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March 9, 2010
YADIRA ORTIZ, PLAINTIFF,v.MORTGAGE IT, INC., ET AL., DEFENDANTS.
The matters before the Court are the Motion to Strike filed by Defendant Mortgage It, Inc. (Doc. # 23), the Motion to Dismiss (Doc. # 24) filed by Defendant Mortgage It, Inc., and the Motion to Dismiss (Doc. # 27) filed by Defendant America's Service Company.
On August 14, 2009, Plaintiff Yadira Ortiz filed a complaint in the Superior Court of the State of California for the County of San Diego. (Doc. # 1). On September 25, 2009, Defendant Mortgage It, Inc. ("Mortgage It") filed a Notice of Removal joined by Defendant America's Servicing Company ("ASC"). Id. Defendant Homefinders Realty was not served in the state court suit. (See Doc. # 2). On October 28, 2009, Plaintiff filed a First Amended Complaint ("FAC"). (Doc. # 14). The FAC alleges claims for: (1) rescission and damages under the Truth in Lending Act ("TILA"); (2) unfair business practices in violation of California Business and Professions Code § 17200; (3) declaratory relief; (4) breach of fiduciary duty; (5) constructive fraud; (6) fraud; (7) negligent misrepresentation. Id.
On November 16, 2009, Mortgage It filed its Motion to Strike (Doc. # 23) and its Motion to Dismiss (Doc. # 24). On November 17, 2009, ASC filed its Motion to Dismiss. (Doc. # 27). On November 24, 2009, Plaintiff filed an Ex Parte Motion for Temporary Restraining Order. (Doc. # 28). On December 9, 2009, the Court denied Plaintiff's motion. (Doc. # 38).
Plaintiff owns a home in Chula Vista, California located at 1477 Windchime Avenue. (Doc. # 14 at 6). Plaintiff refinanced her mortgage with Defendant Homefinders Realty on May 8, 2007. Id. Plaintiff was an unsophisticated borrower. Id. Homefinders Realty told Plaintiff that she would be able to reduce her monthly payments, but in fact, Plaintiff's mortgage payment increased. Id. at 6-7. Plaintiff's loan became unaffordable in late 2008 and Plaintiff "began exploring the possibility of a refinance." Id. at 7. While researching refinance options, Plaintiff realized the disclosures she received when she refinanced violated state and federal law. Id. Plaintiff was not provided with "the broker's early disclosures." Id. Homefinders Realty's agent failed to "offer a one day inspection prior to the settlement of the transaction." Id. Plaintiff's debt-to-income ratio was 74.98% before her mortgage rate adjusted and 103.601% after her mortgage rate adjusted. Id. at 8. Plaintiff was not properly informed of her right to cancel the loan. Id. at 9. Plaintiff received a document entitled "Right to Cancel," but the document does not include the date when Plaintiff's right to rescind expired. Id. Plaintiff's finance charges were miscalculated, resulting in an overstatement of the finance charges in her loan documents. Id. The interest Plaintiff would be charged was not clearly stated. Id. at 9-10. Plaintiff wrote a letter to ASC and Mortgage It rescinding her mortgage, which voided the loan on December 17, 2008. Id. at 7. However, Defendants "failed to take the required and appropriate actions to reflect the termination of any security interest." Id. at 11.
Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a) provides: "A pleading that states a claim for relief must contain... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
To sufficiently state a claim for relief, a complaint "does not need detailed factual allegations" but the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Fed. R. Civ. P. 8(a)(2)). When considering a motion to dismiss, a court must accept as true all "well-pleaded factual allegations." Ashcroft v.Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1950 (2009). However, a court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see, e.g., Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 683 (9th Cir. 2009) ("Plaintiffs' general statement that Wal-Mart exercised control over their day-to-day employment is a conclusion, not a factual allegation stated with any specificity. We need not accept Plaintiffs' unwarranted conclusion in reviewing a motion to dismiss."). "In sum, for a Complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted).
I. Federal Claim
Plaintiff's only federal law cause of action is a claim for violations of TILA. See Doc. # 14. Plaintiff's TILA claim alleges her loan was made without regard to her ability to pay in violation of 15 U.S.C. § 1639(h) because Defendants had a pattern and practice of making loans without regard to the borrower's ability to pay. Id. at 12. The complaint alleges the right to cancel notice "does not have a date the rescission expires... therefore, [] Plaintiff has an extended 3 year right to cancel this loan." Id. at 9. Additionally, the complaint alleges Defendants failed to provide "proper notices" and the documents Defendants did provide included false and misleading disclosures. Id. at 12. The complaint alleges her December 17, 2008 letter rescinding her mortgage was legally effective but Defendants never turned over the property to her. Id. at 11. The complaint alleges Plaintiff "is prepared to tender a principal amount after the appropriate credits are made for interest, finance charges, and any other fees or payments applicable under the statute." Id. at 12.
1. Contentions of the Parties
(a) Mortgage It's Motion to Dismiss
Mortgage It contends that Plaintiff received all required disclosures pursuant to TILA. (Doc. # 24-1 at 16). Mortgage It asserts that Plaintiff received and signed a notice of the right to rescind which contained the date upon which the right to rescind expired. Id. at 17. Mortgage It attaches a signed copy of the notice of the right to rescind containing the expiration date as Exhibit B to its motion. (Doc. # 25-1 at 4). Mortgage It contends that Plaintiff's right to rescind expired three days after the loan refinancing her mortgage was initiated and that the recision letter sent a year and a half after the loan initiation was ineffective. Id. at 20-21. Mortgage It contends that Plaintiff's TILA claim for damages is time-barred because they were brought more than a year after the loan was initiated. Id. at 18-19.
Plaintiff contends that dismissal is inappropriate because Plaintiff states in the complaint she did not receive notice of the expiration date of her right to rescind. (Doc. # 37 at 10). Plaintiff contends the Court may not take judicial notice of the signed notice of the right to rescind because "its contends are not 'alleged' in the complaint," the "contents cannot be easily verified," and it involves "a question of fact." (Doc. # 34 at 2, Doc. # 37 at 9). Plaintiff contends that the statute of limitations for damages runs from the date she filed her rescission notice, not from the date the loan was initiated. Id. at 11.
In its reply, Mortgage It contends that Plaintiff "fails to adequately explain why the court should not take judicial notice" of the signed notice of the right to rescind. (Doc. # 40 at 2). Mortgage It contends that Plaintiff has conceded that the Court may "'also consider documents outside the pleadings on a Rule 12(b)(6) motion if the documents are referred to in the complaint and are central to the plaintiff's claims.'" Id. at 3. Mortgage It contends that Plaintiff "fails to explain how or why the authenticity of documents bearing plaintiff's own signature should be questioned." Id.
(b) ASC's Motion to Dismiss
ASC contends that the one year statute of limitations for damages claims bars Plaintiff's TILA damages claims. (Doc. # 27-1 at 15-16). ASC contends that Plaintiff has plead facts which establish she is not entitled to equitable tolling. Id. at 16. Therefore, ASC contends that Plaintiff's TILA damages claims should be dismissed with prejudice. Id. ASC contends that Plaintiff cannot rescind the loan because the property has already been sold through foreclosure, which terminated her right to rescind. Id. at 17. ASC contends that Plaintiff's tender allegations are insufficient to allow her rescission claim to go forward. Id. ASC contends that contrary to Plaintiff's assertion that her notice of the right to rescind was incomplete, Plaintiff received and signed a notice of the right to rescind containing the date the right to rescind expired. Id. at 20. ASC attached the signed copy of the notice of the right to rescind containing the expiration date of that right as Exhibit C to its motion. (Doc. # 27-2 at 19).
Plaintiff contends that the statute of limitations for damages runs from the date she filed her rescission notice, not from the date the loan was initiated. (Doc. # 35 at 13).Plaintiff contends that her right to rescind was not terminated by the foreclosure sale because she demanded rescission before the foreclosure sale occurred. Id. at 14-15. Plaintiff contends she does not need to offer to tender the entire loan proceeds now, but can instead seek a court order allowing tender "in a reasonable time and manner" and "over a reasonable period of time." Id. at 17-19. Plaintiff contends that the request for judicial notice of the signed copy of the notice of the right to rescind "should be denied" because its authenticity is in question. Id., Doc. # 33 at 1-2. Plaintiff contends the Court may not consider the signed copy because "its contends are not 'alleged' in the complaint," and the "contents cannot be easily verified." (Doc. # 33 at 1-2).
2. Judicial Notice of the Notice of Right to Rescind
"A district court ruling on a motion to dismiss may consider documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the plaintiff's pleading." Parrino v. FHP, Inc., 146 F.3d 699, 705-06 (9th Cir. 1998) (quotation omitted). Also, "a district court ruling on a motion to dismiss may consider a document the authenticity of which is not contested, and upon which the plaintiff's complaint necessarily relies." Id. at 706. Allowing a district court to consider documents upon which the complaint necessarily relies "is supported by the policy concern underlying the rule: Preventing plaintiffs from surviving a Rule 12(b)(6) motion by deliberately omitting references to documents upon which their claims are based." Id. (citation omitted).
Plaintiff's TILA rescission claim is based on the notice of the right to rescind. Plaintiff references this document in her complaint and does not directly dispute the authenticity of the document. While Plaintiff contends there is "a question of fact," raised by the signed version of the notice of the right to rescind presented by Mortgage It and ASC, she does not contend that it is falsified, altered, or in any way inauthentic. Plaintiff contends it is "difficult" to gauge whether the document is authentic, yet is apparently unwilling to assert that it is, in fact, inauthentic subject to the pleading standard of Federal Rule of Civil Procedure 11. The Court will therefore take judicial notice of the notice of the right to rescind which Mortgage It attached to its Motion to Dismiss as Exhibit B and ASC attached to its Motion to Dismiss as Exhibit C. (Doc. # 25-1 at 4; Doc. # 27-2 at 19).
3. Statute of Limitations
A borrower's right to rescind under TILA may be exercised "until midnight of the third business day following consummation," if the borrower received the proper notice of that right.
12 C.F.R. § 226.23(a)(3). Notice of the right to rescind must include "[t]he date the rescission period expires." 12 C.F.R. § 226.23(b)(1)(v). If a lender fails to make material disclosures required in a notice of the right to rescind, then a borrower has the right to rescind the transaction within three years, pursuant to 15 U.S.C. § 1635. See also 12 C.F.R. § 226.23 (2009). Pursuant to 12 C.F.R. § 226.23(a)(3), if failure to make material disclosures extends the rescission period to three years, "the right to rescind shall expire 3 years after consummation, upon transfer of all of the consumer's interest in the property, or upon sale of the property, whichever occurs first."
A cause of action for damages arising under TILA must be brought "within one year from the date of the occurrence of the violation." 15 U.S.C. § 1640(e) (2009). The Ninth Circuit generally measures the statutory period in § 1640(e) from the date of the credit transaction, or the date the loan was consummated. See King v. State of Cal., 784 F.2d 910, 914 (9th Cir. 1986) (holding generally that, "the limitations period in Section 1640(e) runs from the date of consummation of the transaction"). A claim for damages based on violations of TILA's rescission provision must be brought within one year of the occurrence of the violation. See 15 U.S.C. §§ 1635(b), 1640(e); Miguel v. Country Funding Corp., 309 F.3d 1161, 1165 (9th Cir. 2002) (stating in dicta that "15 U.S.C. § 1640(e) provides the borrower one year from the refusal of cancellation to file suit" if the borrower provided the lender an effective rescission notice).
Plaintiff's allegations in the complaint that she did not receive a notice which contained "a date the rescission expires in compliance with" TILA are directly refuted by the signed copy of the notice produced by Mortgage It and ASC, which contains the correct date. This signed notice creates a rebuttable presumption that Plaintiff indeed received the notice she signed and Plaintiff has not alleged facts which rebut this presumption. As a result, Plaintiff's right to rescind expired three days after her loan was initiated. Plaintiff's TILA claim for rescission is therefore dismissed as time-barred.
Although Plaintiff asserts the statute of limitations on her TILA claim for damages began to run when she attempted to rescind her loan on December 17, 2008, all of the alleged TILA violations which are the basis of her damages claim relate to the origination of the loan, not to Defendants failure to accept her notice of rescission. See Doc. # 14 at 8-12. Plaintiff fails to allege any TILA violations which entitle her to damages relating to the rescission of the loan. See id. The statute of limitations on Plaintiff's TILA claim for damages ran one year from the origination of her loan on May 23, 2007. Plaintiff filed suit on August 14, 2009. Plaintiff's TILA claims for damages are therefore dismissed as time-barred.
II. State Law Claims
Neither the Notice of Removal nor the FAC assert that this Court has diversity jurisdiction over this action. The Notice of Removal asserts that federal question jurisdiction exists pursuant to 28 U.S.C. § 1331 by virtue of the TILA claims. (Doc. # 1 at 1-2). The Notice of Removal asserts this court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367 and 28 U.S.C. §1441(c). Id. The FAC asserts this Court has jurisdiction "pursuant to 15 U.S.C. § 1640(e) as to claims under the Truth in Lending Act." (Doc. # 14 at 4).
The federal supplemental jurisdiction statute provides: "[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). A district court may decline to exercise supplemental jurisdiction over a state law claim if:
(1) the claim raises a novel or complex issue of State law,
(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction
(3) the district court has dismissed all claims over which it has original jurisdiction, or
(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.
28 U.S.C. § 1367(c). Because the Court has dismissed all of the federal law claims, the Court declines to exercise supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(c)(3). See Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) ("A court may decline to exercise supplemental jurisdiction over related state-law claims once it has dismissed all claims over which it has original jurisdiction."); San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 478 (9th Cir. 1998) (district courts not required to provide explanation when declining jurisdiction pursuant to 28 U.S.C. § 1367(c)(3)).
IT IS HEREBY ORDERED that:
(1) The Motion to Dismiss (Doc. # 24) filed by Defendant Mortgage It, Inc. is GRANTED.
(2) The Motion to Strike filed by Defendant Mortgage It, Inc. (Doc. # 23) is DENIED AS MOOT.
(3) The Motion to Dismiss (Doc. # 27) filed by Defendant America's Service Company is GRANTED.
(4) Plaintiff's complaint is dismissed without prejudice as to Defendant Mortgage It, Inc. and Defendant America's Service Company.
(5) Plaintiff may file a motion for leave to amend the complaint within thirty days of the date of this order. Plaintiff must obtain a hearing date pursuant to the Local Rules of Civil Procedure before filing any motion for leave to amend. In the event no motion is filed, the Court will dismiss the entire action without prejudice and close the case.
WILLIAM Q. HAYES United States District Judge
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Sunday's crash of a Conair commuter flight was the first fatal crash involving a small regional jet in the nation's history. The 50-seat CRJ-100, which is made by Bombardier, is "a very, very safe airplane, and Conair is a sharp operator," Denver-based airline consultant Michael Boyd said Sunday.
Full Story:USA Today, Aviation Daily

subset: commoncrawl


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Number of results: 253
Order byAlphabetical order The most visited
BeachesPraia Grande - SintraJust as its name suggests, this is a grand and large beach and is a particular favourite among surfers and bodyboarders and has become a regular host of championship events in these sports. At the extreme north of Praia Grande is one of the largest (...)
BeachesPraia da ComportaLocated on the southern tip of the Tróia Peninsula, the huge sandy extent of Comporta Beach is a regular summer favourite, given good means of access and plenty of parking space. Forming part of the Sado Estuary Nature Reserve, Comporta Beach has (...)
BeachesPraia da AdragaNestling between cliffs artistically sculpted out by the sea, Adraga Beach is a firm summer favourite but also enjoys a loyal off-season clientele. They come for the well-preserved and natural environment to which the rocks, grottoes and tunnels add (...)
BeachesPraia das MaçãsAccording to tradition, this Beach takes its origin from the maçãs (apples) that would wash up on its sands, carried down to the coast by the Ribeira de Colares river. Popular in the summer, the Beach covers a substantial area with space for a range (...)
BeachesPraia da Bordeira ou CarrapateiraNearby the village of Carrapateira from where access is gained via a tarmac road, the wonderful Bordeira Beach extends over a broad stretch of sand that becomes one of the largest on the Algarve coast during low tide. A small river reaches the sea (...)
BeachesCosta de Caparica - Praias da vilaAnybody visiting modern Costa de Caparica can only experience difficulty in trying to imagine the small fishing village of squat houses and peaceful streets that existed just a short while ago. The last half of the 20th century saw this town undergo (...)
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BeachesPraia de Santa CruzSanta Cruz covers an extended stretch of sand that is divided up into various beaches named after the respective cafes with the Beaches of Navio, Mirante, Pisão, Física, Centro, Santa Helena, Formosa and Azul. The purity of both the waters and (...)
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text:
- Anonymous
- USA, Female, 25-30
- Novice Nomad
- 5 reviews
This is surly a party hostel, at 5 am the noise kept going. If I was looking for a party this would be the place. They did advertise that the dorm I was staying had a/c when I showed up no a/c in my room so I requested to be moved. The begrudgingly moved me to a room with a/c. Over all I would not go back here.
- anahidkaloyan
- Mexico, Female, 18-24
- Novice Nomad
- 6 reviews
Great location, price and atmosphere, staff is very attentive, everything is perfect except that it need to be more clean. I will totally stay here again.
Hostelworld Mobile Apps
Book on the go with the new Hostelworld mobile apps.


text:
Wired says that all markets will go to free as marginal costs of creating the service fall to 0. Its happening to pretty much every industry online.
Wired says that all markets will go to free as marginal costs of creating the service fall to 0. Its happening to pretty much every industry online.
Hehe, just been reading it before i hit your blog and wondered if you would quote it…🙂
I enjoyed the article and the video with it.
Here's a good article that relates the concept to porn on the internet:
Its even titled "Adapt or Die", like your blog. 🙂
More importantly, the article mentions indirectly that money doesn't go away completely, but instead where money is actually spent is just moved to a different area. Interactive sites (webcams) are doing very well these days. Some of the more successful ones can be down right scams, hiring people to pose as cam girls in social networking sites, and chat people up into joining, which soon rebills their credit card. I have known people that have worked inside of one. There are even successful dating sites that do a similar practice, having customer service people chat up/msg people to convert them over to paid mode. There will always be money to be made off of human inefficiencies.
My main point is that I don't believe all online markets will eventually go free, its just that where money is actually made will be shifted around with the tide.
Watched video from nokia conference posted on Guy Kawasaki blog. Also mentions about metering nuclear power…
Ta witryna doprawdy daje radę, głośno trzeba podkreślić: wszystko jest z nią wporzo – dobrze było do Ciebie
wpaść!😀 Pragnąłbym dowiedzieć się przy okazji, co sądzisz o mej działalności blogowej
– byłbym szczęśliwy, jeślibyś zajrzał/zajrzała.
.. Do następnego!


text:
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Toro y Moi gets psychedelic & funky with this alternate version of an 'Anything In Return' track
Tag Archives: Chaz Bundick
Filed: Featured, Music News, Reviews, Streams
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Ahead of his new album release next week, Neon Indian gives us another little teaser
NYC producer Skylar Spence has dropped his new album and damn is it good
Skylar Spence gives us another taste of his new album with this disco-funk-pop inspired jam
Neon Indian shares another new track and announces he has a new album on the way
Queen Magic shares his newest slinker, just ahead of his spot at Splendour this week
Filed: Featured, Music News
Toro y Moi has released three new mysterious tracks in as many weeks – what's he up to?
New York City's Neon Indian serve up a delicious slice of new synthy goodness
We give you our thoughts on Toro Y Moi's brand new album
– ★★★☆ by Renee Meznarsic
Toro Y Moi's new album drops next week and here's another of its tracks!
There's nothing like some new Toro Y Moi to brighten up the day
Toro Y Moi shares the lead-single from his upcoming album
Recent Les Sins collaborator Nate Salman delivers his debut single
Have you heard of a Melbourne producer/multi-instrumentalist called Queen Magic?


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August 25, 2009
IN RE R.O., A PERSON COMING UNDER THE JUVENILE COURT LAW.THE PEOPLE, PLAINTIFF AND RESPONDENT,v.R.O., DEFENDANT AND APPELLANT.
APPEAL from orders of the Superior Court of Los Angeles County. Charles R. Scarlett, Judge. Affirmed in part; reversed in part with directions. (L.A.Super.Ct. No. VJ33327).
CERTIFIED FOR PARTIAL PUBLICATION*fn1
This case raises the question whether the juvenile court has discretion to set a lesser term of confinement than the indeterminate sentence applicable to an adult convicted of the same offense as the juvenile. We conclude that the juvenile court has discretion to set a lesser maximum term of confinement "based upon the facts and circumstances of the matter." Therefore, we will remand the case to the court to exercise that discretion. In all other respects, the court"s orders are affirmed.
The Compton Varios 70s (CV70s) and the Compton Varios Segundos (CVS) are rival gangs. The boundary between their territories is Compton Boulevard. On an evening in October 2007 Danny Rodriguez, a member of the CV70s, was shot and killed near the intersection of Compton Boulevard and Williams Avenue. The Sheriff"s deputies who arrived at the scene a few minutes after the shooting interviewed several bystanders. One witness stated that the shooter ran south on Williams immediately after the shooting, but none of the people interviewed identified the shooter.
Nestor Morales, who was among the persons interviewed at the crime scene, told the interviewing officer that he was working at a taco stand on the corner of Compton and Williams when the shooting occurred. He heard gun shots and ducked for cover but "didn"t see anything." The officer who interviewed Morales testified that he only spoke to Morales for a short time and that Morales was trembling and appeared frightened and disoriented.
Eleven days after the shooting, deputy Shannon Laren met with Morales. Laren showed Morales a photo "six pack" and Morales immediately identified R.O. as the shooter. He did not hesitate in his identification of R.O. and he did not identify any other person before or after identifying R.O. At trial Morales identified R.O. as the shooter. He also testified that he recognized R.O. as a customer of his taco stand.
Undisputed evidence showed that R.O. lived two blocks from the intersection of Compton and Williams and that the shortest route from the murder scene to R.O."s house was south on Williams, the direction in which the shooter ran. R.O."s brother testified that R.O. was at home just before the shooting. A sheriff"s gang expert testified that R.O. was an "associate" of the CVS gang.
The juvenile court sustained the allegations of a petition charging R.O. with first degree murder and the use of a firearm in the commission of the crime. The court rejected the allegation that R.O. committed the murder for the benefit of a criminal street gang. The court ordered R.O. committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities for a period not to exceed 35 years to life, which the court believed was the mandatory sentence for an adult convicted of the same offense with a finding of true on the same enhancement. (Pen. Code, §§ 190, subd. (a), 12022.53, subd. (b).)*fn2
On appeal, R.O. maintains that the testimony of Morales, the prosecution"s only witness to the murder, was insufficient to sustain the petition and that the court erred in committing him to the Division of Juvenile Facilities and in failing to exercise its discretion in setting his maximum confinement period.
We conclude that the evidence was sufficient to sustain the petition and the court did not abuse its discretion in committing R.O. to the Division of Juvenile Facilities. We conclude, however, that the court erred in failing to exercise its discretion in setting the maximum term of confinement and we remand the matter to the juvenile court for reconsideration consistent with this opinion.
R.O."s guilt turned on the testimony of Morales, the taco vendor. R.O. challenges the sufficiency of Morales" identification testimony on the grounds that it was neither credible nor reliable.
R.O. argues that because Morales either lied to the police initially when he said he did not see the shooting, or lied 10 days later when looking at a photo "six pack" and still later at trial when he identified R.O. as the shooter, he is not a credible witness. R.O. cites no authority holding that if a witness makes inconsistent statements the later statement is unworthy of belief as a matter of law. On the contrary, the trier of fact determines which, if either, statement to believe and an appellate court will not substitute its evaluation of the witness"s credibility for that of the trier of fact. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Nonetheless, testimony that is "inherently improbable or impossible of belief" is insufficient to support a conviction. (People v. Jackson (1992) 10 Cal.App.4th 13, 21.) Morales" testimony was neither. The court reasonably could have ascribed his initial statement, just after the shooting, that he "didn"t see anything" to an instinctive wish not to get involved in a gang shooting, a desire not to be seen as a "snitch," or to a state of shock and fear arising from the incident. Furthermore, the court could also reasonably consider the change in Morales" identification as supporting rather than detracting from his credibility; having avoided involvement in the case by stating that he "didn"t see anything," and having no motive to lie, changing his statement was evidence of the truthfulness of his identification.
R.O. next argues Morales" identification was not reliable because eyewitness identification is flawed. Be that as it may, R.O. did not seek to introduce evidence of how any flaws may have effected Morales" identification of R.O.*fn3
Substantial evidence supported Morales" identification. Because Morales had seen R.O. at the taco stand before the shooting he was not identifying a stranger. When Morales was shown the photo "six pack" he identified R.O. immediately and without hesitation. He did not identify anyone else before or after identifying R.O. At trial, Morales, testifying under oath, confirmed his identification of R.O. Finally, the evidence that R.O. and the victim were associated with rival gangs and that the shooter ran in the direction of R.O."s home approximately two blocks from the scene of the murder corroborated Morales" eyewitness testimony.
R.O. contends that the juvenile court abused its discretion in committing him to the Division of Juvenile Facilities because there was no evidence that the commitment would be of ""probable benefit."" (In re Carl N. (2008) 160 Cal.App.4th 423, 433.) We disagree.
Factors relevant to determining the appropriate placement of a minor include the minor"s age, the seriousness of the offense, the minor"s prior record of delinquency, the threat the minor poses to the community, the minor"s mental sophistication, the effectiveness of prior rehabilitation attempts and the minor"s compliance with prior court orders. (In re Gerardo B. (1989) 207 Cal.App.3d 1252, 1256.)
The relevant facts compel the conclusion that the court ruled correctly in committing R.O. to the Division of Juvenile Facilities. R.O. was 13 years old when he committed the most serious offense possible, murder. R.O. had twice been arrested for taking a car without the owner"s consent. The first case was dismissed. He was placed on probation in the second case and violated that probation. R.O."s involvement in a gang showed that R.O. posed a threat to the community. R.O. had expressed suicidal ideations and had been hospitalized in the past. At the time of the murder he was receiving therapeutic services. On the positive side, one of R.O."s teachers reported that R.O. was attending school every day "and was doing very well in his academics and behavior." Thus, the evidence shows that commitment to the Division of Juvenile Facilities will benefit R.O. by permitting him to continue his therapy and education away from the influence of the gang environment.
After finding that R.O. committed a first degree murder in which he personally used a firearm, the court concluded that it had no choice but to set a maximum term of confinement equal to the mandatory sentence applicable to an adult convicted of the same offense.*fn4 R.O. argues that the court erred in concluding that it lacked discretion to impose a lesser period of confinement. We agree.
Prior to January 2004, Welfare and Institutions Code section 731, subdivision (b)*fn5 stated in rele.vant part: "A minor committed to the Department of the Youth Authority may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses that brought or continued the minor under the jurisdiction of the juvenile court." (Italics added.)
Effective January 2004, the Legislature amended section 731, subdivision (b), (now subdivision (c)), to read as follows: "A minor committed to the Department of the Youth Authority also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section."*fn6 (Italics added.) (Sen. Bill No. 459 (2003-2004 Reg. Sess.) § 1, enacted as Stats. 2003, ch. 4, § 1.)
The authority to consider the "facts and circumstances of the matter" necessarily implies the authority to impose a term shorter than the term applicable to an adult for the same crime.*fn7 Therefore, the court erred when it concluded that it lacked discretion to impose a term of confinement less than the indeterminate term that would have been imposed on an adult convicted of the same offenses.
The Attorney General, however, argues that section 731 not only sets a ceiling on the court"s choice of a juvenile"s period of confinement, it also sets a floor. Relying on Joseph M. (2007) 150 Cal.App.4th 889, the Attorney General reasons that because an adult convicted of first degree murder with the use of a firearm would be subject to a mandatory indeterminate sentence, it follows that the minimum confinement term for R.O. must be the same, there being no low, middle or upper term that the court could select. This result, the Attorney General contends, is consistent with the Legislature"s goal in amending section 731 to insure that juveniles and adults serve comparable terms. He also argues that his interpretation of section 731 would avoid the "potentially bizarre result" of a minor who committed murder being confined for a shorter period than a minor who committed a less serious crime.
We reject the Attorney General"s interpretation because the plain language of section 731, subdivision (c), which requires the court to consider the "facts and circumstances of the matter," explicitly vests in the court discretion to select a period of confinement that is less than the minimum mandatory indeterminate sentence.
The Attorney General"s reliance on Joseph M. is misplaced. In Joseph M., the court held that if an adult committing the same offense as the minor would be sentenced under the triad structure of the determinate sentencing law, the juvenile court may not order a period of confinement that is less than the lowest term in the triad to which the adult could be sentenced, plus enhancements. (150 Cal.App.4th at pp. 896-897.) Thus Joseph M. is inapposite because our case involves the interpretation of section 731, subdivision (c) as it affects cases involving indeterminate sentences, not determinate sentences.*fn8
The decision in In re H.D., supra, 174 Cal.App.4th 768, rejected, as we do, the Attorney General"s argument that the Legislature intended juvenile offenders and adults to serve comparable sentences. In re H.D. held that the juvenile court, in exercising its discretion under section 731 with respect to an offense carrying a triad sentence was not limited to imposing either the upper, middle or lower term, as would be the case in sentencing an adult, but could select a term in between the three. (174 Cal.App.4th at p. 776.) The court reasoned that "absent some legislative direction" "the wholesale importation of the [determinate sentencing law"s] triad sentencing scheme into the Juvenile Court Law would be inconsistent with [the juvenile law"s] sentencing structure[.]" (Ibid.) The amendment to section 731, subdivision (c) "contains no such direction," the court concluded. (Ibid.) On the contrary, the court held, "the statute ties the court"s exercise of discretion to "the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court," strongly suggesting that the court should endeavor to tailor the disposition to the offender and the offense rather than attempt to shoehorn the punishment into a one-size-fits-all sentencing scheme." (Id. at pp. 776-777.)
In re Carlos E. (2005) 127 Cal.App.4th 1529 further supports our interpretation of section 731. In that case the court stated that "[p]roof the juvenile court"s decision is not tied directly to the adult system is found in the language utilized; the juvenile court is to consider the facts and circumstances of the matter, rather than being restricted solely to the aggravating or mitigating circumstance scheme for adults. The juvenile court"s determination must be tied to the purposes of the juvenile system, which include the protection of the public as well as the rehabilitation of the minor. (§ 202.) [¶]... [¶] [T]he juvenile court must determine the maximum period of confinement... based on the facts and circumstances, this maximum may not be more than that for a comparable adult, but may be less." (Id. at p. 1542.)
We recognize that both In re H.D. and In re Carlos E. were cases involving adult determinate sentences rather than an indeterminate sentence as in the case here. We see no reason, however, why the courts" reasoning in those cases should not apply in this case.
Legislative history confirms our conclusion as to the intent of section 731, subdivision (c). As the court in In re Carlos E. recognized, the rationale for the change in section 731 arose out of a concern for the Youth Offender Parole Board"s "tendency to increase the... length-of-stay beyond the board"s own guidelines and the board"s lack of program expertise...." (In re Carlos E., supra, 127 Cal.App.4th at p. 1541.) Thus, "[t]he Senate Rules Committee analysis states that current law provides that the maximum period of imprisonment is the term a similarly situated adult would receive, but this bill "would additionallyprovide that a "minor committed to the Department of Youth Authority also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstance of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court.""" (Ibid., boldface added by the court, quoting from Sen. Rules Com., Analysis of Sen. Bill No. 459 (2003-2004 Reg. Sess.) p. 4.)
Our interpretation of section 731, subdivision (c) is consistent with a 150 year tradition of maintaining two separate and distinct criminal justice systems-one for juveniles and one for adults.*fn9 Describing California"s original juvenile justice legislation, our Supreme Court observed: "The purpose in view is not punishment for the offenses done, but reformation and training of the child to habits of industry, with a view to his future usefulness when he shall have been reclaimed to society, or shall have attained his majority." (Ex Parte Ah Peen (1876) 51 Cal. 280, 281.) Today those same principles are embodied in section 202 which states that the purpose of the juvenile justice system is "(1) to serve the "best interests" of the delinquent ward by providing care, treatment, and guidance to rehabilitate the ward and "enable him or her to be a law-abiding and productive member of his or her family and community," and (2) to "provide for the protection and safety of the public...." (§ 202, subds. (a), (b) & (d); [citations].)" (In re Charles G. (2004) 115 Cal.App.4th 608, 614-615.)
Finally, we disagree with the Attorney General"s argument that our interpretation of section 731 will lead to the "potentially bizarre result" of terms of confinement in which teenage murderers will serve less time in confinement than juveniles who commit less serious crimes. We have no reason to believe that in setting the maximum period of confinement for a murderer or a joy rider the juvenile courts will not set appropriate terms based on the facts and circumstances of each case. Nor by this opinion do we intend to suggest how the juvenile court should exercise its discretion in this case. We only hold that pursuant to section 731 the juvenile court must exercise its discretion based on the "facts and circumstances of the matter."
The cause is remanded to the juvenile court with directions to vacate its order setting R.O"s maximum term of confinement and to enter a new order based on its exercise of discretion pursuant to section 731, subdivision (c), and in conformity with the views expressed in this opinion. In all other respects the court"s orders are affirmed.
We concur: MALLANO, P. J., CHANEY, J.
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Monday, 3 March 2014
Review: Where the Rock Splits the Sky by Philip Webb
Publisher: Chicken House
Format: Paperback / eBook
Released: March 6th, 2014
Rating: 5/10
Amazon summary:
Where Megan lives it's forever dusk: an endless indigo sky above a wounded land that's slowly dying. Ever since the 'visitors' came, the world has stopped turning. No one sleeps, everyone's afraid. But Megan wants to know what's coming. She'll stop at nothing to save those she loves. She'll ride across a forsaken wilderness to where the rock splits the sky to set the world spinning again - and discover what she's truly made of.
Where the Rock Splits the Sky was a strange book for me. It started off well and drew me in, but by the halfway mark it seemed to go in a completely different direction. I think my main problem was that it didn't know what it wanted to be, and instead in ended up being part dystopian sci-fi and part western. The two angles didn't mesh at all, and I think a little more focus would have made a huge difference.
It's all well and good me sitting here writing this review complaining about a book, but of course I didn't write it and I appreciate how much time and effort went into creating this story. There are elements which I liked, including the initial premise and the main protagonist, Megan. I just wish there had been more time dedicated to explaining and exploring the state of the world, the effect of the world ceasing to turn and the devastation it caused. That was a brilliant idea and the best part of the book, though sadly underused in my opinion.
This was the first of Philip Webb's books I've read and I was surprised by how much I enjoyed his writing. I was completely lost in Megan's new world until it because more western than sci-fi, though that's no reflection on the writing! Where the Rock Splits the Sky could have been amazing, but for me it just missed the mark and didn't quite live up to expectations. I'm keen to read more by Philip Webb, though, and I hope I'll enjoy myself a bit more than I did in this instance.
1 comment:
- So Many Books, So Little Time said...
I'm reading this at the moment and though I love the writing style, it's not quite pulling me in.
- 3 March 2014 at 19:45
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