends that the court erred in instructing pursuant to CALJIC No. 2.13 on prior consistent or inconsistent statements as evidence. He complains that only telling the jurors that they could consider prior inconsistent statements for their “truth,” but not telling them they could also consider them for their “falsity,” unfairly skewed the jury’s credibility determinations in the prosecutor’s favor. However, we have previously rejected such claims by noting that “the instruction in no way directs the jury to accept prior statements as the truth; it merely covers the hearsay exceptions provided in Evidence Code sections 1235 and 1236, in a neutral fashion.” (People v. Harris (2008) 43 Cal.4th 1269, 1293, citing People v. Wilson (2008) 43 Cal.4th 1, 20-21.)

(2) CALJIC No. 3.11

Defendant contends the trial court erred at both the guilt and special circumstance trials by instructing the jury with an inadequate version of CALJIC No. 3.11. At the time the court gave the instruction at defendant’s guilt phase trial in 1988, CALJIC No. 3.11 read: “A defendant cannot be found guilty based upon the testimony of an accomplice unless such testimony is corroborated by other evidence that tends to connect such defendant with the commission of the offense.” (Ibid. (5th ed. 1988).) In People v. Andrews (1989) 49 Cal.3d 200, 214, we held that the corroboration requirement applied to both the in-court testimony and the out-of-court statements of accomplices. The 1990 revision of CALJIC No. 3.11 (1990 rev.) (5th ed. 1988) added the following optional paragraph: “Testimony of an accomplice includes any out-of-court statement purportedly made by an accomplice received for the purpose of proving that what the accomplice stated was true.”

Defendant contends the trial court erred in failing to give the second optional paragraph at both defendant’s guilt trial and his special circumstance retrial. As to the defendant’s guilt trial, defendant concedes that CALJIC No. 3.11 was not amended until after that trial. As to defendant’s special circumstance retrial, this trial did occur after the 1990 revision to CALJIC No. 3.11. However, we have held that a trial court has no sua sponte duty to modify the instructions on accomplice corroboration to indicate that they apply both to in-court and out-of-court statements. (People v. Lawley (2002) 27 Cal.4th 102, 160-61; People v. Andrews, supra, 49 Cal.3d at pp. 214-215.) Defendant was required to request the additional paragraph, which he did not do. (People v. Lawley, supra, 27 Cal.4th at p. 160.)

Moreover, even if we assume the trial court erred in not including the optional clarifying paragraph, such error was harmless. Kelley’s credibility was a central issue in both of defendant’s trials. Defense counsel exhaustively raised the inconsistencies between Kelley’s in-court testimony and out-of-court statements. Under these circumstances, the jury was already well aware that it was required to scrutinize all of Kelley’s statements, including especially his out-of-court statements. It is therefore not reasonably probable that the jury would have reached a result more favorable to defendant if they had been instructed with the additional instruction defendant urges. (People v. Lawley, supra, 27 Cal.4th at p. 161, citing People v. Watson (1956) 46 Cal.2d 818, 836.)

b. Improper Bolstering of Kelley’s Testimony by Other Prosecution Witnesses

Defendant contends the prosecution improperly bolstered the testimony of Kevin Kelley by calling three witnesses who had been members of the district attorney’s office at the time of Kelley’s arrest in connection with the Golden West murder: then Alameda County Superior Court Judge Joanne Parrilli, Deputy District Attorney Jerry Curtis, and Deputy District Attorney Angela Backers. As recounted above, Parrilli, Curtis, and Backers all testified that the district attorney’s office viewed Kelley as a witness rather than a participant in the robbery murder at the Golden West Bar, and that the office never made any promises of immunity to Kelley. As recounted above, the prosecution called these witnesses in its rebuttal case in response to the defense argument that the district attorney’s office promised Kelley immunity from prosecution in exchange for his testimony. Defendant acknowledges that the prosecutor was entitled to present evidence that Kelley was not offered immunity from prosecution, but argues that the testimony went beyond that to become irrelevant and improper vouching for Kelley’s version of events at the Golden West. We disagree. Defense counsel’s argument was not only that Kelley had been offered immunity but that the prosecutor could have prosecuted Kelley as an accomplice but agreed not to do so in exchange for his testimony. The testimony of Parrilli, Curtis, and Backers included the district attorney’s office’s assessment of Kelley’s involvement in the crime, which was that he was a witness, not a participant. The challenged testimony therefore was relevant to rebutting the defense argument that the prosecution had leverage over Kelley because it could have prosecuted him as an accessory in the robbery murder.

4. Asserted Unreliability of the Testimony of Thomas Moody and Leonard McCurry

Defendant contends that the testimony of Thomas Moody and Leonard McCurry was constitutionally insufficient to support defendant’s conviction, special circumstance finding, and death sentence. Defendant questions Moody’s motives and renews the arguments he made at trial that Moody testified falsely in exchange for the food and lodging benefits he received as a protected witness, and also in exchange for the prosecutor’s lenient treatment of various criminal charges (unrelated to the capital crime) pending against him. As for McCurry, defendant renews his argument that McCurry testified falsely in exchange for the prosecution’s arranging to have him serve out the remainder of his sentence in a prison closer to his family.

The jury heard all this evidence bearing on the credibility of Moody and McCurry, and, apparently, still chose to believe them. As we have noted, “it is not a proper appellate function to reassess the credibility of the witnesses.” (People v. Jones, supra, 51 Cal.3d at pp. 314-315.) “ ‘ “To warrant the rejection of statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.” ’ ” (People v. Barnes, supra, 42 Cal.3d at p. 306.) Defendant fails to make such a showing.

5. Asserted Carter Error

Defendant contends the trial court committed error under People v. Carter (1957) 48 Cal.2d 737 when it allowed the prosecutor to present, over objection, the testimony of Moody’s attorney, Richard Humphrey, in rebuttal. As recounted, ante at page 19, Attorney Humphrey testified he did not know Moody was a witness in a homicide case when he represented Moody on various misdemeanor and traffic charges, much less made any representations to the court or the prosecutor for leniency based on that fact.

In People v. Carter, supra, 48 Cal.2d 737, we disapproved of the prosecutorial tactic of intentionally withholding crucial evidence properly belonging in the case-in-chief to take unfair advantage of the defendant. (People v. Bunyard (1988) 45 Cal.3d 1189, 1211.) But Carter is inapplicable here. We have applied Carter only to “ ‘crucial’ ” or “ ‘material’ ” evidence [that] properly belonged only in the case-in-chief. (Bunyard, at p. 1212.) Here, the testimony of attorney Humphrey was not evidence that by itself established guilt or was directly probative of the crimes charged. (Ibid.) Rather, it was collateral evidence bearing on Moody’s credibility.

Defendant also contends that Humphrey’s testimony should have been excluded on the grounds of relevance. Defendant never objected on this ground below, and the claim is therefore forfeited. Moreover, the claim is meritless. Humphrey’s testimony was relevant to the defense argument that Moody had lied in his testimony in exchange for leniency by the prosecutor. The fact that Moody’s attorney was unaware of Moody’s status as a witness and never made any appeals for leniency based thereon was relevant to that issue.

6. Asserted Ineffective Assistance of Counsel Based on Conflict of Interest

Defendant contends that he was denied his right to the effective assistance of counsel based on a conflict of interest because his counsel, the Alameda County Public Defender’s Office, had previously represented prosecution witness Moody, and the fact of this previous representation precluded trial counsel from impeaching Moody concerning the prior arrest in which the office represented him. We conclude that, even if a conflict of interest existed, defendant was not prejudiced because defense counsel was able to impeach Moody with numerous other similar criminal convictions.

a. Background

During pretrial motions in the first trial, defense counsel informed the court that the public defender’s office had represented Moody in a hit-and-run case. A warrant was still outstanding for Moody for this incident when he was taken into custody by the police and gave statements about defendant’s involvement in the capital crime. Defense counsel stated she had not reviewed the public defender’s file on the case, but she looked at the court file, which indicated that Moody received three years’ probation and was ordered to pay restitution, which defense counsel considered a standard disposition in a hit-and-run case. She stated she would not argue that Moody’s sentence in the hit-and-run case was related to his being a prosecution witness. But she proposed that she be allowed to cross-examine Moody about the facts of the case and particularly about the fact that, although there was an warrant out for his arrest at the time he was taken into custody, he was released after he gave a statement to the police incriminating defendant. The prosecutor opposed this and indicated that if the court allowed her to proceed that way, the prosecutor would let the jury know that defense counsel was attacking a witness concerning a case in which her office had represented him.

The trial court ruled that no reference to the hit-and-run case should be made by either defense counsel or the prosecutor. The trial court was concerned that allowing defense counsel to examine Moody about the case would be impermissible as a conflict of interest. The court engaged in a balancing test under Evidence Code section 352 and determined it would be prejudicial to the public defender’s office to appear to be in a conflict of interest, and that, by extension, it would be prejudicial to defendant if defense counsel were seen as doing so. The court noted that defense counsel was proposing to impeach Moody with 16 other criminal cases, and that there was another warrant out for Moody’s arrest for another crime when he was taken into custody, which defense counsel could raise.

b. Analysis

“ ‘The right to effective assistance of counsel, secured by the Sixth Amendment to the federal Constitution, and article I, section 15 of the California Constitution, includes the right to representation that is free from conflicts of interest.’ ” (People v. Roldan (2005) 35 Cal.4th 646, 673, quoting People v. Cox (2003) 30 Cal.4th 916, 948, both disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) We agree defendant has shown “ ‘an actual conflict of interest’ ” here, that is, “a conflict that affected counsel’s performance — as opposed to a mere theoretical division of loyalties.” (Mickens v. Taylor (2002) 535 U.S. 162, 171, italics omitted.) Because of the conflict of interest created by the public defender’s office’s representation of Moody in the hit and run case, defense counsel was precluded from impeaching Moody with that case. Defendant contends that because of defense counsel’s actual conflict of interest, prejudice must be presumed. We disagree. In People v. Rundle (2008) 43 Cal.4th 76, 168-176 (disapproved on another ground in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22), we considered whether a showing of an actual conflict of interest necessarily results in a presumption of prejudice, and concluded that it does not. (Rundle, at p. 173.) Rather, “[o]nly when the court concludes that the possibility of prejudice and the corresponding difficulty in demonstrating such prejudice are sufficiently great compared to other more customary assessments of the detrimental effects of deficient performance by defense counsel, must the presumption be applied in order to safeguard the defendant’s fundamental right to the effective assistance of counsel under the Sixth Amendment.” (Ibid.) Here there was no possibility of great prejudice arising from the conflict nor was there any difficulty in assessing its detrimental effect. Its effect was limited to defense counsel’s being precluded from using one additional criminal case to impeach Moody. Because the presumption of prejudice is inapplicable here, we apply the usual second prong of the test for deficient performance of counsel, namely, whether there was “ ‘ “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” ’ ” (Id. at pp. 169-170, quoting Mickens v. Taylor, supra, at p. 166, quoting Strickland v. Washington (1984) 466 U.S. 668, 694.) We conclude there was no reasonable probability of a different result if defense counsel had impeached Moody about the one additional case. Defense counsel was not precluded from, and in fact did proceed to, impeach Moody with his numerous other criminal violations and with the fact that when he was questioned and later released by the police there was a warrant out for his arrest in another case.

7. Asserted Trial Court Error in Denying Defendant’s Request for a Jury Visit to the Area of the Crime

Defendant contends the trial court erred in denying the defense request for a jury visit to the area surrounding the Golden West Bar. Defense counsel proposed that the jury go to 12th Street to view what they could see from the various positions Kelley described in his testimony. In considering the request, the trial court discussed the difficulties of recreating the exact conditions under which Kelley made his observations four years previously, and noted that street lighting may have changed significantly in the intervening time. In response, defense counsel proposed that the visit could occur in the daytime, arguing that main issue for the defense was distance, not lighting. The trial court denied the request.

Section 1119 provides: “When, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, . . . it may order the jury to be conducted in a body . . . to the place . . . .” “A court’s ruling on a party’s motion for a jury view is reviewed for abuse of discretion,” that is, “whether the court exercised its discretion in an arbitrary, capricious, or patently absurd manner.” (People v. Lawley, supra, 27 Cal.4th at p. 158.) “ ‘When the purpose of the view is to test the veracity of a witness’s testimony about [his or her] observations . . . , the trial court may properly consider whether the conditions for the jury view will be substantially the same as those under which the witness made the observations, whether there are other means of testing the veracity of the witness’s testimony, and practical difficulties in conducting a jury view.’ ” (Ibid.)

The trial court did not abuse its discretion in denying the request. While practical difficulties did not particularly militate against the request (the area in question being close to the courthouse), the other factors did. As the court noted, it was uncertain how close the conditions the jury would have encountered would have been to those under which Kelley made his observations four years earlier. Defendant contends that trial counsel’s alternative request that the visit be conducted during daylight hours resolved any concerns in this area, but we disagree. Defendant presents no authority that lighting and distance are completely independent factors in determining visibility. Common sense suggests, rather, that visibility is affected by both lighting and distance. Neither does defendant produce any authority that whatever Kelley saw under the original conditions would necessarily be as apparent under other conditions. It is possible, for example, that the glint of a knife blade under a street light at night could stand out more prominently than it would from the same distance in bright daylight. In any event, alternative means of testing Kelley’s credibility were provided at trial by various witnesses, including two investigators from the public defender’s office (recounted, ante, at p. 16), who described, diagrammed, and photographed the scene.

8. Asserted Erroneous Exclusion of Evidence of Hollowhornbear’s Military Training

Defendant contends the trial court erred in excluding evidence of Hollowhornbear’s military training. Outside the presence of the jury, defense counsel moved to admit Hollowhornbear’s Army records to support the defense theory that Hollowhornbear, not defendant, killed the victim. The trial court observed that such records would be relevant if they reflected that Hollowhornbear had some training with the use of a knife or bayonet. The records, however, only indicated that he had received some sort of military training and that he had received a marksmanship badge for his skill with a rifle. There was no indication he had received training with a knife or bayonet. Defense counsel sought to supplement the military records with other documents describing the composition of basic combat training in the years that Hollowhornbear was in the service, and she made an offer of proof that she could call a witness to help in interpreting those documents. The trial court rejected the records and the offer of proof on the grounds that they would be unduly time consuming and would create substantial danger of confusing the issues and misleading the jury.

We see no abuse of discretion. The offered records did not indicate that Hollowhornbear had received training with a knife or bayonet. Defense counsel made an offer of proof to produce a witness to testify about the kinds of training that soldiers of that era generally received. But, as the trial court observed, such testimony would not have established what training Hollowhornbear actually received. It was well within the discretion of the court to exclude Hollowhornbear’s military records and the speculative testimony required to explain their possible relevance because presenting this evidence would have been time consuming and confusing to the jury.

9. Asserted Failure to Instruct Fully with CALJIC No. 3.31

Defendant contends the court inadequately instructed on the specific intent required for felony murder. Defendant contends that because he was charged with felony murder, the court had a sua sponte duty to give CALJIC No. 3.31 on the concurrence of act and specific intent, and to either refer to other instructions that state that felony murder requires the specific intent to commit the underlying felony of robbery, or to specifically spell out this requirement in the instruction. The court gave the following instruction based on CALJIC No. 3.31, which defendant contends was inadequate or misleading: “In the crime charged in Count One of the Information, namely Murder, there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator, and unless such mental state exists, the crime to which it relates is not committed. [] In the crime of Murder, the necessary mental state is to harbor malice aforethought, except in Felony-Murder, where the law imputes malice to a person who kills in perpetration of robbery or an attempt to perpetrate a robbery.”

The essence of defendant’s argument is that the court’s definition of felony murder in this instruction explained what felony murder is not, instead of defining what it is. But, as defendant acknowledges, the court elsewhere correctly defined first degree felony murder through CALJIC No. 8.21 (4th ed. 1979), which stated, in pertinent part: “The unlawful killing of a human being, whether intentional, unintentional, or accidental, which occurs as a result of the commission of or an attempt to commit the crime of robbery, and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the first degree.” Defendant maintains that the definition of felony murder in CALJIC No. 8.21 says nothing about the concurrence of act and specific intent. But, as we have noted, in determining the correctness of jury instructions, we consider the instructions as a whole. (People v. Hughes (2002) 27 Cal.4th 287, 360.) Taken together, the trial court’s giving of CALJIC Nos. 3.31 and 8.21 adequately instructed the jury on the concurrence of act and intent, and the specific intent required for felony murder.

10. Asserted Erroneous Refusal to Give Special Jury Instruction on After-acquired Felonious Intent

Defendant contends the trial court erred in refusing defendant’s request to give the following special jury instruction on after-acquired felonious intent: “The prosecution must also prove beyond a reasonable doubt that the intent to commit the crime of robbery arose before or during the commission of the acts which resulted in the death of the victim. If you have a reasonable doubt that the defendant formed the intent to commit robbery before or during the commission of such acts, you may not convict him of first degree murder based on the felony murder rule.”

The trial court rejected the proposed instruction, believing it was covered by the following jury instruction the court gave based on CALJIC No. 8.79 on the requisite specific intent to commit the underlying crime in felony murder: “Before the defendant may be found guilty of an unlawful killing of a human being as a result of the commission or attempt to commit the crime of robbery, you must take all the evidence into consideration and determine therefore if at the time of the commission or attempt to commit such crime the defendant did not form the specific intent to commit such crime. [] If, from all the evidence, you have a reasonable doubt whether the defendant formed such specific intent, you must give the defendant the benefit of that doubt and find that he did not have such specific intent.”

The trial court’s instruction is not a model of clarity and it is arguable whether it adequately addressed the issue of when the intent to steal had to be formed in relation to the murder. However, we need not reach that issue since the trial court also instructed with CALJIC Nos. 9.40 (robbery defined) and 8.21 (felony murder). As we have stated, “CALJIC Nos. 9.40 and 8.21 together ‘ “adequately cover the issue of the time of the formation of the intent to steal.” ’ ” (People v. Valdez (2004) 32 Cal.4th 73, 112, quoting People v. Hughes, supra, 27 Cal.4th at p. 359.) Because the issue was adequately covered by the existing instructions, the trial court did not err in refusing to give a duplicative special instruction. (See, e.g., People v. Carter (2003) 30 Cal.4th 1166, 1231; People v. Gurule (2002) 28 Cal.4th 557, 659-660.)

11. Asserted Failure to Instruct on Theft as a Lesser Included Offense of Robbery

Defendant contends the trial court erred in failing to instruct on theft as a lesser included offense of robbery. As we conclude below, because there was no substantial evidence supporting theft, the trial court was not required to instruct on it.

a. Background

At trial, the defense and the prosecution presented polar opposite theories about whether defendant had participated in a robbery. The prosecution theory was that defendant had formed the intent to rob the bar prior to fatally stabbing the bartender, and that the attack was motivated to facilitate the robbery and to eliminate the bartender as a witness. The prosecution theory was supported by the fact that a substantial amount of money and some liquor bottles had been taken from the bar, by Kelley’s testimony that defendant tried to enlist Kelley in the robbery, and by Kelley’s and Moody’s testimony that defendant admitted he committed the robbery and murder. In contrast, the defense theory, supported by defendant’s testimony, was that defendant had nothing to do with the robbery or murder. Defendant testified that he at no point had the intention to steal or rob from the bartender, and he denied taking any money or liquor bottles from the bar. Defendant testified he fled the bar when Hollowhornbear pulled a knife on the bartender after the bartender tried to prevent Hollowhornbear from taking a bottle from behind the bar. The defense theory was that Hollowhornbear killed the bartender and then stole the cash and alcohol.

b. Analysis

“A criminal defendant has a constitutional right to have his or her jury determine ‘every material issue presented by the evidence’ and this includes the right, where appropriate, to have the jury instructed on lesser included offenses.” (People v. Abilez (2007) 41 Cal.4th 472, 513.) “Theft is a lesser included offense of robbery.” (Id. at p. 514.) Accordingly, even in the absence of a request, the trial court has a sua sponte duty to instruct on theft as a lesser included offense of robbery if the evidence has raised “a question as to whether all of the elements of robbery were present and if there was evidence that would have justified a conviction of the lesser offense.” (Ibid.)

Defendant contends that the trial court should have instructed about theft because the jury could have found that defendant stole from the bar. Defendant argues the jury could have accepted most of defendant’s testimony but disbelieved defendant’s testimony that he had not taken any of the money. Defendant contends that the jury could have concluded there was a fight instigated by Hollowhornbear’s attempt to grab a bottle from the bar (as defendant described) but that (contrary to defendant’s testimony) defendant did participate in the fight and later decided to take some money.

The problem with defendant’s alternate scenario is that neither side presented substantial evidence to support it. As discussed, defendant presented no evidence that he decided to steal only after the murder; indeed, he categorically maintained he never took anything. Defendant now contends that the evidence the prosecutor presented that money and alcohol had been taken from the bar could have been considered by the jury, in isolation, to support the conclusion that defendant engaged in a theft. But there was no reason why the jury would have rejected the prosecution’s evidence that defendant committed a robbery. (People v. Abilez, supra, 41 Cal.4th at p. 514.) As we have stated, “ ‘if there is no proof, other than an unexplainable rejection of the prosecution’s evidence, that the offense was less than that charged, such instructions [on lesser included offenses] shall not be given.’ ” (Ibid., quoting People v. Kraft (2000) 23 Cal.4th 978, 1063.) Here based on the evidence presented, the jury was left with “an all-or-nothing choice”: the jury could either find that defendant had committed the robbery murder or it could find that he had committed no crime. (People v. Abilez, supra, 41 Cal.4th at p. 515.) There was no substantial evidence that defendant formed an intent to steal only after he or Hollowhornbear fatally stabbed the victim, and thus no factual predicate for instructing the jury on theft as a lesser included offense. (Id. at p. 514.)

12. Asserted Error in Instructing with CALJIC No. 4.22 (Definition of Voluntary Intoxication)

Defendant contends the trial court erred in instructing with CALJIC No. 4.22 (1981 rev.) (4th ed. 1979), which states: “Intoxication of a person is voluntary if it results from the willing use of any intoxicating liquor, drug or other substance, knowing that it is capable of an intoxicating effect, or when he willingly assumes the risk of that effect. [] Voluntary intoxication includes the voluntary ingestion, injecting or taking by any other means of any intoxicating liquor, drug or other substance.” Defendant contends that CALJIC No. 4.22 conflicted with CALJIC No. 4.21, which the court also gave, and which states that evidence of intoxication can create a reasonable doubt as to whether defendant had the required specific intent for a charged specific intent crime. Defendant contends the definition of voluntary intoxication in CALJIC No. 4.22, with its reference to “willingly assum[ing] the risk” of the effect of intoxication, would lead the jury to misunderstand or ignore CALJIC No. 4.21. We have previously rejected such a claim and do so again here. (People v. Harris, supra, 43 Cal.4th at pp. 1312-1313; People v. Cain (1995) 10 Cal.4th 1, 38-40.)

13. Asserted Error in Instructions on Consciousness of Guilt

Defendant contends the court should not have given two instructions on consciousness of guilt, CALJIC No. 2.06, on efforts to suppress evidence, and CALJIC No. 2.52, on flight after crime, because they were repetitive of other jury instructions about circumstantial evidence, were argumentative, and allowed the jury to draw irrational inferences. As defendant acknowledges, we have rejected similar claims in the past, and we do so again here. (People v. Rundle, supra, 43 Cal.4th at pp. 77-78 [CALJIC No. 2.52]; People v. Hughes, supra, 27 Cal.4th at p. 348 [CALJIC No. 2.06].)

14. Asserted Error in Instructing with CALJIC No. 2.51 (Consideration of Motive)

Defendant contends the court should not have given CALJIC No. 2.51, which allows the jury to consider the presence or absence of motive as a circumstance in the case that may establish guilt or innocence. Defendant contends this instruction is unconstitutional because it allows the jury to determine guilt based on motive alone, and lessens the prosecutor’s burden of proof. As defendant acknowledges, we have rejected similar claims in the past, and we do so again here. (People v. Riggs (2008) 44 Cal.4th 248, 314; People v. Cleveland (2004) 32 Cal.4th 704, 750.)

15. Unconstitutionality of Jury Instructions Assertedly Affecting the Reasonable Doubt Standard

Defendant contends that several standard CALJIC instructions violated his right, under In re Winship (1970) 397 U.S. 358, 364, not to be convicted of a crime on a standard of less than beyond a reasonable doubt. Defendant acknowledges we previously have rejected similar challenges to these instructions, but requests we change our position. We decline to do so and summarily reaffirm our previous holdings upholding the constitutionality of the following instructions: CALJIC No. 290 (People v. Whisenhunt (2008) 44 Cal.4th 174, 221); CALJIC Nos. 2.01, 2.02, 8.83, and 8.83.1 (People v. Nakahara (2003) 30 Cal.4th 705, 713-714; People v. Guerra, supra, 37 Cal.4th at p. 1139); CALJIC Nos. 1.00 and 2.51 (People v. Guerra, supra, 37 Cal.4th at p. 1139); CALJIC No. 2.21.1 (People v. Brasure (2008) 42 Cal.4th 1037, 1059, fn. 15); CALJIC Nos. 2.21.2, 2.22 (People v. Nakahara, supra, 30 Cal.4th at pp. 714-715; People v. Guerra, supra, 37 Cal.4th at pp. 1138-1139); CALJIC No. 2.27 (People v. Montiel (1993) 5 Cal.4th 877, 941; People v. Turner (1990) 50 Cal.3d 668, 697); and CALJIC No. 8.20 (People v. Nakahara, supra, 30 Cal.4th at p. 715).

16. Instruction on First Degree Murder

Defendant contends the trial court erroneously instructed on first degree murder because, while the information charged him with first degree murder in violation of section 187 (malice murder), it did not, he contends, cite the actual first degree murder statute (section 189) or allege the facts necessary for establishing first degree murder. As defendant acknowledges, however, we have consistently rejected such arguments and have concluded that a defendant may be convicted of first degree murder even though the indictment or information charges only murder with malice in violation of section 187. (People v. Whisenhunt, supra, 44 Cal.4th at pp. 165-66; People v. Hughes, supra, 27 Cal.4th at pp. 368-370; People v. Witt (1915) 170 Cal. 104, 107-108.) Defendant also contends that Apprendi v. New Jersey (2000) 530 U.S. 466, prohibits defendant’s conviction on an uncharged crime. His reliance on Apprendi, however, is misplaced because he was not convicted of an “uncharged crime.” (People v. Whisenhunt, supra, 44 Cal.4th at p. 222.)

17. Failure to Instruct on Unanimity for Theory of First Degree Murder

Defendant contends the trial court erred in failing to instruct the jury that it was required to agree unanimously as to whether defendant had committed a premeditated murder or a first degree felony murder. As defendant acknowledges, however, we previously have rejected the claim that a jury cannot return a valid verdict of first degree murder without first agreeing unanimously as to whether the defendant committed a premeditated murder or a felony murder. (People v. Nakahara, supra, 30 Cal.4th at pp. 712-713; People v. Kipp (2001) 26 Cal.4th 1100, 1132.)

18. Failure to Give Dewberry Instruction, CALJIC No. 8.71

Defendant contends the trial court erred in failing to give CALJIC No. 8.71, which instructs the jury that if they unanimously agree defendant committed murder but have a reasonable doubt whether murder was of the first or of the second degree, they should give the defendant the benefit of the doubt and return a verdict of second degree murder. We conclude the omitted instruction was adequately covered by the other instructions the court gave.

a. Background

After the court finished instructing the jury, it asked counsel whether all the instructions it had agreed to give to the jury were in fact given. Defense counsel noted the omission of CALJIC No. 8.71, one of the so-called Dewberry instructions (People v. Dewberry (1959) 51 Cal.2d 548). The court reviewed the instructions it had given related to Dewberry and lesser offenses. The trial court had instructed with CALJIC No. 8.70 on the duty of the jury as to the degree of murder, and pursuant to CALJIC No. 8.72 on doubt as to murder or manslaughter, but not with CALJIC No. 8.71 on doubt as to first or second degree murder. The trial court also gave an instruction pursuant to CALJIC No. 17.10, which stated, inter alia: “If the jury is not satisfied beyond a reasonable doubt that the defendant is guilty of the offense charged and it unanimously so finds, it may convict him of any lesser offense if the jury is convinced beyond a reasonable doubt that he is guilty of such lesser offense. [] The offense of murder in the second degree is a lesser offense of the offense charged in Count I. [] The offense of voluntary manslaughter is a lesser offense to the offense charged in Count I.” After considering the other instructions it had given, the court concluded that the content of CALJIC No. 8.71 was adequately covered.

b. Analysis

We held in People v. Dewberry that “a criminal defendant is entitled to the benefit of a jury’s reasonable doubt with respect to all crimes with lesser degrees or related or included offenses.” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1262, citing People v. Dewberry, supra, 51 Cal.2d at p. 556.) CALJIC Nos. 8.70, 8.71, and 8.72 instruct the jury as to the degrees of murder and this principle from Dewberry. CALJIC No. 8.70 describes the two degrees of murder and instructs the jury, if they find defendant guilty of murder, to state in the verdict the degree of which they are finding him guilty. CALJIC Nos. 8.71 and 8.72 apply the Dewberry benefit of the doubt principle to deciding between first and second degree murder and between murder and manslaughter, respectively. It is true that the trial court omitted CALJIC No. 8.71 with its specific application of the Dewberry principle to second degree murder. But the court instructed with CALJIC No. 17.10, which stated the general principle that if the jury was not satisfied beyond a reasonable doubt that defendant was guilty of first degree murder (Count One) it could convict him of a lesser offense if it was convinced beyond a reasonable doubt that he was guilty of that lesser offense. CALJIC No. 17.10 then specified the two available lesser offenses as either second degree murder or voluntary manslaughter. This instruction told the jury that both of these two lesser offenses were conclusions the jury could reach if it had a reasonable doubt whether defendant was guilty of first degree murder. Furthermore, two other instructions the court gave, a modified version of CALJIC No. 8.79 on felony murder and felonious intent (ante, p. 57) and a modified version of CALJIC No. 4.21 on voluntary intoxication and specific intent (ante, p. 61, fn. 27) also instructed the jury on the general principle that if, from all the evidence, it had a reasonable doubt whether defendant formed a specific intent or mental state, it must give him the benefit of that doubt and find he did not have that specific intent or mental state. Thus, despite the court’s omission of CALJIC No. 8.71, the jury would have understood that the Dewberry benefit of the doubt principle was equally applicable both to the choice between first and second degree murder, and between murder and manslaughter.

B. Second Trial : Special Circumstance Retrial (Guilt Phase)

1. Asserted Witt Error

Defendant contends the trial court erred in excusing 10 prospective jurors based on their views concerning the death penalty. As we explain, we conclude the trial court did not err in these rulings.

a. Witt Standard

The federal constitutional standard for dismissing a prospective juror for cause based on his or her views of capital punishment is “ ‘[w]hether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Uttecht v. Brown (2007) [551 U.S. 1, __] 127 S.Ct. 2218, 2223, citing Wainwright v. Witt (1985) 469 U.S. 412, 424.) Applying Witt, we have stated: “ ‘ “ ‘[a] prospective juror is properly excluded if he or she is unable to conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate.’ [Citation.]” In addition, “ ‘[o]n appeal, we will uphold the trial court’s ruling if it is fairly supported by the record, accepting as binding the trial court’s determination as to the prospective juror’s true state of mind when the prospective juror has made statements that are conflicting or ambiguous.’ [Citations.]” ’ ” (People v. Blair (2005) 36 Cal.4th 686, 743, quoting People v. Jenkins (2000) 22 Cal.4th, 900, 987.)

b. Asserted Error based on the Court’s Description of the Case

In its individual voir dire of the prospective jurors, the trial court used the following procedure: First, the trial court asked the prospective juror about his or her general feelings about imposing the death penalty. Next, the trial court presented a brief summary of the facts of the case, and asked the prospective juror whether he or she would be able to apply the death penalty for this particular kind of case. The court gave the following description of the case: Defendant and two other individuals went into the Golden West Bar; there was an altercation or confrontation and the bartender was robbed and fatally injured by having his throat cut almost to the point of decapitation. The court did not specify whether defendant was the actual perpetrator of the murder, but it informed prospective jurors that the previous jury had found defendant guilty of first degree murder and robbery, and had found he personally used a knife during the robbery and murder, and personally inflicted great bodily injury during the robbery.

Defendant contends that because the trial court’s sketch of the crime did not specify that defendant was the actual killer or shared the killer’s intent to kill, the sketch did not describe a death-eligible killing for this Carlos window case. Defendant further asserts that, in order to properly convey the gravity of the crime and evaluate prospective jurors’ willingness to apply the death penalty, the trial court should have specifically told prospective jurors that defendant personally committed the murder. Defendant contends that the trial court’s assertedly misleading “watered-down” account of the facts of the case caused Prospective Jurors F. S., F. W., H. S., and D. A., who had reasonable reservations about the death penalty, to express their unwillingness to apply it in this case. As we conclude below, we reject defendant’s contentions and uphold the trial court’s dismissal of these jurors.

(1) Facts

(a) Prospective Juror F. S.

In his questionnaire, F. S. wrote: “As a Jew, I am opposed to the death penalty.” Asked by the court about this statement, he stated that it was “probably true” that he would never vote for the death penalty. After the court explained aggravating and mitigating factors, and asked him whether he had any feelings about either the death penalty or life without the possibility of parole that he thought might prevent him from making a choice between those two penalties, he stated that he had “very strong biases about the death penalty.” The trial court then stated the concise version of the facts of the crime, as described, ante, at page 67. F. S. asked whether defendant was “the perpetrator of the crime or an accessory,” to which the trial court answered: “Well, that’s for the jury to decide. That’s what you are going to have to decide in this case.” The trial court asked F. S. whether the case as described came up to his “level of expectation” as to what a death penalty case should be, and he stated that it did not. Defense counsel sought to ask F. S. whether believing beyond a reasonable doubt that defendant was the actual perpetrator and not an accessory would allow him to keep both penalties in mind. The court sustained the prosecutor’s objection to this question on the ground that it would be asking the prospective juror to prejudge the evidence. The court then sustained the prosecution’s challenge for cause.

(b) Prospective Juror F. W.

The court asked F. W. whether he thought he could personally ever vote to execute another human being and he answered: “The possibility is yes, but I would say that’s very remote.” Following further questioning by the court, F. W. stated that he could vote to execute someone in “an appropriate case,” but went on to add that he had never heard of nor could he imagine a case in which he felt someone should receive the death penalty. The court recounted its description of the case, and asked him whether he could consider death as a possible penalty in this case. F. W. indicated that, based on those facts, he would say no to the death penalty. The defense posed no questions, and the trial court sustained the prosecutor’s challenge for cause.

(c) Prospective Juror H. S.

The court asked H. S. whether she could ever vote to execute another human being, to which she answered she did not think she could. After further questioning, she stated that if she was being asked to try Hitler she could vote for the death penalty, but in “all reasonable circumstances” she would vote no on the death penalty. Although she thought she was “not so rigid” that she would never under any circumstances vote for death, she was “not very prone to do it.” The court described the case, and asked her whether both penalties were still open to her. She indicated that the case as described did not have the gravity that would justify the death penalty. The defense posed no questions, and the trial court sustained the prosecutor’s challenge for cause.

(d) Prospective Juror D. A.

D. A. described her general feeling that she was more inclined towards life in prison and that “[i]t would have to be a very extreme thing” for her to vote for the death penalty. The court described the case, and asked her whether both penalties were still open to her. She stated she had eliminated the death penalty as a possible punishment because the case did not come up to her expectations of what a death penalty case would be. The defense posed no questions, and the trial court sustained the prosecutor’s challenge for cause.

(2) Analysis

We reject defendant’s initial general contention that the trial court’s description of the case was insufficient to support a death penalty under Carlos v. Superior Court, supra, 35 Cal.3d 131, for which intent to kill is an element of the robbery-murder special circumstance. The trial court explained to the prospective jurors that they would not even reach the penalty phase unless they found true the special circumstance that defendant committed “an intentional killing during the commission of a robbery.”

Turning to defendant’s challenge of the dismissals of Prospective Jurors F. S., F. W., H. S., and D. A., we conclude the trial court’s rulings were fairly supported by the record. (People v. Blair, supra, 36 Cal.4th at p. 743.) All of these jurors indicated their inability to apply the death penalty in the type of case described to them, but to the extent their responses can be seen as conflicting or ambiguous we accept the trial court’s determination of each juror’s true state of mind. (Ibid.)

We also reject defendant’s contention that the trial court’s assertedly misleading description of the case caused these jurors to express an unwillingness to impose the death penalty. First, this argument is speculative; we can only judge the views of prospective jurors based on what they actually said, not on what they might have said under other circumstances. Second, we reject defendant’s contention that the court’s description was misleading. As we have stated, death-qualification voir dire must avoid two extremes: on the one hand, it must not be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair the performance of their duties; on the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty. (People v. Zambrano, supra, 41 Cal.4th at pp. 1120-21.) We defer to the trial court’s discretion regarding the manner of conducting voir dire. (People v. Navarette (2003) 30 Cal.4th 458, 490; People v. Waidla (2000) 22 Cal.4th 690, 713-714.) Here the trial court gave a concise but accurate description of the case.

Defendant contends the trial court should have told the prospective jurors during voir dire that defendant personally committed the murder. The trial court, however, was within its discretion in declining to so characterize the case to the prospective jurors. The jury in the first trial made no specific finding that defendant had personally committed the murder. As the trial court indicated, who personally committed the murder remained an issue for the jurors in the special circumstance retrial to determine. We also see no error in the trial court’s sustaining of the prosecution objection to defense counsel’s asking Prospective Juror F. S. whether he would consider returning the death penalty against defendant if he believed beyond a reasonable doubt that defendant was the actual perpetrator of the murder. As noted, the trial court has wide discretion in the manner of conducting voir dire. (People v. Navarette, supra, 30 Cal.4th at p. 490.) Because the trial court thought the question would require the prospective juror to prejudge the evidence in the case, the court was within its discretion to exclude it.

c. Error Based on Lack of Sufficient Showing of Substantial Impairment

Defendant contends that the following six prospective jurors were dismissed in violation of Witt because their voir dire did not indicate their views on the death penalty would substantially impair their ability to perform their duties as jurors. As we conclude below, the trial court did not err in dismissing these jurors.

(1) Prospective Jurors R. A. and S. M.

The court engaged in a lengthy voir dire with R. A., in which she stated her ambivalence towards applying the death penalty. R. A. indicated that she was “slightly schizophrenic,” and that she always had “ two sides to [her] mind.” When the trial court reiterated the question whether she could vote for the death penalty if she felt it was the appropriate penalty in this case, she answered: “I think I can, but I don’t know if I’d like it. I don’t know if I’d like myself if I did it. I don’t know.” Over defense counsel’s objection, the trial court upheld the prosecutor’s challenge for cause, explaining she would be unable to make up her mind.

Prospective Juror S. M. stated numerous times that she did not know whether she could ever vote for the death penalty, and apologized for “vacillating.” Over the objection of defense counsel, the trial court upheld the prosecutor’s challenge for cause, explaining she would be unable to make up her mind.

The dismissals of R. A. and S. M. were fairly supported by the record. (People v. Blair, supra, 36 Cal.4th at p. 743.) The answers of both of these prospective jurors supported the trial court’s conclusion that they could not make up their minds whether they could ever vote for the penalty, even though the court gave them numerous opportunities to clarify their position. (See People v. Cunningham (2001) 25 Cal.4th 926, 980-981 [juror properly excused when court determined her to be “ ‘extremely indecisive’ ” on the death penalty].)

(2) Prospective Juror J. A.

In a lengthy voir dire, Prospective Juror J. A. indicated that he could only consider imposing the death penalty on a Ted Bundy-type serial murderer, whom the state previously had made “every possible effort” to rehabilitate. When the court asked him whether the current case came up to his expectations for a death penalty case, J. A. indicated that it was “almost impossible” for it to do so. Without objection by defense counsel, the trial court upheld the prosecutor’s challenge for cause. The record thus fairly supported the trial court’s dismissal of J. A. on the basis that he was unwilling to consider the death penalty for a defendant who had committed only one murder.

(3) Prospective Juror T. L.

In response to the court’s general question of whether she could ever vote to execute another human being, T. L. stated “probably not.” She indicated that choosing the death penalty would cause her “psychological distress,” which would “really haunt her for a long time.” She acknowledged she could not be fair and impartial in the case. Without objection by defense counsel, the trial court upheld the prosecutor’s challenge for cause. The record fairly supported the trial court’s dismissal of T. L. on the basis that her concerns about being haunted by her decision prevented her from considering the death penalty.

(4) Prospective Juror V. D.

V. D., a practicing Hindu, indicated on his questionnaire that he had to consult the elders in his religious community about serving on a death penalty trial. In voir dire, he told the court that the elders had told him his religion would not allow him to impose the death penalty. He said that he did not think he could impose the death penalty even if he felt it was deserved. Without objection by defense counsel, the trial court upheld the prosecutor’s challenge for cause. The record fairly supported the trial court’s dismissal of V. D. on the basis that his religious beliefs precluded him from applying the death penalty.

(5) Prospective Juror C. E.

In voir dire, although initially stating her willingness to impose both penalties, C. E.’s brief answers indicated a hesitancy that led the court and the prosecutor to ask further questions. She then stated she did not know whether she could vote for the death penalty, and ultimately said she could not select the death penalty even if she felt it was appropriate in the case. Without objection or questioning by defense counsel, the trial court upheld the prosecutor’s challenge for cause.

Defendant contends the trial court wore C. E. down by repeated questioning. But we conclude the dismissal of C. E. was fairly supported by the record. The court appropriately sought clarification of C. E.’s brief answers, and this further questioning revealed her inability to consider the death penalty as a sentencing option.

2. Asserted Prosecutorial Misconduct

a. Asserted Elicitation of Evidence Ruled Inadmissible

Defendant contends the prosecutor committed misconduct in the second trial by eliciting testimony about two areas that had been ruled inadmissible by the court’s in limine rulings in the first trial: (1) defendant’s prior incarceration and (2) his prior troubles at the Oasis convenience store.

(1) Defendant’s Prior Jail Time

In the second trial, defendant’s prior jail time was first mentioned during the prosecutor’s examination of Kelley, when, Kelley, in recalling his rejection of defendant’s proposal to rob the bar stated: “I said, I’m not interested. I’m trying to stay out of trouble. You just got out of jail. I tried to talk him out of it.” Defense counsel did not object to this testimony. Later, the prosecutor returned to the issue, and asked Kelley how long defendant had been out of jail. Defense counsel objected on the grounds that the question was not relevant and that it was prejudicial. The court initially overruled the objection. A few minutes later, when the prosecutor made another reference to defendant’s having gotten out of jail, defense counsel again objected that this was prejudicial. The court correctly observed that defense counsel had not objected the first time Kelley had mentioned it, but instructed the jury to disregard any reference to it, and asked the prosecutor not to bring it up. Later, at a session without the jury, defense counsel again objected to the prosecutor’s references to defendant’s prior jail time, and raised the issue that he thought there had been an in limine ruling in the first trial precluding mention of it. The trial judge explained that while he probably had made that ruling in the first trial, what he saw as the problem now was that defense counsel had not objected the first time it had been raised in the second trial. Defense counsel then moved for a mistrial, which the court denied. In closing argument, despite the court’s instruction, the prosecutor, in the course of condemning defendant’s moral code, mentioned defendant’s prior jail time again, stating “Kelley says: You can’t rob. You just got out of jail.”

We conclude defendant was not prejudiced. While it is true the trial judge stated he “just assumed that rulings [he] made [at the first trial] would be observed by the prosecution” at the second trial, defendant presents no authority that the rulings of the first trial were applicable to the second trial absent a stipulation by the parties to that effect. (Cf. People v. Humphries (1986) 185 Cal.App.3d 1315, 1329-1330 [the parties stipulated that in limine rulings of first trial court would apply to retrial], abrogated on another ground in People v. Carter, supra, 30 Cal.4th at p. 1197.) More importantly, as the trial court explained to defense counsel, the failure to object when defendant’s prior jail time was first mentioned during the second trial made it hard for the court to “unring [the] bell,” although the court did instruct the jury to disregard the references. As respondent acknowledges, the prosecutor’s reference to defendant’s prior jail time during summation violated the judge’s order. But the claim is forfeited for failure to object. Moreover, we conclude that there was no prejudice to defendant. The reference was brief, and the jury had been both generally instructed not to treat closing argument as evidence, and specifically instructed to disregard any reference to defendant’s prior jail time.

(2) Reference to Trouble at the Oasis

As discussed, ante, at pages 34-35, at the first trial, the court ruled that Kelley was not to mention that defendant was unwelcome at the Oasis convenience store because he had been caught stealing, although it permitted Kelley to testify generally that defendant had gotten into trouble there in the past. In the second trial, the prosecutor asked Kelley why defendant, Hollowhornbear, and Kelley had not gone to the Oasis. Defense counsel objected on relevance grounds, which was overruled, and then on hearsay grounds, which the court sustained. Later, at the end of the court day, outside the presence of the jury, the court recalled its ruling from the first trial, and instructed the prosecutor “not to mention anything about the Oasis” and “not to mention anything about Friend getting thrown out of the Oasis, the guy caught him stealing or something like that.” During the prosecutor’s redirect examination, he again asked Kelley why the group had not gone to the Oasis. Defense counsel objected, pointing to the court’s ruling in the first trial. The prosecutor rephrased the question as “Did Mr. Friend say that he couldn’t go to the Oasis bar or market,” and the court allowed this question.

The question the prosecutor asked Kelley at the second trial was clearly permissible under the court’s ruling at the first trial. Defendant points to the court’s broad instruction at one point in the second trial not to mention “anything about the Oasis.” But the trial court immediately followed that with the more specific instruction not to mention “the guy caught him stealing,” which was the same ruling as in the first trial. That the trial court merely meant to reiterate rather than broaden its ruling from the first trial is indicated by the fact the court permitted the question whether defendant had said he “couldn’t go” to the Oasis, which was a question that did not raise the issue of defendant’s past stealing there.

b. Asserted Impugning of Defendant’s Brother

Defendant contends the prosecutor engaged in misconduct by indirectly suggesting that defendant’s brother had killed Moody (who, as discussed, post, at pages 79-84, had gone missing before the second trial, and was declared an unavailable witness.) During his rebuttal summation, the prosecutor addressed the defense argument that the prosecution had put Moody in the victim/witness protection program and moved him into an apartment in Hayward as a benefit to Moody. The prosecutor referred to Moody’s statement that he had heard that defendant’s brother had been released from prison and that he was afraid for his own life. The prosecutor said that Moody would have been vulnerable if he had stayed in the warehouse, and that this was the reason the prosecutor had moved him to Hayward until his testimony. The prosecutor noted that, if a witness becomes unavailable after testifying, his testimony can be read into the record at the next trial. He then stated that he “was not by any stretch of the imagination trying to infer [sic] that Jerry Friend [defendant’s brother] had done anything to Moody,” but “that’s the point.”

Defense counsel failed to object and therefore defendant’s claim is forfeited on appeal. Moreover, on the merits, the prosecutor’s comments were proper. In order to rebut the defense argument that the prosecution had housed Moody as a benefit in exchange for Moody’s testimony, the prosecutor could properly present a legitimate security-related reason for housing Moody based on Moody’s expressed fear of being harmed by defendant brother. The prosecutor’s reference to Moody’s unavailability at the second trial in relation to defendant’s brother was a bit cryptic, but the prosecutor could properly emphasize the possibility of danger to Moody underlying the decision to house him in Hayward.

c. Asserted Attacks on Counsel

Defendant cites several instances of what he characterizes as the prosecutor’s attacks on defense counsel. We note that the trial court at one point admonished both the prosecutor and defense counsel “to start acting like lawyers” and to keep their personal comments to themselves. We have reviewed the instances defendant cites, and, while we cannot condone the prosecutor’s occasional sniping remarks, we conclude they do not amount to prejudicial misconduct.

d. Leading Questions

As with his claim of prosecutorial misconduct relating to his first trial, defendant presents several instances in the second trial of the prosecutor’s use of leading questions. Defense counsel’s repeated objections to leading questions were frequently sustained. Indeed, the court made sua sponte objections to some of the prosecutor’s questions as leading. Given this record, we conclude defendant suffered no prejudice.

3. Assertedly Erroneous Admission of Moody’s Testimony from the First Trial

As recounted, ante, at pages 8-9, Thomas Moody, a fellow alcoholic transient and associate of defendant’s at the warehouse, testified at defendant’s first trial that defendant admitted he committed the robbery murder. However, for the special circumstance retrial Moody could not be located. Following a hearing outside the presence of the jury, in which the prosecutor presented evidence of his unsuccessful efforts to find Moody, the court ruled that the prosecution had exercised due diligence in attempting to locate him, and declared him an unavailable witness. Moody’s testimony from the first trial was then read to the jury. Defendant contends the trial court erred, but, as we conclude below, Moody’s testimony from the first trial was properly admitted.

a. Background

On January 19, 1990 (which was about a year and a half before the special circumstance retrial commenced in the fall of 1991) the defense served a subpoena on Moody (who was then incarcerated at Santa Rita Jail) to appear as a witness at a discovery hearing to be held on March 26, 1990. Moody failed to appear, and the court eventually ordered that a warrant of attachment issue. On April 24, 1990, the sheriff attempted to serve the warrant at an address at which Moody’s father had once lived, but Moody was not there.

After several continuances, the special circumstance retrial was scheduled to begin in September 1991. In the summer of 1991, investigators from the district attorney’s office began searching for Moody, but were unable to find him. The prosecutor moved to have Moody declared an unavailable witness, and on February 26, 1992, the day before the jurors were sworn for his second trial, the court held a hearing on the motion.

Moody’s father, Dean Moody (Dean), testified that either in June or July of 1990, Moody stayed with him for about a week. Moody had a cast on his foot and was receiving treatment at a local hospital. One day Moody said he was going to the store, left the house, and never returned. Dean never saw or heard from him again. About a year later, in the summer of 1991, Dean was contacted by inspector Brierly of the district attorney’s office, who was trying to locate Moody. Dean then made some inquiries and drove by some of Moody’s old haunts, but with no results. Dean testified that, although Moody was an alcoholic transient, Moody had, until his disappearance in the summer of 1990, always contacted Dean at least once every six months, if only to borrow money.

Prosecutor Landswick testified that he last saw Moody in either May or June of 1990, when Moody unexpectedly dropped by his office. Landswick refused Moody’s request for money, but drove him to a garage where he was staying at the time in East Oakland or San Leandro. Landswick testified that because the special circumstance retrial was scheduled to begin in September 1991, his office had no reason to contact Moody until the summer of 1991, when they began to prepare for trial. At this point Landswick asked Inspector Richard Brierly to look for Moody. Up to this time, the investigators in the district attorney’s office had always succeeded in getting Moody to call them by contacting Moody’s father.

Robert Gannon, an inspector with the district attorney’s office, testified about his contacts with Moody. In October 1984, Gannon had put Moody into the witness protection program, and Gannon communicated with Moody into 1990. Moody would call him periodically to give him his new address and phone number, and sometimes asked for money. In 1990, Gannon met with Moody three or four times, and brought him in for interviews with Landswick. The last contact Gannon had with Moody was on July 17, 1990, when Moody called Gannon and told him he was staying at an address in Richmond. He told Gannon he was unemployable because he had a broken foot.

Inspector Brierly testified to an extensive but unsuccessful investigation he made to locate Moody beginning in July 1991 and continuing up to the time of the hearing in February 1992. Brierly contacted Moody’s family and friends, former employers, places of residence, hospitals, and jails. He ran Moody’s name through state and federal databases and contacted police in other major western cities.

b. Analysis

“A criminal defendant has the right under both the federal and state Constitutions to confront the witnesses against him [or her]. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) This right, however, is not absolute. The high court . . . reaffirmed the long-standing exception that ‘[t]estimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.’ ” (People v. Wilson (2005) 36 Cal.4th 309, 340, quoting Crawford v. Washington, supra, 541 U.S. at p. 59.) “Evidence Code section 1291 codifies this traditional exception.” (People v. Wilson, supra, 36 Cal.4th at p. 340.) “When the requirements of Evidence Code section 1291 are met, ‘admitting former testimony in evidence does not violate a defendant’s right of confrontation under the federal Constitution. [Citations.]’ ” (Ibid., quoting People v. Mayfield, supra, 14 Cal.4th at p. 742.)

“Evidence Code section 1291, subdivision (a)(2), provides that former testimony is not rendered inadmissible as hearsay if the declarant is ‘unavailable as a witness,’ and ‘[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.’ . . . Evidence Code section 240, subdivision (a)(5), provides that a declarant is ‘unavailable as a witness’ if [he or she] is ‘[a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court’s process.’ ” (People v. Wilson, supra, 36 Cal.4th at p. 341.)

“The term ‘reasonable diligence’ or ‘due diligence’ under Evidence Code section 240, subdivision (a)(5) ‘ “connotes persevering application, untiring efforts in good earnest, efforts of a substantial character. [Citations.]” ’ ” (People v. Wilson, supra, 36 Cal.4th at p. 341, quoting People v. Cromer (2001) 24 Cal.4th 889, 904 [“reasonable diligence same as due diligence”].) “Considerations relevant to this inquiry include the timeliness of the search, the importance of the proffered testimony, and whether leads of the witness’s possible location were competently explored.” (People v. Wilson, supra, 36 Cal.4th at p. 341.) “We independently review a trial court’s due diligence determination.” (Ibid.)

Defendant does not dispute that, during the period between July 1991 and February 1992 (when the due diligence hearing was held), the prosecutor made concerted efforts to locate Moody. Rather, defendant’s contention is the prosecutor failed to exercise due diligence in maintaining contact with Moody in the period from March 1990 (when Moody failed to respond to the subpoena for the pretrial discovery hearing) through July 1991 (when the prosecution first began to make concerted efforts to locate him). Additionally, defendant contends that the prosecutor should have taken some steps “to prevent Moody from absenting himself” in the period prior to defendant’s second trial.

As to whether the prosecutor should have maintained regular contact with Moody in the period between March 1990 and June 1991, we have noted that “[t]he prosecutor is not required ‘to keep “periodic tabs” on every material witness in a criminal case . . . .’ ” (People v. Wilson, supra, 36 Cal.4th at p. 342, quoting People v. Hovey (1988) 44 Cal.3d 543, 564.) We have also stated that when there is knowledge of “ ‘a substantial risk’ ” that an “ ‘important witness would flee,’ ” the prosecutor is required to “ ‘take adequate preventative measures’ to stop the witness from disappearing.” (Ibid.)

Here, however, the record does not reflect that the prosecutor had any knowledge of or reason to know of a substantial risk that Moody would flee or otherwise disappear. Defendant contends that Moody’s transient lifestyle generally created the risk that that Moody would permanently disappear. But testimony at the due diligence hearing established that, although Moody was a transient, he stayed within the general vicinity of Oakland and had maintained contact with various individuals such as his father and investigator Gannon.

Defendant points to the fact that Moody did not appear for the March 1990 discovery hearing, and contends that this should have put the prosecutor on notice that Moody was at risk of going missing. But both Prosecutor Landswick and investigator Gannon testified they had contact with Moody after that date (in May or June, and July of 1990) and that his general circumstances appeared unchanged. The fact that Moody had missed one hearing date did not create a substantial risk that he would permanently disappear.

Finally, defendant criticizes the prosecutor for waiting until July 11, 1991 to start actively searching for Moody. But this date was not unreasonable given that the second trial, which had been continued several times, was scheduled to begin in September of 1991. Based on our review of the record, we therefore conclude the prosecutor met the standard of due diligence and that the trial court therefore did not err in determining that Moody was “ ‘unavailable as a witness.’ ” (Evid. Code, § 240.)

4. Assertedly Erroneous Instructions on the Scope of the Jury’s Findings

With minor modification, the court instructed the jury at the special circumstance retrial with the same instructions it had given at the first trial. The court gave the full panoply of homicide instructions, including those on the two theories of first degree murder considered at the first trial: felony murder and premeditated and deliberate murder. Defendant contends that, beyond telling the second jury that defendant had been convicted of first degree murder, robbery, use of a knife and great bodily injury, the trial court should not have instructed the jury on any other substantive crimes. Alternatively, defendant contends that if the jury was to be instructed on a theory of first degree murder, the trial court should have instructed only on felony murder, not premeditated first degree murder, because, as defendant contends, the jury in the first trial convicted defendant on the former theory, not the latter. Finally, defendant contends that instructing the jury with both theories of first degree murder resulted in a directed verdict on the special circumstance allegation because the instructions implied that defendant had been found guilty under both theories. As we conclude below, the trial court did not err in its homicide instructions.

a. Assertedly Erroneous Homicide Instructions

(1) Background

Outside the presence of the jury, the court, the prosecutor, and defense counsel reviewed the jury instructions that had been agreed to, modified, and objected to. All agreed that, with some minor modifications, the vast majority of the jury instructions given at the first trial should also be given at the special circumstance retrial. In instructing the jurors on murder, the trial court stated: “I’m telling you this because we want you to know the theories that could be applied in this case.” The trial court also stated: “You know already that the defendant has been found guilty of murder of the first degree, and that’s another reason that we want to tell you the definition of what murder is.” The trial court told the jury not to speculate as to the reasons the prior jury reached the verdicts it did, and gave the following special defense instruction: “In your deliberations, you may not discuss, take into consideration or speculate as to the reason the prior jury reached the verdicts that were rendered in this case. [] Your verdict on whether the special circumstance is true or not true must be based solely on the evidence presented to you in this case.”

(2) Analysis

Section 190.4, subdivision (a), provides: “In any case in which the defendant has been found guilty by a jury, and the jury has been unable to reach an unanimous verdict that one or more of the special circumstances charged are true, and does not reach an unanimous verdict that all the special circumstances charged are not true, the court shall dismiss the jury and shall order a new jury impaneled to try the issues, but the issue of guilt shall not be tried by such jury . . . .”

Defendant presents no authority regarding instructing the jury about the principles of homicide at a special circumstance retrial. Generally, “[t]he court has a duty to see to it that the jury are ‘adequately informed on the law governing all elements of the case submitted to them to an extent necessary to enable them to perform their function in conformity with the applicable law.’ ” (5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 616, p. 880, quoting People v. Sanchez (1950) 35 Cal.2d 522, 528.) “The court should define sua sponte terms used in statutory definitions of an offense that have a technical or specialized meaning.” (5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 616, p. 881, citing numerous cases.) “Unlike words in common usage [citation], a word of technical or specialized meaning that is used in the statutory definition of an offense should be defined or explained, because this usually constitutes an element of the offense.” (5 Witkin & Epstein, Cal. Criminal Law, supra, Criminal Trial, § 634, p. 907, citing People v. Smith (1978) 78 Cal.App.3d 698, 710.)

We have observed that “special circumstances are sui generis — neither a crime, an enhancement, nor a sentencing factor.” (People v. Garcia (1984) 36 Cal.3d 539, 552.) However, as to jury instructions, we have also stated, “we do not believe the courts can extend a defendant less protection with regard to the elements of a special circumstance than for the elements of a criminal charge.” (Ibid.)

In order for a special circumstance allegation to be found true, the defendant must also have first been found guilty of first degree murder. (§ 190.2.) The jury at defendant’s special circumstance retrial was instructed with the following version of CALJIC No. 8.81.17 (1984 rev.) (4th ed. 1979): “To find that the special circumstance referred to in these instructions as murder in the commission of a robbery is true, it must be proved: [] (1), that the murder was committed while the defendant was engaged in the commission of a robbery; [] (2), that the defendant intended to kill a human being; [] (3), that the murder was committed in order to carry out or advance the commission of the crime of robbery or to facilitate the escape therefrom or to avoid detection. [] In other words, the special circumstances referred to in these instructions is not established if the robbery was merely incidental to the commission of the murder.” Because a finding of guilt of first degree murder was a necessary precondition to the special circumstance finding, the trial court did not err in instructing on first degree murder, a term that is clearly one of technical or specialized meaning. Furthermore, given the complicated law of homicide and the interrelated specialized legal definitions involved, the trial court did not err in giving the full panoply of homicide instructions. We therefore reject defendant’s contention that the trial court had no basis for instructing on homicide apart from the robbery-murder special circumstance itself.

We further note that providing the jury with the full panoply of homicide instructions did not, as defendant implies, violate the prohibition in section 190.4, subdivision (a), against having the second jury retry the issue of defendant’s guilt. The trial court gave the homicide instructions at the special circumstance retrial so that the jury would understand the scope of its task, not so that it would retry defendant’s guilt of the underlying first degree murder. However, even assuming that the jury could have used the homicide instructions to reconsider defendant’s guilt of the underlying murder, we fail to see any prejudice to defendant. Any reconsideration by the jury of defendant’s guilt of the underlying first degree murder could only have enhanced defendant’s chances of being acquitted of the special circumstance allegation.

b. Assertedly Erroneous Instruction on Premeditation and Deliberation

In the alternative, defendant argues that, while instruction on a felony-murder theory of first degree murder might have been appropriate, the trial court should not have also instructed on a theory of premeditated first degree murder, because, as defendant further argues, the first jury made special findings that it accepted the felony-murder theory but rejected the premeditation theory. As we conclude below, even assuming that the first jury’s verdict amounted to a finding that it accepted a felony murder theory, the first jury’s verdict did not present a finding, express or implied, that the first jury rejected the premeditation theory. Consequently, the trial court did not err in instructing the second jury on premeditated first degree murder.

(1) Background

At the first trial, the trial court used five different verdict forms for the murder count. Verdict form No. 1, which the jury used to convict defendant of first degree murder, contained, in relevant part, a verdict for first degree murder and a verdict for the robbery-murder special circumstance. The first degree murder verdict read: “We, the jury in the above entitled cause, find the defendant Jack Wayne Friend, GUILTY of a felony, to wit: First Degree Murder, a violation of Section 187 of the Penal Code of California, as charged in Count One of the Information.” Verdict form No. 2 contained the same verdict for first degree murder with the same phrasing but contained no verdict for the robbery-murder special circumstance. Verdict form No. 3 contained a verdict for second degree murder; verdict form No. 4 contained a verdict for voluntary manslaughter; and verdict form No. 5 contained a verdict of not guilty of murder.

The trial court gave the jury detailed instructions on how to use the murder verdict forms. The trial court explained that verdict form No. 1 was “based upon the theory of felony murder, that is, a killing committed during the commission of a robbery,” and further explained that the jury could only consider the robbery-murder special-circumstance allegation if the jury accepted this felony-murder theory. If the jury accepted the felony-murder theory, the trial court instructed the jury to go on to decide the special circumstance allegation (which was on the same verdict form) by deciding whether the murder was an intentional killing during the commission of a robbery. However, if the jury had a reasonable doubt whether the killing was done during the commission of the robbery, the trial court instructed the jury to “put away” verdict form No. 1 and “go on to the next verdict” (verdict form No. 2), which was the one for willful, deliberate, and premeditated murder. Verdict form No. 2 did not contain a special-circumstance allegation verdict because, as the trial court explained, the theory of first degree murder for this verdict form was not based on felony murder. If the jury had a reasonable doubt as to whether defendant was guilty of first degree murder, the court instructed that the jury should then consider second degree murder, and, if the jury had a reasonable doubt about second degree murder, it should then consider voluntary manslaughter. If the jury wanted to acquit defendant of all the murder charges, the court instructed the jury to use the verdict form finding him not guilty of murder. The court concluded by telling the jury: “Now whatever you do only bring me back one verdict as to each count. Now he’s either guilty or not guilty of Count One [Murder], so you can only have one verdict.”

(2) Analysis

Defendant contends that, because of the structure of the murder verdict forms and the trial court’s instructions, the fact that the first jury convicted defendant of first degree murder using verdict form No. 1 amounted to a special finding that the jury found defendant guilty on a felony-murder theory. However, even if we accept this contention, we need not and do not accept defendant’s further contention that the first jury also made a special finding rejecting the theory of premeditated first degree murder. Given the facts of the case, the felony-murder theory and the premeditated murder theory were not mutually exclusive. Indeed the prosecutor had expressly argued the applicability of both theories by contending that defendant committed the murder in the commission of a robbery and had premeditatedly killed the bartender to eliminate him as a witness to that robbery.

The trial court had instructed the jury to return only one verdict form on murder, and also instructed them to begin by considering first degree murder on a felony-murder theory. By the terms of the court’s instructions, once the jury agreed to first degree murder on the felony-murder theory, the jury was not required to go on to consider first degree murder on a premeditation theory. Indeed, even if the jury had gone on to consider premeditation, it had no way to express any finding on that theory since it was instructed to sign and return only one of the murder verdict forms. The premeditation theory of first degree murder therefore remained an unadjudicated issue. Because the first jury made no finding rejecting the premeditation theory of first degree murder, the trial court did not err in instructing the second jury with that theory.

c. Asserted Directed Verdict

Defendant contends that, by instructing on both theories of first degree murder, the trial court implied that defendant had been found guilty of both theories by the first jury. This, defendant contends, had the result of directing the verdict, since, if the jury assumed both theories of first degree murder, all the elements of the special-circumstance robbery-murder allegation would necessarily be satisfied. Defendant points to part of the court’s instruction that might, read out of context, be seen as implying that defendant had been convicted on both theories. But the record as a whole shows that the trial court clearly indicated to the jury that the two theories were possible bases for first degree murder.

d. Assertedly Misleading Felony-murder Instruction

The trial court instructed with the following modified version of CALJIC No. 3.31: “In the crime charged in Count One of the Information, namely Murder, there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator, and unless such mental state exists, the crime to which it relates is not committed. [] In the crime of Murder, the necessary mental state is to harbor malice aforethought, except in felony murder, where the law imputes malice to a person who kills in perpetration of a robbery or in an attempt to perpetrate a robbery.” Defendant contends the trial court erred by referring to malice in connection with felony murder, since our decision in People v. Dillon (1983) 34 Cal.3d 441 (Dillon) indicates malice is not an element of felony murder.

Dillon, a plurality opinion by Justice Mosk, addressed whether the felony-murder rule was unconstitutional because it shifted to the defendant the burden of disproving the element of malice. (Dillon, supra, 34 Cal.3d at pp. 472-473.) The defendant in Dillon pointed to many of our opinions that recited that malice was “presumed” (or similar cognate phrases, including “imputed”) by the operation of the felony murder rule. (Id. at p. 473 & fn. 20.) Dillon rejected the contention that these traditional phrases in themselves decided the constitutional issue, and concluded that the felony-murder rule did not involve an unconstitutional presumption because the so-called presumption of malice “is no more than a procedural fiction that masks a substantive reality, to wit, that as a matter of law malice is not an element of felony murder.” (Id. at p. 475.) In supporting this conclusion we noted that our prior “decisions had recognized this reality,” and we quoted from a prior opinion which stated, inter alia, that “ ‘[a]ttempts to explain the statute to the jury in terms of nonexistent “conclusive presumptions” tend more to confuse than to enlighten a jury unfamiliar with the inaccurate practice of stating rules of substantive law in terms of rules of evidence.’ ” (Ibid., quoting People v. Valentine (1946) 28 Cal.2d 121, 136.)

We therefore reject defendant’s contention that the trial court committed prejudicial error in instructing the jury that “the law imputes malice to a person who kills in perpetration of a robbery or in an attempt to perpetrate a robbery.” First of all, this is not an incorrect description of the law. Even after Dillon, we have occasionally used this traditional formula to describe the felony-murder rule. (See, e.g., People v. Hansen (1994) 9 Cal.4th 300, 308 [“The felony-murder rule imputes the requisite malice for a murder conviction to those who commit a homicide during the perpetration of a felony inherently dangerous to human life.”] overruled on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1199; but see also Hansen, at p. 320 (conc. & dis. opn. of Mosk, J. [preferring the formulation that the felony-murder rule is a “substitute” for malice aforethought.]) Recently, in the course of clarifying the second degree felony-murder rule, we observed that the felony-murder rule generally “ ‘acts as a substitute’ for conscious-disregard-for-life malice,” and therefore “describes a different form of malice under section 188.” (People v. Chun, supra, 45 Cal.4th at p. 1184, citing People v. Patterson (1989) 49 Cal.3d 615, 626.)

In light of Dillon, jury instructions on felony murder should avoid language suggesting that felony murder results in a conclusive presumption of malice. But, there was no danger that the jury would so understand the court’s instruction in the instant case. In addressing whether a jury instruction is misleading we consider “ ‘the entire charge of the court,’ ” not just a particular instruction or parts of an instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Here, the trial court instructed with CALJIC No. 8.10 (5th ed. 1988) on murder, which stated: “Every person who unlawfully kills a human being with malice aforethought or during the commission or attempted commission of robbery, a felony inherently dangerous to human life, is guilty of the crime of murder in violation of Section 187 of the Penal Code.” The court also instructed with CALJIC No. 8.21 (5th ed. 1988) on first degree felony murder: “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs during the commission or attempted commission of the crime of robbery is murder of the first degree when the perpetrator had the specific intent to commit such crime. [] The specific intent to commit robbery and the commission or attempted commission of such crime must be proved beyond a reasonable doubt.” These two instructions distinguished malice murder from felony murder, explained what the elements of felony murder were, and made it clear that malice aforethought was not an element of felony murder.

5. Asserted Failure to Instruct on Presumption of Innocence and Burden of Proof

Defendant contends the trial court erred in modifying the presumption of innocence instruction and in refusing to give a defense special instruction on the burden of proof for the special circumstance allegation. As we conclude below, the court did not err.

a. Background

For the special circumstance retrial, the trial court modified CALJIC No. 2.90 on the presumption of innocence and burden of proof, and CALJIC No. 8.80 on the robbery-murder special circumstance. CALJIC No. 2.90 has two paragraphs, the first setting forth the presumption of innocence, the second defining reasonable doubt. Over the objection of defense counsel, the court omitted the first paragraph, explaining “I’m not giving that because he’s already been found guilty. I’m giving the definition of what reasonable doubt is.” The defense proposed the following supplemental instruction to CALJIC No. 2.90: “This instruction on presumption of innocence and reasonable doubt applies in this case as follows: [] The special circumstance is presumed not to be true until the contrary is proved, and in case of a reasonable doubt whether the truth of the special circumstance is satisfactorily shown, the defendant is entitled to a finding that the special circumstance is not true. [] This presumption places upon the People the burden of proving the truth of the special circumstance beyond a reasonable doubt.” The court refused this instruction, explaining that it was “properly covered by the CALJIC instructions.”

For CALJIC No. 8.80 (5th ed. 1989), the court made the following two unobjected-to substitutions: For “If you find the defendant in this case guilty of murder of the first degree, you must then determine if the following special circumstance is true or not true,” the court substituted: “Now, the defendant in this case has been found guilty of murder of the first degree and robbery. You must determine that the following special circumstance is true or not true.” For “The People have the burden of proving the truth of a special circumstance,” the court substituted: “A special circumstance must be proved beyond a reasonable doubt.”

b. Analysis

“[T]he failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution.” (Kentucky v. Whorton (1979) 441 U.S. 786, 789 (per curiam).) In addressing this issue we have followed the United States Supreme Court’s approach in Taylor v. Kentucky (1978) 436 U.S. 478. “[D]ue process does not mandate the ‘use of the particular phrase “presumption of innocence” — or any other form of words . . . .’ [Citations.] Rather, this traditional formulation ‘simply represents one means of protecting the accused’s constitutional right to be judged solely on the basis of proof adduced at trial.’ [Citation.] Accordingly, we decline defendant’s implicit invitation to confine instruction on the presumption of innocence to any rigid or narrowly precise terms. [Citation.] As long as the court’s charge to the jury conveys the substance of the principle, it will satisfy due process.” (People v. Hawthorne (1992) 4 Cal.4th 43, 72, quoting Taylor v. Kentucky, supra, 436 U.S. at pp. 485-486.)

We therefore reject defendant’s contention that the omission of the traditional presumption of innocence language violated defendant’s due process rights. As recounted above, the court properly instructed the jury pursuant to CALJIC No. 8.80 that “[a] special circumstance must be proved beyond a reasonable doubt.” The court properly instructed on the definition of reasonable doubt, giving the second paragraph of CALJIC No. 2.90. The court also instructed the jury pursuant to CALJIC No. 2.11.5 that its “sole duty is to decide whether the People have proved the truth of the special circumstance in this trial” and pursuant to CALJIC No. 2.61 that “the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him.” These instructions conveyed the substance of the principle of the presumption of innocence. (People v. Hawthorne, supra, 4 Cal.4th at p. 72.)

Defendant also criticizes the court’s decision to delete the presumption of innocence language from CALJIC No. 2.90 as being inexplicable. But the court made its reasoning clear. Defendant had been found guilty of first degree murder and the other charges in the first trial. As discussed above, section 190.4, subdivision (a) prohibited the jury from reconsidering defendant’s guilt for these charges in the special circumstance retrial. The court considered that the traditional presumption of innocence language in the first paragraph of CALJIC No. 2.90 might cause the jurors to violate section 190.4, subdivision (a) or otherwise confuse them as to the scope of their duty in the special circumstance retrial. The court therefore decided to omit the first paragraph of CALJIC No. 2.90 based on those concerns.

6. Assertedly Erroneous Instruction on the Robbery-Murder Special Circumstance

As discussed and quoted above, ante, at page 101, the trial court instructed with CALJIC No. 8.81.17 on the robbery-murder special circumstance. Defendant contends the lack of the conjunction “and” between the three elements of the instruction led the jury to believe that there was an implied “or” (disjunctive) between the three elements, and that the instruction therefore impermissibly allowed the jury to find the special circumstance allegation true based on only one element.

Using the disjunctive (or) between the elements of CALJIC No. 8.81.17 would indeed be inappropriate. (People v. Raley (1992) 2 Cal.4th 870, 903.) But the trial court did not use the disjunctive. Defendant’s contention is that the lack of any grammatical connectors between the elements made the instruction unclear and misled the jury. When reviewing a claim based on assertedly ambiguous instructions, we inquire whether the jury was reasonably likely to have construed them in a manner that violates the defendant’s rights. (People v. Rogers (2006) 39 Cal.4th 826, 873.) Applying this standard, we conclude it was not reasonably likely the jury understood the elements to be in the disjunctive. Absent the insertion of express disjunctives, the listing of three separate elements that must be proved clearly implied that proof of each was independently necessary. We therefore reject defendant’s contention.

C. Second Trial: Penalty Phase

1. Asserted Prosecutorial Misconduct

a. Asserted Improper Comment

Defendant contends the prosecutor engaged in misconduct by commenting during the examination of a witness that defendant was a “danger” while in prison. The prosecution had called Sheriff’s Deputy Allen Boyd, who was in charge of classifying prisoners at the jail where defendant was incarcerated while awaiting trial. Boyd had interviewed defendant after he had threatened to stab fellow inmate Mario Holland in the neck with a pair of fingernail clippers. Boyd said defendant warned that some of the other inmates in his pod were antagonizing him and that someone would get killed because he would kill someone before he got hurt or killed himself. The prosecutor then asked whether and why Boyd had reclassified defendant after receiving this information, and defense counsel successfully objected to this line of questioning as irrelevant. The court noted that Boyd’s reclassification of defendant was not an aggravating factor, to which the prosecutor replied, “Because Mr. Friend is a danger — .” The trial court cut him off, informed the jurors to disregard the comment, and instructed them that it was their job to decide whether or not defendant was a danger. Later, outside of the presence of the jury, defense counsel moved for a mistrial. The trial court acknowledged that it was inappropriate for the prosecutor to have said that defendant was a danger, but overruled the motion because the trial court had adequately admonished the jury as to the comment. We agree with the trial court. The prosecutor’s comment constituted error, but the court’s admonition cured any prejudice to defendant.

b. Asserted Improper Cross-examination of Defendant at the Penalty Phase

Defendant contends the prosecutor engaged in misconduct by improperly cross-examining defendant on various topics including his tattoos, his interest in Satanism, the Ku Klux Klan, and statements that defendant had allegedly made to several of his probation officers. Defense counsel unsuccessfully objected to many of these questions on grounds of relevance. On appeal, defendant contends the prosecutor’s questions on these topics were misconduct because he did not have a good faith belief in the facts underlying the questions. As we have stated, “ ‘[i]t is improper for a prosecutor to ask questions of a witness that suggest facts harmful to a defendant, absent a good faith belief that such facts exist.’ ” (People v. Bolden (2002) 29 Cal.4th 515, 562, quoting People v. Warren (1988) 45 Cal.3d 471, 480.) “ ‘But if the defense does not object, and the prosecutor is not asked to justify the question, a reviewing court is rarely able to determine whether this form of misconduct has occurred. [Citation.] Therefore, a claim of misconduct on this basis is waived absent a timely and specific objection during the trial.’ ” (People v. Bolden, supra, 29 Cal. 4th at p. 562, quoting People v. Price (1991) 1 Cal.4th 324, 481.) As we conclude below, defendant’s claim is forfeited because trial counsel failed to object on this ground. Moreover, the requisite “good faith” can be inferred from the record because “the factual specificity of the prosecutor’s questions implies they were based on information obtained during the prosecutor’s review of records available to the defense.” (People v. Hughes, supra, 27 Cal.4th at p. 388; People v. Mickle (1991) 54 Cal.3d 140, 191.)

(1) Tattoos and Books on Satanism

On direct examination, defendant stated that he was missing some teeth. On cross-examination, the prosecutor asked defendant whether that was because of tattoos inside his mouth. Defendant answered no, and the prosecutor asked him what was tattooed inside of his mouth. Defense counsel’s objection was overruled. The prosecutor asked, “It’s ‘fuck you,’ isn’t it?” Defendant answered, “I don’t know. Is it?” Defense counsel objected that the question was irrelevant and beyond the scope of direct examination, but was overruled. The court ruled the questions were permissible cross-examination because they pertained to defendant’s testimony about his religious leanings. The court sustained a defense objection to the prosecutor’s next question of what defendant had tattooed on his penis, but allowed the question of how many times defendant had tattooed “fuck you” on his body. Defendant refused to answer that question, and the court instructed the jury that it could take into consideration the fact that defendant refused to answer a question in assessing his credibility in the case.

The prosecutor then asked defendant whether he had possessed any books on Satanism in his cell since his incarceration. Defense counsel objected, once again on relevancy grounds and as beyond the scope of direct examination. The trial court overruled the objection, noting again that defendant had emphasized his Christianity in his direct testimony. Defendant stated he did have such books because he was researching Satanism and its effect on people.

As noted, defense counsel only objected on the ground of relevance, not on the ground that the prosecutor had no factual basis for these lines of questioning, and defendant therefore has forfeited his claim. Moreover, on the merits, we infer the prosecutor had a good faith belief in the factual basis of his questions because of the factual specificity of his questions. (People v. Hughes, supra, 27 Cal.4th at p. 388; People v. Mickle, supra, 54 Cal.3d at p. 191.)

(2) Ku Klux Klan and Other White Supremacist Groups

Without objection, the prosecutor asked defendant whether he had been a member of the Ku Klux Klan, and defendant answered yes. The prosecutor sought to ask defendant whether he was a White supremacist or member of the J. B. Stoner’s National States Rights Party, but the court sustained defense relevancy objections. Because defendant failed to object below on the basis the prosecutor lacked a good faith belief in a factual basis for these questions, he has forfeited his claim for purpose of this appeal. Moreover, the jury was admonished to disregard the prosecutor’s reference to the J. B. Stoner’s National States Rights Party, so defendant was not prejudiced.

(3) Letters to Probation Officers

The prosecutor asked defendant whether he had made statements to several of his probation officers in the past indicating his intention to reform himself based on his religious convictions, and showed him letters in which the purported statements were made. Defendant denied authorship of both letters. Defense counsel objected to the second letter on the grounds that it was not written by defendant and had not been authenticated. The court ruled that defense counsel could question defendant about whether he had ever made the representations indicated in the letter, which defendant then also denied making. Although defense counsel strenuously objected on the grounds that defendant had not in fact written the l