California’s Three Strikes Reform in Application

California made a major reform of its “Three Strikes” law through a ballot initiative known as Proposition 36 in 2012.  The reform required that the third strike, or third crime for which a person is convicted, must be a serious and/or violent felony as defined by the California Penal Code.  The reform applies both prospectively, to future criminal defendants, as well as retroactively, applying to people currently incarcerated.  The new law allows for people who are currently serving an indeterminate term for life to request a recall of their sentence if the third strike was not a serious and violent felony.  As a result of this law, several people who feel that they are eligible for their sentence to be reduced have applied for the recall provided for in the “Three Strikes” reform initiative.  This article is a review of some of those cases.  For the latest legal news, please continue to visit our blog at LA Jewish Lawyer.  Please also contact us for a FREE CONSULTATION on your legal issue at 855-977-1212.

Several different Courts of Appeal have reviewed petitions from inmates convicted under the Three Strikes law.  One issue that came before the Second Appellate District was how to define a serious and/or violent felony.  Braziel v. Superior Court, ___ Cal. App. 4th ___ (2014) (Second Appellate District filed 4/23/14). Yesterday, a number of cases have been heard in the Fifth Appellate District concerning whether a person was “armed” during the commission of the crime for which s/he was convicted. E.g. People v. Superior Court, ___ Cal. App. 4th ___ (2014) (Fifth Appellate District filed 4/24/14) (“Cervantes”); People v. Superior Court, ___ Cal. App. 4th ___ (2014) (Fifth Appellate District filed 4/24/14) (“Martinez”).

The Second Appellate District clarified how to define a serious and/or violent crime in Braziel.  On August 4, 1999, Homer Braziel was convicted of assault by means to produce great bodily injury, assault with a deadly weapon and making a criminal threat (at the time “making a terrorist threat”).  On May 7, 2013, Braziel petitioned for a recall of his 25 years to life sentence.  He argued that since making a criminal threat was not defined as a serious crime at the time of his conviction he should be eligible to have his sentence recalled for not committing a serious crime with his third strike. In March 2000, “making a terrorist threat” (the crime of which Braziel was convicted) became the crime of making a criminal threat and was upgraded to a serious and violent felony under Proposition 21.  The issue before the Second District Court of Appeal was should a Court use the definition of whether a crime is serious and violent based on what it was at the time of the petitioner’s conviction or what it is was at the time of the petition to recall one’s sentence.

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The Second Appellate District reviewed Proposition 36 and other relevant statutes to determine if it could grant Braziel’s petition.  Proposition 36 states that people who are convicted and sentenced under the the Three Strikes law are able to petition for a recall of their sentence if the felony or felonies for which s/he were convicted “are not defined as serious and/or violent” by the California Penal Code. The use of the present tense indicates that whether a felony is serious and/or violent depends on if it was defined as such at the time of the petition.  If the authors of the initiative had meant for the definition of the crime as serious and/or violent to be determined by what it was at the time of the conviction, then they would have used the past tense.  Therefore, a determination of whether a third strike conviction is for a crime that is serious and/or violent is made based on how the crime was defined at the time of the petition. For the reasons above, the Second Appellate District denied Braziel’s petition for a recall of his sentence.  

On April 24, 2014, the Fifth Appellate District delivered its opinion in five different cases (two of which are cited above) in which an inmate petitioned for a recall of his sentence.  In each case, the prisoner did not commit a serious and/or violent felony as defined by the California Penal Code.  Yet, Proposition 36 imposes an indeterminate sentence of life if the felony was committed while the person was armed with a firearm, even if the offense for which the person was convicted was not a serious and/or violent felony.  The question before the Fifth Appellate District in those cases was if the prisoner could be said to be have been “armed with a deadly weapon” despite the fact that no weapon was found on his person at the time of the arrest.  

Each of the petitioners that came before the Fifth Appellate District were eligible for a recall of his sentence, yet the facts of each case show that a weapon was close by the person at the time of his arrest.  In Cervantes, a hand gun was found in Cervantes wife’s purse in an adjacent bedroom.  In Martinez, a sawed-off shotgun was in the same room as Martinez at the time of his arrest, as well as, another sawed-off shotgun and a hunting rifle located in the closet of his residence.  The other three cases published yesterday had similar facts.  In none of the cases was a firearm found on the inmate’s person.  The Court ruled that as long as the firearm is “available for immediate offensive or defensive use” at the time of the commission of the felony, then the person was “armed with a firearm” for the purposes of the Three Strikes Reform.  Thus, each of the prisoners petitioning for a recall of their sentences were denied, because they lost eligibility when they were armed with a firearm during the commission of their felony.   

We at LA Jewish Lawyer will continue to review the cases from the Three Strikes Reform and will bring to you information about the initiative’s progress.  For further information about the latest legal developments, continue to visit our blog.  Please also contact us  at 855-977-1212 to receive a FREE CONSULTATION on your Employment Law issue.

Pregnancy Discrimination Ends in Florida

Until last week, the Florida law was unclear on whether discrimination against pregnancy violated the Florida Civil Rights Act (“FCRA”) prohibition against discrimination based on sex.  Under federal law and in most states, a woman may not be discriminated in employment due to a pregnancy.  In Florida, some courts have held that discrimination based on pregnancy violates the state law against sex discrimination and other courts have held that pregnancy discrimination does not violate the law.  That question was finally decided in Delva v. The Continental Group, Inc., No. SC12-2315 (Fla. Apr. 17, 2014). Please contact our network of Employment Law Lawyers for more in-depth information on employment discrimination and a FREE CONSULTATION on other Employment Law issues.

The facts in Delva are as follows: Peguy Delva became pregnant while she worked as a front desk manager for a residential property of The Continental Group, Inc. Once her supervisors at Continental became aware of her pregnancy, they conducted heightened scrutiny of her work, would not allow her to change shifts or work extra shifts despite Continental’s policy allowing it and refused to schedule her after her maternity leave.  Delva filed a lawsuit against The Continental Group, Inc. in 2011.  The trial court dismissed her suit for failure to state a claim and the Third District Court of Appeal affirmed the trial court’s finding.  The trial court and appellate court ruled that the FCRA’s prohibition against sex discrimination does not extend to pregnancy discrimination.  The Third District also certified that its holding was in conflict with a recent holding from the Fourth District Court of Appeal that ruled that pregnancy was to be considered sex discrimination.

The Florida Supreme Court heard the case in order to end the conflict between appellate courts that has existed for several decades as to whether the FCRA protects against pregnancy discrimination.  Both Florida state courts and federal courts that dealt with the FCRA have ruled on this issue differently and all because of a 1976 U.S. Supreme Court opinion.  In 1964, the U.S. Congress passed the federal Civil Rights Act (“CRA”), which among other things outlawed discrimination based on sex.  In 1976, the U.S. Supreme Court heard General Electric Company v. Gilbert, 429 U.S. 125 (1976), in which the Court ruled that the CRA’s prohibition against.sex discrimination did not extend to protect women from discrimination due to pregnancy.  The Congress subsequently added a statute to prevent discrimination based on pregnancy in 1978.  Florida’s Civil Rights Act (known at the time as the Human Rights Act of 1977) was patterned on the federal CRA.  Like the CRA, the FCRA included an explicit prohibition against sex discrimination, but not against discrimination based on pregnancy.  Unlike the federal government, the Florida legislature did not add a statute specifically to protect against pregnancy discrimination.  This would lead to conflicts among different districts in state court and some federal district courts.

With Delva, the Florida Supreme Court decided to settle whether pregnant women are a protected class under the FCRA.  First, the Court looked at section 760.01(3), which states that the FCRA should be “liberally construed” in order to ensure that it purpose of preventing discrimination is achieved.  Next, it looked at the specific language of the statute on sex discrimination and how other state supreme courts have interpreted similar laws.  The Florida Supreme Court adopted the reasoning of the Massachusetts Supreme Court that pregnancy is a natural condition that is unique to women.  Furthermore, the Court agreed with the Minnesota Supreme Court that allowing discrimination based on pregnancy would undermine the FCRA’s prohibition against sex discrimination.  For these reasons, the Florida Supreme Court overturned the Third District Court of Appeal holding in Delva and reinstated her case.

With Delva, the Florida Supreme Court has resolved a decades long conflict among various state and federal courts dealing with the FCRA.  Florida has firmly established that pregnant women may not be discriminated against in the workplace. For further information about the latest legal developments, continue to visit our blog.  Please also contact us to receive a FREE CONSULTATION on your Employment Law issue.

Wrongful Foreclosure and Specificity

The perils of mistakes in foreclosures were on display in two cases recently published by the California Supreme Court.  The mortgage crisis that precipitated from the economic collapse of 2008 has led to a large number of lawsuits concerning the ownership and possession of real property.  California is a non-judicial foreclosure state, which means that the party trying to foreclose does not need to file a lawsuit in order to foreclose on a property.  Another important difference between judicial and non-judicial foreclosure is that a non-judicial foreclosure is initiated by a trustee while judicial foreclosure is initiated by the lender. The trustee in a non-judicial foreclosure has a fiduciary responsibility to both the lender and the borrower and is supposed to be independent of both.

Despite being a non-judicial foreclosure state, many foreclosures end up in the California court system due to unlawful detainer complaints after the property was foreclosed on or in a wrongful foreclosure or similar action.  When those cases arrive before the courts, you need to make sure that the documents are in good order, specific and without mistake or you may lose your case.  An experienced real estate attorney from Los Angeles Jewish Lawyer’s network will guide you through this process so you will not lose your home due to a mistake in your filings.

In  Bank of Mellon v. Preciado, Nos. 1-12-AP-001360 & 1-12-AP-001361 (Cal. App. Div. Super. Ct. Aug. 19, 2013), the wrong party filed for foreclosure and they incorrectly served the defendant.  In Cansino v. Bank of America, ___ Cal. App. 4th ___ (2014) (Sixth Appellate District, filed 3/26/14), the plaintiff failed to plead with specificity his fraud allegation.  In both cases, we see that all parties and their attorneys need to be careful that they are accurate in all their filings or they risk losing the property.

The California Supreme Court published Preciado on March 19, 2014, because the Court dealt with two issues that demonstrated that the plaintiff bank did not have the right to evict the tenants of the property: improper service and a title that was not “duly perfected.”  In this case, the owner of the property was foreclosed on and the property was sold to Bank Mellon in a trustee’s sale that was conducted by Recontrust Company N.A. that was acting as the trustee for this sale on July 25, 2011.  Bank of Mellon served the defendants with written notice to quit and deliver the property to the Bank on September 1, 2011 and then filed an unlawful detainer action on December 19, 2011 against the former owner and tenants of the property.  In its proof of service, the Bank listed the property as being located in San Jose rather than Alviso where the property is actually located.  Finally, the Court noted that the registered process server did not provide sufficient evidence that he attempted personal service.

The Court reversed the trial judge’s judgment giving the Bank possession of the property.  The Court held that the service of the notice of eviction was not proper because the registered process server did not demonstrate that he attempted personal service. Under California Code of Civil Procedure Section 1162, there are three methods of service: personal service, substituted service and post and mail service.  The Bank attempted to use post and mail service, which is when you post the notice on the said property in a visible location and then mail the notice to the same property.  When one uses post and mail service though, s/he must attempt personal service first.  Here, the registered process server did not demonstrate through his affidavit that he attempted personal service.  So the Court reversed the judgment for failure to properly serve the defendants.

In addition, the Court looked into the issue of whether the title of the property after the trustee’s sale was “duly perfected.”  Code of Civil Procedure Section 1161(a) requires that a property owner make a showing that he/she/it owns the property and has “duly perfected” title prior to evicting any tenants of the property.  Here, Bank of  Mellon purchased the property at a trustee’s sale conducted by Recontrust Company N.A.  Yet Recontrust was not the trustee but was only “acting as trustee.”  No evidence was provided that Recontrust was substituted for the original trustee.  Therefore, the Court held that the sale was not valid and ordered the trial court to enter a judgment in favor of the former property owner and his tenants.

In Cansino, the former property owner challenged Bank of America’s foreclosure on their property.  In August 2005, America’s Wholesale Lender provided an Adjustable Rate Mortgage in the amount of $496,000 to refinance a mortgage that the plaintiffs already had on the property.  The plaintiff claimed that the representatives of America’s Wholesale Lender committed fraud in two instances.  First, the plaintiff claims that the Lender committed fraud when one its agents represented that the property is valued at $620,000.  Second, the plaintiff plead that the representatives of the Lender said that the value of the home would appreciate by the time that the plaintiff had to pay the principal.  The plaintiff claims that these representations constitute fraud because an appraisal done more than five years later valued the home at $350,000 to $400,000.  

The Court held that the fraud claims are without merit because they do not say with specificity which agent of the Lender made the claims.  The plaintiff only identified “lending personnel” as the persons who made representations about the future appreciation of the property.  Fraud allegations against a corporate entity requires more specificity as to how, when and by whom the representations were made.  The plaintiff failed to provide any of those details.  In addition, the Court held that the representations of the lending personnel was about future events and therefore constituted an opinion and was not actionable as fraud.

The Court also held that the valuation of the property at $620,000 was also not fraud because the plaintiff failed to provide specific details about “how, when, where, to whom and by what means” the information was given to the plaintiff.  The failure to provide said details does not give Bank of America an opportunity to rebut the claims.  This is why the Court held that this claim for fraud was invalid.  Finally, the Court refused to hear the claim that the Bank fraudulently concealed relevant information because the plaintiff again failed to plead such concealment with specificity.

The two cases above demonstrate the need to be especially careful when filing legal documents in a legal case.  In Preciado, we see that a Bank that did not strictly adhere to the rules regarding the sale of a foreclosed property and process service lost possession of the property.  In Cansino, we see that the failure to provide the necessary information in a pleading lost the plaintiff his case.

An experienced foreclosure defense attorney in Los Angeles from LA Jewish Lawyer’s network can ensure that you do not suffer from mistaken drafted or missing legal documents.  Call us today to see how we may help you with your real estate issue.

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